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HR Handled Right

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sexual harassment investigation

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.

 

Workplace investigations are tough enough without the office grapevine gossiping about who did what to whom. As such, it’s standard practice to ask anyone who participates in an investigation to keep their mouths closed about what is discussed behind the closed doors. A new ruling from the National Labor Relations (NLRB), however, suggests that a blanket “keep your mouth shut” mandate may be improper.

The Case behind the Concern

Like many investigators, the HR director for Banner Heath Systems asked workers involved in an in-house investigation to not talk about the investigation with their co-workers. However, James, one of the employees involved objected that this request violated the rights of employees to discuss the terms and conditions of their employment with their coworkers. The National Labor Relations Board sided with James, saying that blanket requests for confidentiality during an investigation are overly broad and might have a chilling effect on appropriate – and legally protected – communications.

So what’s an Investigator to do?

This is a new ruling (July 30, 2012) and time will tell what this means from a practical standpoint. However, the NLRB’s ruling does offer some guidance. First of all, investigators can still ask witnesses to keep quiet as long as they have a legitimate business interest in making the request. This business interest must extend beyond the usual “we’re trying to protect the integrity of the investigation” reasoning.

So what business interest is legitimate? It is one that arises from that particular investigation. Perhaps, for example, the facts you’ve uncovered so far suggest that the accused might try to intimidate witnesses if s/he learns they will be talking to an investigator. Perhaps you haven’t had a chance to retrieve some valuable evidence and are concerned that, if the investigation leaks out, it might be destroyed before you have a chance to do so. Or perhaps you have reason to believe (again, based on what you’ve uncovered) that a group of witnesses might get together and “get their stories straight” before you have a chance to interview them individually.

In addition, when you do feel requests for privacy are warranted, limit the scope as much as possible. For instance, ask that the witnesses not discuss the investigation as long as it’s active or during work hours or on company property.

The Bottom Line

In every investigation, investigators walk a tightrope, trying to balance a number of competing interests. This recent ruling extends those competing interests to include the need to maintain confidentiality and employees’ rights to discuss the conditions of their employment. For now, the best solution during an investigation is to avoid blanket requests for privacy, articulate valid reasons for privacy requests when they occur, and make sure your requests are as limited as possible.

 

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.

 

Most internal investigation courses do a great job talking about the law and how it applies to offensive behavior complaints, but fail to educate their students on the psychology involved. Here are a few ways in which an investigator can follow the letter of the law and still lose:

Treat Your Employee as a Plaintiff

You may have the most laid-back company on earth, but as soon as an employee complains of sexual harassment, it’s a whole new ball game. Employment attorneys, whose job it is to CYA, immediately jump into litigation mode and begin to anticipate every possible legal curve ball that your employee could throw at them. This creates anxiety in HR professionals, which changes how they interact with the complainant.

The employee, who is already paranoid about what will happen now that she’s opened her mouth, has her worst fears confirmed. She feels like a pariah, she is left in the dark about what’s happening, and she is convinced that the retaliation she feared would happen has begun.

Ignoring the perception of bias

It doesn’t matter if you have the calm of the Budha or the rational mind of Socrates, if the parties involved think you are biased, then, for all intent and purposes, you are. Never think your stellar investigation will persuade them otherwise. There are ways to assess this at the beginning of the investigation; make sure you do. Otherwise, you run the risk of conducting an internal investigation, having a dissatisfied party, and then calling me to do another one.

Talking Like a Lawyer

“You are being terminated for sexual harassment.” Really? Last time I checked, sexual harassment is a legal finding that can only be determined in a court of law. The accused may be guilty of a violation of company policy or misconduct, but don’t call it sexual harassment. Only a judge or jury can decide this.

Focusing on the Wrong Issue

Yes, it is unbelievably frustrating when you’ve done everything in your power to encourage your employees to speak up – conducted highly interactive harassment prevention training, routinely asked your employees how things are going, queried about any interpersonal problems as part of the performance review – and your employee is silent as death. Silent, that is, until his performance is under the gun or you’re speaking to her about her tendency to under-dress.

However, now is not the time to express that frustration. I can’t tell you how many times I’ve been conducting an independent investigation and the complainant kept telling me how “all the HR person focused on was why I didn’t say anything before now.” Yes, the fact is relevant – it is pertinent when assessing the complainant’s credibility, it is relevant to possible motives, etc. However, don’t spend time interrogating your complainant about why she kept her mouth shut until now; it will come back to haunt you.

