"A bungled investigation
can quickly turn a reasonable, still employed complainant into a hurt,
damaged and angry former-employee-plaintiff.
(1) Pre-interview work
(2) Gathering information
(3) Analyzing the data
(4) Developing the report and recommendations
Step 1: Pre-Interview Work
Here's work that should be done ahead of time. You may have other items to add to your list of pre-interview to-do's, but this is where I start.
1. Get a very general description of the complaint-- just the basics--who, what, when, where (and maybe why). You'll probably get this initial description from someone other than the complaining employee. This may be the person to whom the employee complained directly, or the supervisor, or the human resources representative, or any one of a number of individuals who have an overall picture of the situation. The purpose of this description is simply to prepare you to talk with the complainant so you don't walk into that interview absolutely cold.
2. Locate and designate a contact person and, if necessary, clerical help. Always have one person inside the organization or department who is your assigned contact. This is the person who can help you with scheduling (and sometimes actually select the individuals to be interviewed), who can rearrange interview appointments, provide you with insight into the situation and the people interviewed, and who can act as a sounding board for you during the investigation--a very important person. This person can be of great help to you, whether you are working from inside or outside the organization. An investigation is a big job.
As for clerical help, that's up to you as to whether or not you'll need it. In most cases, the final report with recommendations is a substantial document, typed and usually re-typed, so think about who's going to take care of that for you. Don't wait until the last minute to locate that help.
3. Now, meet and talk with the complaining employee privately, if possible, to get more specific information. If the employee wants an attorney or friend or other representative to be there, that's fine, but it is usually best if it's just the two of you. A private discussion seems to make the employee more willing and able to talk freely. (See the following Step 2: Gathering Information for details on "what to say" and "how to be" with the complaining employee. You should follow essentially the same process as with any other person interviewed.)
It is important to make sure the complaining employee
feels comfortable so that the investigator can objectively assess the problem
issue. Furthermore, by establishing a certain level of comfort with the
complainant in the beginning, problems can be avoided later on, such as
the complainant claiming that the employer was biased or less than thorough
in the investigation.
5. If the investigation is going to go forward, make an initial plan for proceeding. Decide who you are going to talk with next--the alleged harasser, witnesses, or other potential victims? This depends upon the particulars of the situation. You may want to talk with the alleged harasser first when the problem is only between the two of them, when there are no other victims or witnesses, or when the problem can be resolved quickly and easily between the two of them. You will want to talk with others before interviewing the alleged harasser when you believe he/she will become defensive and simply deny everything, when you are aware that others feel they have been harassed by the same person, or when the complaining employee is afraid of the alleged harasser.
In the notice or discussion of suspension, the accused employee should be told the nature of the issue being investigated, why the employee is being suspended with or without pay, how long the investigation is expected to last, who to contact with questions during the suspension period, and what is expected of the employee during their suspension. Specifically, the accused employee is expected to cooperate fully with the investigation, to provide any and all information regarding the issue, and to not discuss this investigation with anyone except those who have a legitimate, business related need to know or who have been specified by the employer (attorneys, spouses, supervisor, human resource director).
Finally, tell the employee how his/her return to work will be coordinated.
An appropriate location for interviews means a private, quiet, fairly convenient (to the interviewees) location. It's best if it's away from the flow of traffic so that those you interview have some privacy coming and going, and you certainly don't want a room with windows where everyone can see in. I require a comfortable room, with comfortable chairs, a table to sit around, and water and/or coffee. Make sure you have a box of tissues available as well. If you remember that your goal is to obtain as much accurate information as possible, then you'll want to make those you interview comfortable with you and the surroundings.
8. Estimate, for yourself, and for the benefit of others involved, a time-line for this investigation. This is only an initial estimate since many variables can change your projected schedule but you should have a plan to complete the investigation in two weeks to one month. If it goes beyond one month, it must be an unusually complicated problem, or more likely, you're not putting in enough time on it.
9. Which gets us to the final element of our pre-interview suggestions--clear your calendar or be prepared to alter or clear your calendar for the benefit of this investigation. I know you have a lot of work to do, but the people who are complaining and being complained about don't care about your workload. They deserve immediate attention. So be prepared to be flexible and available at a moment's notice for emergencies, changes, and interruptions.
Step 2: Gathering Information
Now the investigation begins in earnest as you gather, gather, gather information until you think you will pop with all the conflicting stories and versions. Don't despair. After a while, you'll be surprised how patterns emerge and how clear the picture becomes towards the end. But to reach that end, you have to be, or learn to be, a good investigator.
According to Tom Peters,author of In Search of Excellence, we always emphasize the wrong thing. "During the two years I spent getting an M.B.A. at Stanford in the early '70s, I crunched a zillion numbers. But I never had 30 seconds worth of counsel about interviewing techniques," he says.
"Subsequent experience as a management consultant confirms that there are lots of effective number-crunchers but damn few great interviewers--the Mike Wallaces of the business world, you might say. To state the obvious, what are good analytical skills if the information you're analyzing is skimpy or misleading?" Peters says.
Peters also believes that interviewing can be learned and is essential to the success of consultants and managers alike. Such skill is equally, if not more, important to the success of a sexual harassment interview. The skills listed below are suggested by Peters as those "gleaned from 25 years interviewing and watching superb interviewers at work," with additional comments added by this editor.
