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HR Handled Right

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sexual harassment

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.

Interviewing an employee who has been accused of sexual harassment is not for the faint of heart. As we saw in Part 1, it is natural for the accused to feel defensive, angry and victimized – whether or not s/he is innocent or guilty. However, there are some specific strategies you can use that will help you get at the truth without antagonizing the accused.

Hyper Smash

The Beginning of the Interview

As an outside investigator, I’ve yet to interview an accused employee who doesn’t already have some clue of the allegations against him /her. This is because HR has often interviewed the employee already either 1) as part of the initial investigation and before the decision was made to outsource it; or 2) to let the accused know about the investigation and that I will be contacting him/her.

If you’re an internal investigator, though, you will be tasked with letting the person know about the complaint. At the outset of the interview, explain the company’s policy against sexual harassment and give the accused a general overview of the issue that needs to be investigated.

I’m often asked what to do if the accused refuses to cooperate. The first step is to try to get the accused to talk about why s/he is reluctant to participate in the process and try to alleviate these fears/concerns. (If one of the fears is that HR can’t be neutral, consider hiring an outside investigator). If the employee still refuses to cooperate, explain that you still have an obligation to investigate the issue and if he/she does not provide you with relevant information, you will have to rely on other information — from others interviewed — and that the employee’s willingness to cooperate will be noted as a factor in the investigation.

The Meat of the Interview

Effective questioning starts before the interview begins. You should have already interviewed the complainant; before you meet with the accused, ask yourself what you need to know from this employee, how to present the question so as to gain accurate information, and develop a possible list of questions to use if the interview bogs down. In addition:

  • Start the investigation with broad questions and proceed to more narrow questioning as the interview moves forward.
  • Don’t begin with hostile or tough questions; they can cause the person to become defensive.
  • Save unfriendly or embarrassing questions (such as specific allegations of sometimes obscene behavior) until towards end of the interview.
  • Ask questions that elicit relevant information and the relating of events chronologically. You may even suggest that the employee present his/her reactions chronologically if that approach is helpful to them.
  • Do not put words into the employees mouth by asking questions in such a way that they suggest answers.
  • Review your understanding of the information you are being told.
  • After obtaining as much information as possible, review your notes regarding the specific allegation and ask about each of those not previously addressed by the employee.
  • If the accused denies the allegations or claims that some or all of the accused’s behavior was mutual or otherwise welcomed by the complainant, ask for any supporting evidence or witnesses that the accused can identify. If the complaint is denied, explore with the accused whether the complainant would have any motive to fabricate a complaint.

Ending the Interview

In a sexual harassment investigation, confidentiality is a concern for everyone. At the close of each interview, remind the accused that s/he must not discuss the complaint with anyone s/he works with. Tell him or her to come to you with any additional questions, concerns, or additional information.

Try to create a sense of predictability as much as possible. For example, outline when you anticipate completing the investigation, what will happen when it’s over (for example, that a report will be submitted to_____, that they will be allowed to read and respond to that report, etc.) Lastly, remind the accused that, in this sensitive situation, even the most innocuous comment can be misconstrued so it is crucial that the alleged harasser not retaliate or treat the complaining employee in any negative way.

The Bottom Line

Sexual harassment investigations are pleasant for no one, but – done right – they can lead to a successful resolution and better work environment.

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.

One of the biggest frustrations I hear from my plaintiff attorney colleagues is this; jurors (and most people for that matter) have a very hard time understanding why anyone would put up with sexual harassment for weeks or months without doing anything about it.

In fact, ask 100 people on the street what they would do if some creep at work was coming on to them and 90 of them will say they would take some kind of action – tell the person to knock it off, go to HR or punch the guy (or gal) in the mouth. However, if you ask 100 people who have been in that situation what they actually did, you’ll get very different answers. The vast majority will tell you they either a) tried to ignore it; b) tried to stay away from the person; or c) found another way to get out of there (asked for a transfer or quit).

The Top Reason Employees Keep Their Mouths Shut

So why don’t intelligent, usually assertive employees speak up right when the offensive behavior starts? Hands down, the number one reason is this: “I’m afraid of what will happen.” Most employees realize that once the proverbial cat is out of the bag, there’s no way to put it back in – and they no longer have control over where it goes.

Just about anyone who’s thought about speaking up is terrified of what will happen if they do. Before s/he speaks up, s/he is just a regular employee. However, the minute the employee complains about offensive behavior, s/he becomes something far more sinister in many executive’s eyes. A complainer. A prospective litigant. A financial threat. And, all too often, the corporate fear surrounding this new role gets communicated in a myriad of ways.

When the Fear is Justified

Unfortunately, some employees can cite very good, company-specific reasons why they should keep their mouths shut. “I saw what happened to the last person who complained.” “My manager does the same thing and no one cares.” “HR can’t keep their mouths shut.”

It’s not just about how previous sexual harassment complaints have been handled; employees are all too aware of how employee complaints in general are dealt with. An employee who walks through a manager’s open door policy only to encounter a closed mind behind it learns pretty quickly the difference between policy and practice.

So What’s HR to Do?