The Bottom Line

Conducting a good offensive behavior investigation isn’t just about following the law; it’s about understanding the psychology behind it.

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.

or many employees-turned-plaintiffs, the unsolicited advances, kisses, groping and requests for sexual activities from a boss or coworker are less injurious than the humiliating and biased sexual harassment investigation that followed her complaint. The investigator who is good friends with the accused, the manager who makes an insensitive comment or the fact that the alleged offender is a senior officer – any of these can lead an upset complainant running into the nearest attorney’s office.

Believe an Investigator is Biased and You’ll See It

It doesn’t take much. In fact, although folk wisdom usually has it that “seeing is believing,” a study published in the September 2009 issue of the journal Psychological Science suggests that “believing is seeing,” too – at least when it comes to perceiving other people’s emotions. Researchers found that the way we initially think about the emotions of others biases our subsequent perception (and memory) of their facial expressions. So once as person initially interprets an ambiguous or neutral look as angry or happy, she or he will later remember and actually see it as such. In order words, thinking has a noticeable effect on perceiving.

This research adds credibility to what misconduct investigators already know; when a complainants believe his or her motives are being questioned or that HR is partial or sympathetic to one side or another, s/he is more likely to see “evidence” to support this belief. In this situation, the internal investigator doesn’t have to do anything wrong for an upset complainant to believe the investigation was either whitewashed or an outraged accused to argue that the conclusion was merely a pretext for firing the individual without breaching his or her contract. This is just one of the circumstances where it pays to bring in an outsider.

Avoid Conflicts of Interest

EEOC Chairwoman Castro has repeatedly emphasized the EEOC’s position with respect to the importance of using outside investigators to conduct investigations into suspected discrimination or harassment. Specifically, Chairwoman Castro noted that the use of outside investigators is important:

1) where the employer lacks the resources to conduct investigations in-house

2) where the employer wishes to have an objective and unbiased party investigate the conduct at issue;

3) where the conduct complained of was perpetrated by very high-level employees within the company.

Although the EEOC does not generally require employers to use outside parties to conduct investigations into harassment claims, the EEOC has expressed the view that using outside investigators is important in certain circumstances, and may even be necessary where the accused harasser is a senior company official or where there is otherwise a conflict of interest. Examples of such conflicts include situations where an investigator:

* Has a personal relationship with either party.

* Has witnessed any alleged material occurrence.

* Has very strong feelings about either the complainant or the accused

Thus, employers who indiscriminately conduct internal investigations not only lose what advantages exist for having neutral third parties conduct such investigations, they risk running afoul of EEOC guidance.

Making a Case for Independence

 

In addition to reassuring a complainant that the investigation is fair and impartial, hiring a third party reduces the risk that an employee will be disciplined or discharged for something he or she did not do and provides a powerful defense against a claim that the company condoned unlawful conduct in the workplace.

Employers should consider using an outside investigator for four reasons:

1) Promptness. Misconduct investigations should, as a rule, be completed within two weeks of the initial complaint. The outside investigator will be brought in specifically for the purpose of carrying out the investigation and will not require that someone from the organization find time in his or her schedule to do the work.

2) Expertise. Outside investigators are specialists whose expertise results in a more thorough investigation. This expertise is particularly critical when the allegations are serious in nature and the stakes are high, such as sexual assault. In addition, outside investigators have the courtroom experience that will make them a powerful witness should the complaint eventually go to trial.

3) Impartiality. Although the employer hires the investigator, there still is the sense that the investigation is not an “inside” job. Employees are generally more open and more willingly share more information with an outsider who will not have to “live” with either the accused or the accuser after the investigation. This is especially true when the allegations are against a high-ranking individual.

4) Confidentiality. There is a strong need for confidentiality during a misconduct investigation. Hiring an outside party, who is more likely to be perceived as an authority figure, reduces the odds the complaint process will be a topic of water cooler conversation and reassures the complainant that s/he will be protected from retribution.

The Bottom Line

Former Supreme Court Justice Potter Stewart once said that Fairness is what justice really is. Increasingly, the fairness scales are tipped in favor or employers who use outside investigators to investigate misconduct allegations, particularly when they involve a potential conflict of interest, possible litigation, or high-ranking individuals.