You may find you have to return and re-interview
a number of people because you didn't have the energy or concentration
to conduct a good interview the first time. Slow it down and take your
time--to think, to plan, and to do a thorough job. Don't let yourself be
pressured by others or their demands--even the complainant or the complainant's
attorney-- into doing a rush job.
For sexual harassment investigations, this is a good idea as well, though a few modifications are best. Comfortable chairs around a table may be a better idea since the investigator will need to write and take some notes and those interviewed will sometimes bring notes to refer to or a pad to take notes themselves. It has long been recognized by communication experts that sitting across the desk from someone does not facilitate open communication as well as other arrangements. Try sitting on one side of the table with the interviewee's chair perpendicular to yours, so you each have a corner or edge of the table to use, but it does not become a barrier between you. You may also find a phone, for out-going calls only, important. You and/or the interviewee may find need of the phone to reschedule appointments (for example, if one of your interviews only lasts 20 minutes, you can call the next person to fill the rest of that time slot if possible), to get additional information or materials, or other such issues. It should not be given as a number to be called and thus interrupt your interview. Such behavior, on your part in particular, indicates to the interviewee that your time and calls are more important than theirs--a dangerous practice!
Know who you are going to interview-- their name,position, what you(or someone else) think they might know, and why you are going to interview them. There's nothing more of a "put-down" to interviewees than your flipping through your notes in front of them trying to figure out where they fit into the picture -- you should have figured that out and had it in mind before they walked in the room. This is often the result of overscheduling and a tired full mind with no more room, on this day at least, for organization and recall.
This is another good reason for not overscheduling. If you rush from one interview to the next, you'll have more trouble remembering not only what was said, but who said what. If an interview is over before the allotted time, you may want to use the time to review notes rather than calling the next interviewee into the session early.
During the entire investigation process, I continually review, again and again, all the notes from all previous interviews, to keep inputting the information into my head and to keep it fresh in my mind.
Now, keeping all the above in mind, you're ready to actually start the interviewing process. The keys to gathering information are:1. Simply proceed through the initial list of individuals you decided to interview. This will be a shorter list, a smaller circle of people, that will grow as you interview. At the end of each interview you will ask "Are there other people you think might shed light on this situation or that you think I should talk to?" You'll see your list of interviewees expand, until the same names come up over and over. Then you'll know your list is becoming complete.
At some point, you'll either run out of names, or you will decide you have enough information. I can't tell you when you will reach either of those points, but I'd like to warn you about deciding you have enough.
If you decide too soon that you have enough information, you run the risk of overlooking others who know about the harassment but have not been invited to an interview. You don't want to decide that there was nothing to the complaint and six months later have it come back to haunt you because the harasser is harassing again, and someone says, "I've known about him for years, but no one ever asked me."
If you decide too late that you finally have enough information, you wear yourself out, needlessly interviewing people who know little or nothing about the complaint, or who tell you the same stories over and over again. You get all the information, but you waste time, energy, and money overdoing it. Of course it's safer to do too much than too little.
The best is when you're able to decide enough is enough at exactly (or even approximately) the right time. In one complaint I investigated, we (me and my contact in the company) felt that the CEO would never believe that the harasser harassed, no matter what the final report said. After I found seven employees who were harassed by the same supervisor, I said "enough." Even though I believed that more victims existed, I felt that if the CEO wouldn't believe seven victims, he probably wouldn't believe 27 victims. It worked differently than we expected. The CEO immediately believed all seven victims, and the supervisor was terminated. But we knew when enough was enough.
So keep interviewing your way through your initial list of employees, and add names that they suggest. Work your way through those and occasionally ask yourself "is it enough yet?"
2. How to be? Try to distance yourself a little from the investigation so that you can be relaxed. Think of the investigator's job as an information gatherer--you don't really have to do anything at this point. Just open the discussion, ask general open questions, listen, and take notes.
You need to be relaxed, calm, neutral, and sympathetic to all involved. You are not on anyone's side--you are on everyones side--and that will show through if you believe it.
Practice what are called "active listening skills" of restatement, reflection, and open-ended (non- yes/no) questionsand avoid expressing your thoughts, ideas, or opinions.
Restatement is just that-- re-stating back to them what they just said. It's the same thing as summarizing or paraphrasing. After you've restated, add questions such as "Is that right?" or "Did I understand you correctly?" or better yet, "Tell me a little more" or "Please explain that further" or "Can you give me some more examples?"
The skill of reflection is simply reflecting back to them how you think they're feeling-- based on what they've shown or said to you--not how you think they should feel.It's important to remember that restating and reflecting do not mean that you agree with them -- it just shows that you heard either the content or the emotion of what they were saying -- and it then allows them to go on.
If during the interview, you feel that the interviewee is getting off the subject, you can bring it back on track gently, by saying something like "I know that your supervisor's management style is a real problem for you, and we can talk more about that if we have time. However, we need to get back to the issue between Jim and Sally..." I find that most interviewees appreciate this re-focusing and realize that it's the interviewer's job to keep things on track. The usual response from them is "Yeah, you're right... well back to Jim..."
