Many business owners and managers have asked me for a simple and quick solution to deal with a complaint like this, or they’ve asked if they need to immediately hire a lawyer (and spend thousands of dollars to resolve the problem). The solution, while not a quick one, is fairly straightforward. If you follow the process that I lay out in this blog entry, you should be well on your way to resolving any issues that arise in this sensitive area of Human Resources Management.
The process:
The following is a solid 9 step process to address any harassment or discrimination claims broth to your attention. While this is merely an overview, it should give you an idea of the steps that should be taken:
1. Who do you turn to?
2. Initial meeting
3. Identification of an investigator
4. Investigation (claimant, accused, witnesses)
5. Following up with claimant
6. Further information gathering, if needed
7. Investigation document preparation
8. Evaluation of document and process by at minimum HR counsel, and probably legal counsel
9. Closing meetings and disciplinary meetings (if needed)
Who do you turn to?
If you are in a well-developed and HR supported organization, the clear answer is that you report everything you heard directly to HR, and await instruction on what to do next. But, many of us either do not have HR support, or HR is some office far away that only does benefits enrollment and recruiting. So, here is what you do if you hear “the magic words” (words like “he made me feel uncomfortable,” or even, “I think I’ve been harassed”).
If you do not have a Human Resources department, and you do not have a lawyer that your organization has used in the past, you must seek out an appropriate person or group to support you through this process. I will discuss this further in the “Identification of an investigator” section.
Keep in mind that 95% of employees do NOT want to bring something like this to your attention. They want to keep their heads down, work hard, and keep out of trouble. More often than not, they have stewed on this situation for a while, and have reached a point where they can no longer deal with the offending person any longer. They’ve reached their breaking point, and are in need of support, and of a good process. So that’s where we’ll start.
The initial meeting
Do you remember back in grade school when your friends would say, “Can you keep a secret?” Most times, you would say “of course I can,” and then immediately proceed to the next person to tell them what you just heard. Humans are very social creatures, and nothing is more social than sharing a tasty morsel of gossip. But in this case here is, word for word, what you should say to your employee (should an employee ask you if you can keep a secret):
“I will do everything in my power to keep the contents of this meeting confidential. However, there are some topics or situations that if brought to my attention, I need to act on.”
Your employee may then say to you, “Excuse me? What are you talking about?” You should explain that as their manager, if they tell you someone has discriminated or harassed them, you are obligated to take action to both support that employee as well as get to the bottom of the issue.
If the employee leaves without telling you what the problem is, your job is not done. You must then pay special attention, and listen to both that employee and others to see if you can spot the issue. You need to get that person to trust that you will do the right thing for them, and that you will support them through the process of the investigation. You need to get them to come back to the table and explain the problem they are experiencing.
If the employee chooses to stay and tell you everything, grab a pen, and take notes. You do not need to get every detail at this point, just the general situation, the players, and when it happened. Ask the person to take some time to write down everything they remember, who else witnessed this happening, and that you (or someone else) will be getting back to them to begin the investigation in the next few days.
Choosing an Investigator
If you’ve got HR, it should be their responsibility. Call and ask, or if possible, schedule a time with your HR representative to discuss what has been revealed to you.
Some organizations have designated someone else (their legal counsel or Risk Manager, for example) to conduct these investigations. If this is your case, then as with the HR representative above, contact the appropriate person.
If you have neither (as with many businesses), then you need to hire a reputable employment law attorney or HR person to conduct a proper investigation. If you choose a lawyer, they will probably assign a good HR person (or someone in their legal staff) to conduct and do most of the documentation (which they will review). If you choose an HR person, they should review their final outcomes and documentation with an Employment Law Attorney prior to final actions/presentations.
The bottom line is, you can not be the boss AND the investigator at the same time. It is essential to find someone to act as the “Neutral finder of fact.” By having this person act neutrally (not in favor of the claimant, nor the person accused (nor the employer)), you are better protected from lawsuits about this claim, and about claims in the future.