Fear of retaliation is natural. I don’t think there’s any way to completely alleviate it. However, there are some things HR can do to minimize it, both before and after a complaint:

  • The most important step senior executives can take in this area is simply to communicate ethical expectations more clearly to employees. In fact, research suggests that improving clarity of expectations and disciplinary guidelines can reduce misconduct levels by more than 40%
  • Managers and supervisors should be trained on how to handle employee concerns and how to instill a corporate culture in which employees raise concerns without fear of reprisal. Employees not only expect their managers to know what to do when faced with an offensive behavior complaint, they expect them to do it with tact and sensitivity.
  • All employees should be put on notice (e.g., through training and the employee handbook) that, if they punish another employee for raising a concern, they will be subject to disciplinary action.

Any manager who thinks employee silence is golden should consider that the longer offensive behavior goes on, and the harder a company makes it for an employee to complain, the more likely it is that what’s golden will be the bank accounts of the attorneys involved.

Dear Employees,

At our company, we like to pretend that we have a zero tolerance for offensive behavior. This is to make our legal and HR department happy. In reality, we don’t care what you do as long as you’re getting your job done and making us a profit.

This is especially true of our managers. Look, your manager got promoted because she was better than you. As such, s/he gets special treatment and will not be held to the same behavior standard that you will. So don’t even think that, just because your manager gets away with it, you will.

And, another thing. Your manager was hired to make money. S/he does not like taking time out of his or her valuable day to listen to a bunch of whining about something someone else said or did. So don’t be surprised if he or she is annoyed when you make a complaint. And don’t be surprised if he or she isn’t quite as friendly afterward; after all, you’ve blown the whistle on somebody that you work with. That’s not part of the “good employee” code.

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The Role of Managers in Offensive Employee Behavior

Any lawyer would go screaming into the street at the thought of his or her corporate client adopting this kind of offensive behavior policy. So would HR. And yet, this “policy” is communicated by the actions and attitudes of managers who either participate in, or turn a blind eye, to dishonest, ethical or illegal behavior.

Managers commit more fraud, steal more money, and does so in larger amounts than rank-and-file employees ever did, yet they often have exempt status when it comes to accountability for their behavior. In addition, their attitudes and practices establish the caliber of management oversight. When managers are perceived as uncaring or unconcerned about abusive behavior, the blind eye is perceived as an approving eye.

The Bottom Line

What management does is much more important than what management says. Managers who stand by, or participate, in offensive behavior significantly infleunce the level of management or subordinate tacit or direct involvemnet in abusive behavior, the legnth of time this behavior goes on, and why employees who have knowledge or reasonable suspicion of wrongdoing do not expose it.

One of the biggest challenges investigators face during sexual harassment investigations is deciding whether or not a witness is telling the truth. In fact, according to a 2009 article in Legal and Criminological Psychology, even judges aren’t’ so hot at it. And one of the reasons is the way most of us go about making credibility assessments.

For one thing, research indicates that we are heavily influenced by schemas (cognitive maps) we’ve developed based on our past experiences with similar individuals. The old adage, “to a policeman, everyone is a criminal” is an example of the tendency we all have to judge new people based on our past experiences with others. This can be problematic for those of us in HR who get railroaded into being the head of the unofficial “employee complaint department.” Dealing with minor (and seemingly ridiculous) employee complaints day in and day out can unconsciously skew our view of new or legitimate complaints in the direction of skepticism and disbelief.

Second, we all have some pretty understandable – and false – beliefs about how to actually evaluate someone’s truthfulness. It is common wisdom, for example, that liars often exhibit nervous gestures (longer pauses, not looking the other person in the eyes, speech disturbance) when research actually suggests the opposite. Throw cultural differences into the mix and the usefulness of relying upon body language to detect deception is virtually nil.

Third, most of us make snap judgments of the general trustworthiness of a witness immediately upon seeing him or her for the first time. Not only is this intuition unreliable, it can influence how we gather, and interpret, future evidence. In a study of criminal investigators, those who presumed guilt were more skeptical about evidence that suggested innocent than they were about information that confirmed their preexisting belief. In other words, we tend to see what we believe.

Here’s the good news. First, we need to throw out any ideas we might have that credibility assessment is a common sense matter and that our intuition is a useful guide. Second, we need to let go of any notions that we can tell someone is lying by his shifty gaze or nervous hand wringing. We need to be aware of how our past experiences with complainants might influence our approach to a new sexual harassment investigation. And we need to build in safeguards (a second opinion, critical thinking that objectively evaluates all evidence, clearly thinking through and documenting why we are taking each step in an investigation). This doesn’t guarantee that we’ll make the right decision; but it does raise the odds that we’ll make a fair one.

This year marks my 20th year as an employee relations consultant. Here’s one thing I’ve learned conducting sexual harassment prevention training.

DONT use sexual harassment prevention training as a way to get a message across to one employee. I can’t tell you the number of times I’ve gotten a call from a HR professional wanting to hire me to conduct harassment/discrimination prevention training. When I ask what got the training ball rolling (and believe me, I’ve learned the hard way to ask that question), it turns out there’s this one manager or employee who just doesn’t “get it.”

Look, I know no one wants to have the thankless job of having to sit down with a grown adult and counsel him or her on his cluelessness. But putting everyone through a sexual harassment prevention training course in the hope that the problem employee or manager will somehow see the light is like whistling in the dark. Not only is s/he unlikely to get the message, the other employees will be well aware (and resentful) of why they are sitting in the workshop instead of focusing on work. There is no substitute to having a one-on-one conversation with a behaviorally challenged employee and telling him or her the truth. There’s no guarantee it will work, but it’s your best shot.