This is another point where organization and time are important to you and this investigation. If you come into an interview rushed, tired, disorganized, or tense, it will show. In fact the interviewee may actually take on some of your stress, and the interview will not be what you want or need. So schedule, plan, and take a deep breath before you start. I try to get to my interview site 15 minutes before hand to get a cup of coffee, look over my notes, and do just what I said-- relax.
3. What to say? You should consistently say the same thing and ask the same questions of all the individuals you interview. I usually talk for the first few minutes to give the person I am interviewing a chance to get settled, to relax, and to find out what's going on here and what they can expect. Your introduction should include:
By the time an investigation is called for, most people in the work group are very aware of the complaint. They are usually more than willing to discuss it, since nearly everyone will have an opinion or be upset about it. If the person you are interviewing does not know anything about it, then by making such a general opening, you have not passed on information or helped the grapevine along. Remember that protecting the rights, including reputation and rights to privacy, of the accused as well as the accuser is critical, so discretion is very important; the less gossip around the better.
(It's also important for you to know that the transmission of information which later proves to be false and damaging can constitute defamation [libel or slander] and that the transmitter of that information can be sued for engaging in defamation. You do not want to be the transmitter of such damaging information.)
If the people you are interviewing say they know nothing, you may go on to ask if they've ever had any problem with either of the people involved, or ask the last question--if they know of anyone they think could help to clear the situation up.
If they do have knowledge, information, or opinions, about the particular complaint, just let them talk. Most of the questions you should ask will be in the form of "Tell me more about that," "Can you explain that please?," "Can you give me some examples so I'll understand clearly?," etc. Don't worry too much about specific phrasing and wording. This is not a court of law, and you are not an attorney (or acting as an attorney from this manual), so just talk to them as you would to an acquaintance. Forget about sharing your opinions and ideas-- just ask open-ended questions and let them talk.
Get detailed accounts of the events from the person who is the focus of the investigation. Start by simply asking them to tell you about the problem.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 employee refuses to cooperate, explain that you have an obligation to resolve 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.
Effective questioning comes before the interview. 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.
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.
In one case I investigated, one of the witnesses had a personal grudge against the accused harasser, and used this opportunity to talk widely and badly against the accused harasser. The witness was warned twice and then was given three days off without pay for impeding the investigation and exacerbating an already bad situation.
6. At the close of each interview with the complaining employee and the alleged harasser, give them additional instructions. Tell each of them that:
At the beginning of the interview, confirm the spelling of their name and position, how long they have been employed with the organization and how long in the current position. Asking and getting this information from them gives them some time to get a little more comfortable. If it seems appropriate, I sometimes make a little "small talk" about kids, or weather, or some recent newsworthy happening. I also make a few notes for myself next to their name about their appearance--hair color or style, glasses, short/tall/etc. so I am able to recall them and the particular interview later. However, be careful not to write anything you wouldn't want to be seen publicly later (your notes can be subpoenaed in legal action).
Make your opening comments (see previous steps) and make a note in the top right corner of their interview sheet that you did so. This will help remind you and them later if they should say you didn't tell them what was happening in the interview.
Then you're ready to ask the opening question given earlier, practice good listening skills, ask more questions, and take notes. Don't worry about the detail of the notes. You'll find that if you really listened, your memory will be jogged by even an incomplete phrase you wrote down. If you have time to review your notes between interviews you can complete those phrases as it will help to imprint the important information in your mind
Keep the center part of the pages for information that the interviewees give you. Make personal notes to yourself in the margins. This simple separation can help you make notations enabling you to find particular bits of information later.
Keep the form of your interview notes simple and use a consistent style that works for you. But do be consistent. After interviewing 10, 20, or 30 people, you'll find that having your notes standardized and somewhat organized really helps.I purposely leave my notes in the yellow pads because it makes them easy to flip through and it keeps them in chronological order -- which helps me remember the interviews and the order in which they occurred. And remember, anything you write down on paper may become public at a later date.
8. Types of witnesses.
One expert lists at least three types of witnesses encountered during the
sexual harassment investigations: the non-cooperative witness, the witness
who loves the limelight, and the witness with an ax to grind.
9. Assessing the Credibility of Interviewees. Use the following factors to assess the credibility of those you interview:
The argument for recording, of course, is that there can be no dispute about what was said in the interview. I've not found this to be a compelling reason--but it is up to you.
Also note that in some states it is illegal to record a conversation without consent of the person recorded. If this is the case in your state, make sure you get permission to record the session from everyone in the room, and get this permission on tape.
11. Gather from or through your contact person all written documents related to this complaint and to the parties involved. This can include a written complain from the employee, pictures or cartoons, etc., that are part of the alleged harassment; employee records including performance evaluations; past reprimands or recommendations; etc. It's not necessary that you have copies of all of these items but that you have access to them. You can review them and take notes for your files.
A review of all available personal records is very important, especially when the accusation involves a supervisor. In any case, even when it is between equal status co-workers, it is essential to determine if a history of friction exists between the two employees. Both employee's records-- accused and accusers--should be reviewed with emphasis on supervisory ratings, performance reviews, promotions or passovers for promotions, transfers, raises, or disciplinary actions. Their records should be reviewed to ascertain problems with other employees, previous allegations of misconduct, or other factors which would tend to verify or invalidate the complaint's allegations.
Once you believe you've gathered all or enough information to call this a complete and thorough investigation, you're ready to begin the next step --the one where you really have to do some work--analyze the data. (If you're not sure if you've gathered enough information, go back and re-read Step One.)
