Sexual Harassment Investigations: Flying Without Instruments Is Never a Good Idea.

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Grace catches her supervisor, Joe, in the hallway and stops him abruptly: “Joe, I need to talk to you in private and it’s urgent!” she said.  Grace is not sleeping well for the past few weeks.  Grace considers Joe her friend and thinks that she will have a trustworthy person to whom she can vent her troubles away:

Joe, Mark, the new guy, I think he’s harassing me. He comes close to me and tells me how pretty I am, how he likes my perfume. He also tries to hug me, and I have to push him away, constantly. It’s disgusting. Yesterday, he told me that we should go out on a date. SHAME on him! I think, he’s a married man. Besides, I don’t want to get involved with anyone at work. I’ll handle Mark. I just wanted you to know, just in case things escalate.

Joe agreed with Grace, but he warned her that if it happened again Joe will have to have a “serious talk” with Mark about his behaviour.  This is Joe’s first time facing this issue.  Fortunately, he called his mentor, Rebecca, for a second opinion.

Rebecca had experience with harassment at work and invited Joe to follow the company’s policy against harassment and sexual harassment in the workplace, which should show Joe what steps to follow when a complaint is made by employees. But, Rebecca, I don’t think the company has a “policy” about that. We may have practices. And Grace told me to do nothing about it, until she feels she can’t handle it anymore. Said Joe.  

Joe seems to be flying without instruments. He has no training about what to do with the information and unspoken expectations of those employees involved with sexual harassment in the workplace. The company has provided no education to its employees about what behaviours are not allowed in the workplace.  And the company seems to have no policy to follow.  But Joe thinks that if he treats everyone nicely, he can take back the team’s control.  Think again, Joe.

Before making a decision whether to launch an investigation in the workplace or not, it is neither a requirement to have a written policy (although to have one is mandated by health and safety legislation),  nor to get a formal, written complaint from the complainant (which would be the best-case scenario). The business has a duty to investigate all complaints and incidents that come to its attention somehow.  Once an event comes to the attention of the employer regardless of its source, the employer must investigate. So, it’s not a question with a yes or no answer, but a question of engagement that considers the extent of the substance if the complaint and who the investigator should be, based on that substance, namely a peer-to-peer allegation of harassment, a one-time inappropriate “joke” or is It Something Else?

Anti-sexual harassment laws don’t focus on Mark’s “good” intentions to cut the ice in the workplace with an “innocent” joke, but on how Mark’s comments or acts are perceived or received by Grace, which can, and usually will, come across as harassment or sexual harassment that become the source of claims.

There seems to be two extremes and an everything in between that may guide you to make decisions about how and who will handle the complaint.

One extreme is a one-time off comment, by the entry level new hire, Mark, with the apparent consequence that the new employee needs to get training about sexual harassment in the workplace.  Perhaps, this investigation could be done internally by an impartial and experienced employee.  

The other extreme seems to be a sexual harassment complaint filed by a manager seeking for a promotion, against the company’s CEO, right after they met at a closed-door meeting to discuss the manager’s “career”.  Perhaps you want to bring an external and third-party investigator to this one.  

But, what about everything in between?  Let’s say an issue with multiple comments and acts, multiple witnesses, a period of months or years, and a peer-to-senior harassment complaint? Note that investigations are not a conversation between the investigator and a group of employees, and fact-finding is more of a scientific exercise rather than an intuitive one.  

Choosing the fit-for-purpose investigator would control your budget, your legal liability and your reputation.  So, choose wisely.  But, regardless of whether it is an internal investigator or a third-party investigator your choice should hover over these skills:

  1. Empathy and listening;
  2. Planning and project management;
  3. Control multiple stakeholders’ expectations;
  4. Collecting and balancing relevant information, and record keeping; and
  5. Professionalism and objectivity.

What would you do, if you were in Joe’s position? Would you ask Grace to write you a report? What about if she doesn’t want to do that? Would you fire the new hire because he is in probation and is creating problems already? Would you read your company policies about harassment and sexual harassment before deciding? What about if your company has no policies? Would you be conducting an investigation? Can you or anyone else in the company do it? Or would you need to hire an external investigator?  

Antonio F. Urdaneta is a marathon runner, a workplace lawyer, investigator, compliance coach, and thought leader at Workplace Legal.  He uses coaching skills and tools to inform, advice and represent workplaces in digital and physical legal challenges and endeavours.  He writes his own posts.