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HR Handled Right

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sexual harassment complaint

I spent the first two years of my professional life working with people who initially saw me as the devil. These were mothers and fathers who had been ordered by the courts to either come see me or face losing permanent custody of their child, who was already in foster care due to allegations of abuse or neglect. My job as a clinical psychologist was to see whether or not the family was salvageable and, if so, to see if I could help put it back together.

Workplace investigations aren’t as adversarial as the court system but they do have some things in common – high stakes, multiple perspectives, and – sometimes –a strong motivation to lie. Two things I’ve learned from working with people under difficult circumstances – 1) people don’t talk to someone they don’t trust, and 2) even under the direst circumstances, most people will respond to genuine attempts to understand them. That being said, here are some of the strategies that help me establish rapport when I’m conducting an independent investigation:

  1. Acknowledge the emotions each person is feeling. Each person involved in an investigation has feelings about his or her involvement; the complainant may feel humiliated or scared, the respondent defensive or guilty, and witnesses may be confused or annoyed. Clues to these feelings are found in the way s/he tells his or her story; to ignore them is to ignore the elephant in the room. Acknowledging the emotional tone as well as the content of what someone is saying lets them know you’re trying to see things from his/her perspective – regardless of whether or not you agree with it.
  2. Establish your right to be there. You aren’t the only one with questions. At the top of the interviewee’s list is, “Why should I trust you?” Tell your interviewee why you have the right to be there based on your experience, expertise and empathy. I typically tell interviewees a little bit about my background as a private investigator and psychologist, specifically focusing on my experience as an unbiased, neutral party. If I’ve done work for the company before, I make sure s/he knows (without, of course, revealing specifics). If the HR person has a good rapport with the interviewee, I might have him or her introduce us. During the interview, I look for shared experiences that might help us connect, whether it’s the tough traffic we both experienced driving to work or a common educational experience. In other words, I do whatever I can to let the person know s/he is in good hands.
  3. Show an interest in the person, not just the process. After the introduction, I typically start an interview by asking general questions about the person’s day to day job functions or history with the company. If the interviewee has a difficult or unusual name, I ask him or her how to spell it. Yes, I already know the answers to these questions; I’ve already reviewed personnel files. However, the purpose of these questions is not to get answers; it’s to let him or her know I’m interested in him or her as a person, not just in relation to the specifics of the complaint.
  4. Remove physical barriers. There are countless psychological studies that show the unconscious impact physical barriers can have on our ability to connect with another person. Take them out of the equation; don’t sit behind a desk and choose a seat that is facing in the same direction as your interviewee. Similarly, think long and hard before putting objects between you and the interviewee; tape recorders often inhibit a person’s willingness to speak freely. This is one of the reasons I prefer to take notes instead.
  5. Forget mirroring. I always bristle when I read advice like, “Mimic the other person’s body posture and gestures.” It sounds so manipulative. Also, can we really be listening to the other person if we’re preoccupied with wondering whether enough time has lapsed before we can cross our right leg over our left just like our interviewee has just done? Trust me; if you’re really paying attention, your body will automatically communicate this – you’ll look the interviewee in the eye, you’ll lean forward slightly when the other person is talking, etc.

The Bottom Line

Interviews are the most important part of a workplace investigation and the ability to establish rapport one of the most critical skills. Establish rapport by easing into the interview, acknowledging the emotions as well as the content of what the interviewee is saying. Let him or her know why you have the right to be there and why he or she can trust you to be fair and objective. Make connecting with your interviewee just as important as getting “the truth;” after all, without the former, you won’t get to the latter. No one confides in someone s/he dislikes.

 

Consider the following three scenarios:

Your manager finally sits down with Employee A to discuss her lack of clothing in the workplace. Instead of the satisfactory resolution you envision, she responds by complaining of sexually harassing comments by several of her coworkers. This is the first anyone has heard of it, in spite of the fact that you recently conducted a series of informal employee satisfaction interviews in which you specifically asked members of her team about inappropriate conduct.

Employee B’s hours were recently reduced because he refused to be cross-trained for another position to fill his time. He also has several reprimands in his file and, according to his manager, he was just told he was in danger of losing his position altogether. Today you receive a certified letter accusing several employees of sexual harassment.

Employee C was promoted to manager a year ago because of her outstanding work ethic and amazing technical skills. However, it has become increasingly obvious that her interpersonal skills are getting in the way of her ability to lead. According to her manager (who has come to you in desperation for help), he has bent over backwards trying to get her to soften her feedback to her direct reports and spent excessive time mediating between this manager and managers she is supposed to coordinate with in other departments. When you meet with this employee, she is initially defensive about her manager’s concerns. Then, out of the blue, she tells you that she believes her manager is retaliating against her because she has turned down his requests for dates.