Step 3: Analyzing the Information You've Gathered
You'll want to analyze the data you've gathered in a number of ways. It's a little like picking up a stone and turning it over and over and over, and discovering new and different angles each time you look. In this way, you make sure you have conducted a complete, fair, all-things-considered investigation. To do this you must analyze: (1) the credibility issue--did the behavior occur as reported; (2) the behavioral definition of sexual harassment; (3) EECO's definition of sexual harassment; (4) the overall rating of the level of harassment.
1. Did the alleged behaviors actually occur? In answering this question for each alleged behavior, you have five answers from which to choose:
What you're looking for when interviewing people are those who saw/didn't see the alleged behaviors or harasser or victim; others that the same or similar behaviors did/didn't happen to with either the harasser or the victim; or others who knew about or were told about the behaviors at or near the time the behaviors took place. These people will help you validate or invalidate the different versions you'll hear and make a decision about what we've called the credibility issue.
Instead of having a situation where she says he did something, and he says he didn't, you will more likely encounter a situation where both agree something happened, but they both have different versions of the same story. You must simply report this as you see it based not only on the two people, but on all the others you interviewed as well.
2. Compare and contrast the information you've gathered about each alleged behaviorwith the behavioral definition of sexual harassment: deliberate and/or repeated sexual or sex based behavior that is not welcome, not asked for, not returned. Do the analysis in an orderly fashion and for each incident or behavior that occurred:
Was the behavior sexual (about sex) or sex-based (on account of sex or directed to or impacting only one sex or gender)? If you're not clear, review Section 3. Plot each behavior on a light gray- dark grey continuum so you have a clear picture of it's severity first:
Was each behavior welcome, or asked for, or returned?Again, remember the qualifier--the lighter gray the behavior, the more responsibility of the receiver to speak up; the darker gray the behavior, the less responsibility the receiver has to speak up and the more responsibility the sender has to monitor his/her own behavior. Did the receiver tell or indicate to the sender the behavior was unwelcome? Was it necessary that the receiver give notice, or should the sender have known better in the first place?
If the behaviors were reciprocated in any way, was there a balance between the seriousness of the sender's behavior and the receiver's returned behavior? One of the arguments you will hear is that the complainant or receiving employee liked the behavior, engaged in it him/herself, asked for it, encouraged it, etc. If this is the case, then both (or all of the) parties should be approached so that these types of behaviors are now stopped (though not labeled sexual harassment since they were welcomed.) However, there should be a balance between the sender's behavior and the receiver's responding behaviors.
For example, if the alleged victim was telling off-color jokes in response to the alleged harasser's telling off-color jokes, then it would appear that the jokes were welcome and there was a "balance" in terms of the severity of conduct. But when the sender of the jokes uses the receiver's telling of jokes as an invitation to go to a higher or more severe level--such as physical grabbing of buttocks or breasts, then the balance has shifted and the argument not justified. Consider the balance in the severity of the behaviors.
An Assessment Checklist
Another argument you'll hear is that sexual harassment is all "subjective" and "depends on the victim's perceptions."Of course to some extent this is true, for what is harassing to one person may not be to another; there are no "lists"of right and wrong behaviors.
However, Patricia Linenberger has listed factors based on the premise that the identification of sexual harassment should be made as a result of an objective assessment. She says the question to be asked is, "how would the reasonable person in the same or similar circumstances perceive the conduct?" and that the perception of the victim and the intent of the harasser should be irrelevant. Some of these factors we've already covered, but some are new. Regardless, a second look is worth the time in your analysis:
3. Compare the information you gathered with EEOC's definition of sexual harassment: Unwelcome sexual advances, requests for conduct of a sexual nature constitute sexual harassment when:
Step 4: Developing Recommendations &Writing the Report
After answering these questions, you may then consider any number of options to come up with a customized response to the situation. Each and every sexual harassment complaint must be treated equally, but at the same time as a unique situation. Some of the options to consider are no action, education of an individual, education of a work group, verbal discussion or counseling, written warning, suspension, corrective action plan, demotion, transfer, reduction in salary, termination, or addressing other related issues that were raised or larger work groups or organizations issues.
Remember, however, there are no pat answers. Consider
all the facts and circumstances of each alleged situation in determining
the appropriate response and make sure it is appropriate for everyone--accused,
accuser, co-workers, and the organization.
Outline of the Final Report
1. Did the alleged behaviors actually occur?C. Recommendations
2. If the behaviors did occur, do they constitute sexual harassment?
3. What other factors or conditions impact this situation?
Part One: A One Page Summary of the Report
This page should be written last, since it summarizes
the entire report. It is used as a cover sheet and introduction to those
who plan to read the entire report. It will also contain some of the information
which will be released to those who were involved in the complaint as witnesses
or interviewees. It is very general and includes only the highlights of
the main report.
Part Two: The Main Body of the Report
If you've done a good analysis form the previous section, writing the body of the report should not be too hard. If you find it extremely difficult to write, then it's probably that you are trying to write it before you've thought it through completely. Go back to Step 3 and do some more analysis. If that doesn't work, maybe you need to go back to Step 2 and gather some more information. Don't be worried about backing up in the process; it is better to back up than to go forward unprepared. The elements of the main body of the report are:
of Complaints and Findings: In this section of the report you will
answer the three main questions:
(2) If the behaviors did occur, do they constitute sexual harassment? First, provide the behavioral definition of sexual harassment (deliberate and/or repeated sexual or sex based behavior that is not welcome, not asked for, not returned) and compare what you discovered through the interviews with each element of that definition.