The Investigation
At this point, you have successfully turned the responsibility of the investigation over to another person (or persons). However, depending on who you have selected, you may need to make introductions (to the claimant, witnesses, and accused). Remember: you are the one they trust, and you need to explain why this person is taking part in this process.
As the manager or owner, it is important that you are familiar with the investigation process so you can follow up with the person you have selected (or identified) to complete the investigation in a timely manner.
As the investigation proceeds, you should keep in close contact (follow up often) with your employees to ensure that no one is talking about the process to ANYONE ELSE. Office gossip surrounding the investigation of the allegations needs to be kept to an absolute minimum. All employees interviewed must be sternly instructed that the issues and allegations are confidential. Gossip about the identities of persons involved may be damaging to any and all parties involved. Gossip is also damaging to the workplace dynamic and may result in individual liability to the gossipers.
ParkAllenHR’s Investigation process is a tried and true method that asks consistent and thorough questions of all parties. The process has been reviewed by several Employment Law Attorneys, and is reviewed and updated on an annual basis.
A note about “Retaliation”
Most harassment and discrimination claims are very hard to prove. However, retaliation claims that come from these investigations are often litigated. The trouble is, that “retaliation” is often subjective, that is, the claimant often feels that because of their claim, they are targeted. Their work performance will change, usually for the worse, and often these employees quit their jobs, or are fired for poor performance. These people then go seek legal counsel, who files a “right to sue” letter with either the Department of Fair Employment and Housing or the Equal Opportunity Employment Commission.
As such, it is essential that you keep office gossip to an absolute minimum, and that you explain tasks and responsibilities for your employees clearly, and if possible, in writing.
Following up with claimant
The claimant and others interviewed in the investigation will inevitably be thinking about this situation, and often may remember other details that may aid the investigator. If any of these people inform you of other details, make sure they get those details to the investigator.
Further information gathering, if needed
As with any good investigation, when any other details have been revealed, it is important for the investigator to find out as much as possible.
Investigation document preparation
When the interviews with the claimant, witnesses, and the person accused have been completed, it is the responsibility of the investigator to write down all that was disclosed. This document needs to be evaluated by at minimum HR counsel, and most likely legal counsel as well. Because there may be implications with disciplinary actions and even people’s employment, the findings should be shared with you, the owner and/or manager.
Closing meetings and disciplinary meetings (if needed)
The investigator should meet with (at minimum) the claimant and the person accused of causing the discomfort. These meetings should reveal the findings of the investigation, and not the investigators feelings of who was right, or who was wrong. Again, the goal of the investigator is to remain the “Neutral finder of fact,” and not the judge.
However, if a trend is obvious, or it is clear that the conflict is based in misunderstanding or (or more likely, perception), those facts should be called out to all parties.
If wrongdoing is found, there must be immediate repercussions for that wrong doing. It is essential to be prepared with all the documentation, and final checks, if necessary.
ParkAllenHR has a full-process developed for events such as these. Feel free to contact Park to set up a time to discuss this process.
Moving forward, moving on
As with any argument, this investigation process (or the situation that necessitated the investigation) will leave a lasting impression on your business or group. There will be tension, frustration, defensiveness, and possibly employee turnover because of it. As mentioned before, it is ESSENTIAL that there is absolutely no retaliation toward the claimant. Even if the investigation found that the claimant was absolutely, unequivocally wrong, if that person is made to feel retaliated against, they have grounds to seek a lawsuit against you.
As such, you must set the tone. You must increase the time you spend communicating with each person. On a regular basis, you need to ask the claimant, “How are things going? Have there been any situations that you want to tell me about?” If you document when you bring this up to your employee (and even better, do it in writing or an email, and encourage the employee to respond), you have a level of protection against future litigation. In time, your group will again start to work well together, and perhaps because of new expectations, they may function better together.
You will find that setting a cultural expectation of mutual respect and open communication is essential, and will go al long way to lessening the amount of claims that occur in your workplace.
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