Timing Matters

You have a very clear sexual harassment policy in place. You’ve trained your managers (and, hopefully, your employees) on what is unacceptable conduct in the workplace. You’ve encouraged them to come forward with any concerns. So, when mum’s the word until an employee’s back is up against the wall, it can be very hard to view a sexual harassment complaint with an open mind.

However, some investigators automatically assume that a complainant’s prior poor work performance or poor credibility on other issues is enough to support their decision that the complainant is lying. This is a big mistake. Even poor performers can be harassed, and there are a myriad of reasons – legitimate and otherwise – why a sexual harassment victim might wait until her job is in jeopardy before filing a formal complaint.

But Not as Much as the Facts

Much more relevant is the credibility of the complainant as revealed by the facts of the specific complaint. For example; a complainant tells you her deteriorating work performance is due to the sexual harassment she has suffered over the past several months and names several coworkers whom she has allegedly talked to during this time. Yet, when you interview them, you discover a) that the focus of these conversations centered around her pending divorce, b) at no point did she mention inappropriate sexual conduct and c) her difficulties with the allegedly harassing manager seemed to be due to his refusal to transfer her to a job site closer to her home.

On the flip side is the manager who denies ever engaging in inappropriate conduct in spite of the evidence against him. What comes to mind is the investigation I recently completed during which an employee accused her manager of inappropriate touching, a claim which the manager staunchly denied. There were no witnesses, the manager had a long and productive history with the company, and the families of the two parties were friends. And yet, in spite of the serious doubts about the complainant’s credibility, routine video surveillance clearly revealed the alleged conduct.

Avoiding Retaliation

If it is extremely clear that an employee filed a false complaint, then she/he can never be trusted. However, if there is doubt, and you now accuse the employee of making a false complaint, you will likely face a charge of retaliation. If you doubt the complainant’s veracity because of prior work related issues, have an independent investigation be conducted by a neutral organization. Allow that organization to draw its own conclusions without knowing about whatever credibility concerns that you have.

The Bottom Line

The timing of sexual harassment accusations is something that judges and juries take into account when assessing the credibility of accusations, but it’s only one element. If there’s strong evidence that sexual harassment took place, the case could survive the suspicious timing of the allegations. If the evidence is weak, the timing will work in your favor.

 

Few things are as humiliating as being asked to discuss your sex life with someone you work with, or, potentially worse, a complete stranger. Whether or not you’ve done something that warrants it.

In fact, given the situation, it’s almost impossible for a person accused of sexual harassment not to become defensive. This can lead an investigator to conclude either a) the person must be guilty (why else would he be reacting this way?), or b) the person must be innocent (he must have been wrongly accused to be so upset).

In reality, the emotional reaction of the accused has little to do with whether or not the person actually did what s/he is accused of. In fact, whether or not the accusations are true, the person who’s been accused of sexual harassment often feels just as victimized as the person who’s made the complaint.

Common Mistakes When Interviewing the Accused

This can create problems for the investigator. Interviewing a person who’s been accused of sexual harassment can be as uncomfortable for the novice investigator as for the accused. As a result, it’s easy for him/her to fall into some common traps, such as:

  • using subterfuge in an attempt to get at “the truth.” This ploy usually involves a) trying to ambush the respondent, or b) failing to provide sufficient details to allow the accused to address the allegations against him or her. Employers sometimes try to take the respondent by surprise to see how he or she reacts to the complaint, thinking this will prevent the accused from having time to make up a story. However, the principle of procedural fairness dictates that the respondent should be advised that a complaint has been made and also advised that he or she will be given an opportunity to respond. Another error is to arbitrarily refuse to provide the identity of the complainant or details of the allegation in a sincere but misguided attempt to protect the complainants. However, failing to provide this essential information (without a very good reason, which will be discussed in a later article) makes it very difficult for respondents to adequately defend themselves.
  • acting as if the accused is guilty. Employers often suspend respondents during a harassment investigation. Doing so without pay, though, is tantamount to disciplining the accused before a determination has been made. In fact, using the word “suspension” – even with pay – is suspect. When needed, it is much more preferable to e to simply advise respondents (and complainants, where appropriate) that they will be placed on a leave of absence with pay until the investigation is complete.
  • subtly colluding with the accused. This trap is the other side of the investigative coin – showing bias in favor of the accused. This involves subtly implying that the complainant is either over-reacting or lying; this is especially likely when the complainant has a history of complaining or a poor work history. This can also happen when the accused is a high level executive or someone who is seen as too valuable to lose.

The Bottom Line

In the next article we’ll take a look at how to effectively interview the accused. For now, though, keep in mind that there are psychological traps, or biases, than can easily creep into interactions with the respondent. Fortunately, a bias recognized is the first step in a bias sterilized.