Secondly, provide a brief definition, as per EEOC's Guidelines of what constitutes sexual harassment (the four conditions that constitute quid pro quo or hostile work environment harassment) and compare what you found in the investigation with this definition. Don't try to play attorney--just prepare the information with the definition. Legal questions and considerations must be referred to those that are responsible for them, so suggest that legal counsel be appraised of this report.
(3) What other factors or conditions impact this situation? In this section you should describe any and all other factors that you believe have an impact on this problem. This includes all the elements that don't fit into the black and white categories of "did it happen" and "was it sexual harassment."
This could be the section that includes consideration of what the EEOC calls the "totality of the circumstance" -- the other things that you discovered that affect this complaint -- alcoholism, personality conflicts, misperceptions, differences in perception, work environment -- the list of possibilities is endless. As you analyze the data and write the report, you'll see the elements that fit here--it's information that makes up the total picture.
Present your recommendations as possible courses of action and remember that each possible course of action must address the total problem--taking care of the situation (stopping the harassment immediately, now and in the future), of the accused harasser, of the complaining employee, of the work group, and of the organization. Each course of action (such as the termination of employment option versus the continued employment option) will dictate similar but differing recommended actions.
It is not possible to list all the items you might
include as part of your recommendations since each complaint is unique
and will call for its own specific set of remedies. However, some of the
possible recommended actions are to:
Not engage in any similar type
behaviors again (be specific such as "not joke, tease, or comment in any
sexual way to employees or customers under any circumstances");
Be given __________________(specify
exactly what-- suspension, demotion, etc.) as discipline for his behaviors;
Apologize in writing to the
offended employees (someone should review the letter prior to its delivery);
Understand that he/she is on
probation for a period of time (specify) and that any similar infraction
can be cause for immediate termination;
Not retaliate in any way against
anyone he knows or believes to have complained against him, emphasize that
ignoring or shunning can also be considered retaliation and that he is
expected to act in a pleasant, professional manner towards all individuals;
Attend AA meetings, anger management
sessions, counseling, therapy, individual training on sexual harassment,
or any other specific remedy related to the harasser's unacceptable behaviors;
Including an appendix to your final report is
important because there may be parts of the report that you or the authority
person do not want everyone to have access to. For example, when an investigation
reveals many victims of harassment by one individual, it is possible that
the harasser be disciplined and not given the names of those who complained.
In such a case, some or all of the employees names would be in the appendix,
along with the specifics of their complaints, while the body of the report,
which the harasser is allowed to read, contains a summary of complaints
and findings. The appendix can include such items as:
All of the suggestions listed above are based on the assumption that there was validity to the complaints. Of course, it's always possible the alleged victim's complaints will turn out to be fictitious or even malicious. While reports of malicious complaints are very rare, you must always keep in mind that it is a possibility. These kind of complaints do not involve a misunderstanding or a differing interpretation of the situation as discussed earlier, but a false complaint filed with the intent to retaliate or harm the alleged harasser. When the untrue nature of the charge is substantiated, the alleged "victim" should be disciplined for filing a false complaint and the action steps listed above appropriately altered.
As the investigator, you should be careful and cautious when it comes to "rivolous" complaints. Besides the fact that these complaints are unusual, the impact of an alleged victim of harassment can have a considerable and sometimes negative effect. It will certainly have an impact on whether or not future complaints, including legitimate ones, are made and it may give the wrong impression about the organization's stance on harassment ("see, the victim is the one who gets punished-- they don't care about what the harassers do"). Obviously, letting an employee "get away" with filing malicious charges damages morale as well. Just be certain the complaint is false before recommending discipline for a complainant.
It is also a difficult situation when the investigation is inconclusive-- you couldn't determine that the allegations were true, yet you couldn't determine that they were untrue either. Failing to take action against the offending employee can create a whole series of new and serious problems, especially in the case of an offending supervisor. On the other hand, imposing discipline on the employee without sufficient cause is not only unfair, but it creates a series of problems (and liabilities) as well.
I have found that the true cases of one employee's word against the another are rare. With few exceptions, a thorough investigation will reveal witnesses to the same or similar behaviors from the accused or will identify other victims of the same harasser. When investigating, you should be careful not to assume innocence on the part of the alleged harassing employee because the complaint can not be substantiated.
However, if you do end up with an inconclusive investigation, you will have to state and explain that conclusion in your final report. You can then recommend that the company warn the offending employee that it considers the allegations serious, and although the facts are disputed, such conduct is forbidden and will not be tolerated. The alleged victim should also be notified of the results.
An inconclusive complaint should be fully documented so that any future occurrences may be assessed in the appropriate context. It may also be a good idea to place memos in both employees' files reflecting the inconclusive nature of the complaint. The files may be cleared after a certain period of time with no further incidents.
More About Taking Appropriate Action
If the two employees generally agree during their separate interviews that the incident(s) did occur, bringing the two of them together to discuss the issue can sometimes prove very effective in resolving the problem. This is especially useful when misunderstandings or different interpretations of behaviors have taken place. For example, the male co-worker who continuously asks a female employee out for a date feels he is breaking down her resistance. She feels harassed and perhaps intimidated. Differences in perceptions, communications, and values are the issues which call for clarification. If it can be effectively handled and resolved at an immediate level, before a full blown investigation--great--probably better for everyone involved.
But in more serious cases, the above approach can simply harden attitudes between the two parties. If the harassment was severe and blatant, the victim may feel too embarrassed or demeaned to confront the harasser, or the harasser may take the meeting as an opportunity to intimidate the victim. Most importantly, once the information is corroborated, it is ultimately the employer's responsibility to deal with the harassment and the harassing employee -- be careful about placing that responsibility on the victim.
So How Much Discipline Is Enough?
Hopefully, you took the advice from the first section, so that you and the authority person are not one and the same. This means that now, as the investigator, it's not up to you to choose exactly what it is that will be done to remedy this complaint. Let me emphasize again--conducting an investigation and making management decisions are two different things which may or may not be located in the same person.
But even if the final decision is not up to you , you will undoubtedly be asked for advice about precisely what disciplinary action should be taken. That's why I ask you to make a general assessment of the level of harassment--because you can also categorize the level of discipline as mild, moderate, or severe.
In general, discipline for sexual harassment should follow progressive disciplinary procedures. With each infraction of the rules the punishment is meted out more severe. The number of infractions must, of course, be balanced with the severity of each offense as determined by assessing the incident. One serious offense calls for severe discipline; minor offenses, when repeated a number of times, may require the same severe discipline.
The individual handling the complaint should continue to stay in contact with the work group for a reasonable length of time after settling the harassment issue to ensure that the situation remains satisfactory. Periodic and regular follow-up, particularly with the victim, makes sure that harassing behaviors have been stopped, that retaliation is not occurring, and that the employees are working together productively, effectively, and in a professional manner.
After a harassment complaint, it often takes some time for the interpersonal relationships among all the employees to return to normal, especially between accused and accuser. Staying in close communication with the work group during this time will benefit everyone.
Step 5: Follow Through
There's one last step before you can call your investigation complete and I call it the follow-through--you have obtained and analyzed, and written a great deal of information--but you must do what you can to follow-through with the process and make sure something happens to resolve this problem.
1. First, notify your contact and or authority person, tell them the investigation is complete, that you are forwarding a confidential copy of the report to one or both of them, and schedule a time to meet with them to discuss the report. Most likely your report is at least 10-12 pages, so you want to give them time to read and study it before you meet. Meeting, reading, and discussing all at the same time is not a good idea.
2. Re-read your report, and your notes if necessary, to prepare for the meeting. Jot down all key points you think you will need to cover and/or emphasize as well as questions you think might come up.
3. Make any necessary changes in the recommendations. During this meeting you will present your report in person and answer questions; remember, there is still time for discussion and changes in the recommended actions. You and those to whom you are presenting the report should agree on those changes at this meeting.
4. Assign responsibility and deadlines for each of the recommendations. The authority person should make the assignments, make notes of who's assigned and their deadline, and follow-up on seeing that each is accomplished.
At this point, your job is essentially over. You may be asked to sit in when the report is presented to the alleged or actual harasser and the complaining employee. If any of these people have questions about the investigation, you are the only one who can really answer them. If you are included in the meeting with the employees, the meeting should be conducted by the authority person -- you are here to answer questions about the investigation only. It is important that the organization--its managers and supervisors--take the responsibility for remedying this complaint of harassment.
Finally, if you are present in this meeting, remember that it is not likely to be a pleasant experience for anyone. But don't get caught in an argument with the employees -- you are there to answer questions -- not to defend your report, your work, or your conclusions. If you have done a complete and thorough job, you'll probably still feel uncomfortable in this meeting, but you'll also feel confident, because you should know more than anyone else about this complaint.
EEOC's Guidelines on Investigations
In its publication, 2.205A, Following Up on a Sexual Harassment Complaint, EEOC provides sound advice that validates what is presented in this manual. The publication says:
It is not easy to investigate and respond to a complaint of sexual harassment, but it is absolutely essential that the employer take action that is fair to all parties: the accuser, the accused, and all possible future victims.
1. Following up on all complaints
-Complaints made in confidence should also be investigated, if possible.
-Once an employee making a complaint approaches a human resource staffer or a supervisor, it is not feasible to promise complete confidence, the employee should speak to an employee assistance program counselor.
-An employer may be able to justify its failure to act on a confidential complaint if the complainant signs a statement requesting that the complaint not be investigated by the employer. The risk here, however, is that the employer will get more complaints because the problem remains unresolved.
-Even if the complainant refuses to sign a statement or make a written complaint, the employer is still on notice of a possible violation of Title VII of the Civil Rights Act of 1964 and still must investigate.
-Asking the complainant why he or she does not want to sign a formal complaint may provide useful information.
-An attorney should be involved from the beginning of the investigation, at least to give advice about whom to interview, what kind of remedy is needed, and what the employer's liability is. It may make sense to have an attorney perform the investigation.
-A complaint should never be investigated solely by a supervisor and should not be investigated solely by a human resource staffer.
-Prepare a list of questions for the complainant and have a lawyer look at it before the start of the interview.
-Ask the complainant about witnesses and corroborating details. Do not be surprised or suspicious if the complainant remembers in bits and pieces.
-Ask the complainant what he or she would ask the alleged harasser if the complainant were making the investigation.
-Write up a report of the interview and ask the complainant to sign it.
-A harasser's first inclination is usually to deny everything.
-The investigator can remind the stonewaller that he or she may be compelled to testify in court and face possible perjury charges.
-If the accuser complained to a parent or to friends, they should be interviewed to confirm the accuser's account.
-People that the alleged harasser has supervised should also be interviewed, since most harassers also harass other victims.
-If, as is often the case, there is no direct evidence to prove or disprove the allegation, look for corroborating evidence.
-The investigation should address the following questions:
* Did the employee express satisfaction with his or her job and/or his or her supervisors? If the employee's attitude changed, how do co-workers and supervisors account for the change?
* Is the employee a chronic complainer? Prone to exaggeration? Emotionally unstable? Hostile towards males or females?
* Did the employee engage in sexually provocative behavior or dress provocatively at work?
* What is the reputation of the accused? Was the alleged harasser previously the subject of sexual harassment complaints? Did he or she have any prior affairs at the workplace?
* In a quid pro quo case, were employees who went along with the harassment rewarded? Does the timing of inconsistent performance evaluations corroborate either party's story?
* Did the work environment change when the accuser entered the workforce?
-An alleged harasser may sue the employer for defamation of character if a manager, investigator, human resource staffer, or attorney reveals information about the complaint to people who have no need to know.
-If it is necessary to reveal some information about the complaint to potential witnesses, the investigator should inform them that the nature of the investigation is confidential and that they could be subject to disciplinary action if they spread rumors.
-Remind potential witnesses that they would not want gossip if they were the subject of allegations.
-Employers should be cautious about investigating behavior occurring outside the workplace, since this may result in a lawsuit alleging tortious invasion of privacy.
-In most situations, the parties all want the investigation resolved, even if they do not agree with the resolution.
-The staffer receiving the complaint should promise to get back to the complainant in twenty-one days or so, or to provide a status report in perhaps a week or ten days; whatever is most workable.
-Even if findings of the investigation are inconclusive, the person who took the complaint should report back to the complainant, describing what steps have been taken.
-the complainant may be able to suggest some further avenues of investigation.
-Under the Equal Employment Opportunity Comission (EEOC) guidelines, the employer is responsible for providing a remedy that is reasonably constructed to end the harassment.
-At the outset, the person receiving or investigating a complaint should ask about and consider what the complainant wants as a remedy.
-Usually, the complainant's biggest concern is getting the harassment to stop.
-In many cases, the complainant will therefore accept an apology from the alleged harasser in lieu of more punitive measures, provided that the harassment stops.
-The employer must counsel the harasser to make sure that the harasser understands what conduct is prohibited and that continuation of the prohibited conduct will result in discharge.
-It may be advisable to put the harasser formally on probation, making it clear that further misconduct will result in discipline up to and including discharge.
-A further written warning notice will document that the employer at least took some steps to deter further harassment. Warnings and reprimands are usually sufficient for first offenses.
-At a minimum, the employer should ensure that the harasser's performance appraisal reflects the misconduct.
-Sending the harasser to sensitivity training will help ensure that the harasser understands what conduct is prohibited.
-Experts suggest that the harasser also be required to apologize to the complainant.
-An apology to the complainant would mean that the harasser at least acknowledges having been in the wrong.
-An apology also helps the complainant feel vindicated and empowered.
-These psychological aspects are important because abuse of power is at the core of sexual harassment.
- If a transfer seems appropriate, the employer should transfer the harasser, never the victim, unless of course the victim requests the transfer.
-Discharging the harasser may sometimes be appropriate, but only if the employer has an airtight case.
-Discharge after the first offense is justified if the harasser's conduct was egregious, since harassers sabotage the employer's efforts to maintain a productive, fair, and lawful work environment.
-There is a risk that firing an employee for sexual harassment may be taken as an admission by the employer that the harassment occurred. The employer may then be sued for damages for violating Title VII even though the employer has stopped the harassment. Therefore, an employer may want to take action without conceding that it was an illegal act that occurred. Violation of employer policy is adequate basis for discipline.
-It may be a good idea to train the entire workforce on what types of conduct are prohibited. This is strongly advisable if there is evidence that harassment is pervasive.
-At minimum, the employer should re-post or recirculate the company's sexual harassment policy.
-The employer is also responsible for taking affirmative steps to make the victim of harassment whole (i.e., to make up for any losses the victim suffered because of the harassment).
-In such cases, the human resources office should send confidential letters to the complainant and the alleged harasser to inform them of the results.
-A human resources staffer should also speak with the alleged harasser.
-Remind the accused of the employer's sexual harassment policy.
-Mention that reprisal or retaliation against the complainant will be grounds for discharge and must not be taken. An alleged harasser who is a manager must be warned that taking retaliatory action could result in the employer as well as the manager being held liable for unlawful retaliation.
-The human resource staffer should then speak with the complainant.
-Reassure the complainant that it was right to come forward.
-Arrange with the complainant to continue to monitor the situation. For example, arrange to meet with the complainant again a month later, and then make other follow-up appointments.
-It is a good idea to offer to transfer the complainant, if this is feasible.
-The human resource office should also arrange for third-party review of the complainant's job performance and future evaluations.
-Even if it could not be determined whether harassment occurred in a particular instance, educating the workforce about sexual harassment is another step that will show that the employer takes sexual harassment seriously.
-The charge and the investigative findings must be kept confidential, lest the alleged harasser sue the employer for defamation of character.
World-wide research indicates that sexual harassment is indeed a global problem with global implications. Recent surveys in Austria, Belgium, Canada, Czechoslovakia, Denmark, Estonia, Finland, France, the Netherlands, Portugal, the former Soviet Union, Spain, Sweden, the United Kingdom, and the United States show sexual harassment to be a widespread and pervasive problem. The studies also validate, over and over, basicaly the same results, trends, and conclusions of even the earliest studies.
The results of studies vary somewhat depending upon the size of the sample group, those who are surveyed and their level of awareness, and the way in which questions are posed. For example, asking women if they have been subject to certain types of sexual behavior may result in higher percentages saying "yes" than if they are asked if they have been sexually harassed -- since many may not be aware of what the phrase means. On the other hand, it has been suggested in United States research that asking women if they have been sexually harassed will result in a higher percentage saying "yes" because American women are especially sensitive to the issue.
Because of these different research methods as well as cultural differences, the survey results within a country's studies may vary from study to study. Furthermore, it is difficult to compare
countries and determine which have a "worse" problem than others. The point is, regardless of research difficulties, all the studies and surveys to date reveal the same thing-- that sexual harassment is a serious problem in the world's workplaces with serious implications for its victims, its perpetrators, companies and organizations, and the countries in which they live and do business.
In terms of actual numbers, the earliest studies, conducted in the United States in the mid-1970s, show that from 40% to 60% of working women and approximately 15% of working men have personally experienced sexual harassment, but those most likely to be harassed are those who are perceived as vulnerable and financially dependent. The myth that physical attractiveness is related to being a victim of harassment is just that -- a myth.
A sixty-five year-old woman who worked as a secretary for a government agency told me that she believed the myth that it was her fault -- something in the way she behaved or her attractiveness -- that caused a younger man to make vulgar, sexually aggressive remarks to her. To change the situation she changed herself. She began pulling her hair back in a bun, she never wore sweaters or V-neck blouses, and most of the time she tried to keep her jacket on so as to hide her full-breasted figure. She said she changed her mind about it being her fault when one day the young man came up with white lotion in his hand, acting as if it were semen, and said "See what you made me do!" and laughed loudly. She said she realized that nothing in her behavior was causing him to treat her so disrespectfully. Sexual harassment is about the harasser being at fault, not the victim.
Since it is those perceived as vulnerable and financially dependent who are most likely to be harassed, it follows that subordinates are most likely the victims of harassment. However, "subordinate" may mean the location of the person in the organizational hierarchy or it may simply mean the status of being a woman -- so incidents of female supervisors being harassed by their peers and even their own subordinates can take place.
Specifically, those most likely to be sexually harassed throughout the world are divorced, separated and widowed women, single parents, lesbians, women from ethnic minorities, women who work in traditionally male jobs, new entrants to the workforce, younger women, and women with temporary employment assignments or contracts. According to the ILO's 1992 study on harassment, "Sexual harassment is inextricably linked with power and takes place in societies which treat women as sex objects and second-class citizens."
The ILO study goes on to state that international research also indicates that while women are more likely than men to be harassed, it follows the same pattern in that it is the men who are most vulnerable who are subjected to harassment: young men new to the workforce, men working in traditionally female jobs, men from ethnic and racial minorities, and gay men. Harassment of men is more likely to take the form of joking and teasing as opposed to actual sexual overtures. Due to cultural pressures to be sexually active, available, or willing at all times (or to at least act as if they are) the number of instances where men are victims of harassment may also be underreported.
A thirty-five year old man who worked in management of a large electrical utility told me that at his previous job, at another company, his female boss told him directly that she was sexually interested in him. When he told her he was newly married and not interested in his boss, she informed him that if he didn't go along "my name would be mud in the company, and it was -- for two years." After two years of putting up with slights, mistreatment from her, he quit, never complaining to anyone.
On a different occasion, another man waited for me in a sexual harassment workshop to say privately that a department head in a city government would occasionally come up behind him in the hallway and swat him on the butt, as it might happen on the football field among players. He said he did not know if it was a sexual approach or not but that he was very embarrassed and shamed by it. When asked who he'd told, if anyone, he said "Just my wife." The behavior had gone on for years. As a sexual harassment trainer I know that when a man waits quietly at the back of the room after the workshop, he usually has a story he wants to tell but was too embarrassed to discuss it in front of the group or with anyone else.
The similar, and often identical, results from
sexual harassment surveys around the world are not surprising, but it is
revealing of what harassment is truly about -- a serious problem related
to gender. Whether those harassing or harassed are office workers, police
officers, attorneys, waiters or waitresses, whether they are European,
North or South American, Asian, or African -- the results show the same
patterns worldwide when it comes to sexual harassment. The actual number
of victims, the percentages of people reporting that they have been sexually
harassed, the impact of the harassment on them, their responses, and the
types of harassment they have experienced all tend to look the same from
country to country.