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Top 10 ways to screw up a harassment investigation

March 30, 2015

carell 2“Uh, hi, Ms. HR Specialist? John Q. Worker here, from purchasing. I just thought you ought to know that my supervisor just said……”

It almost doesn’t matter what was said. What does matter is what you, as a business owner or HR specialist or supervisor needs to do when on the receiving end of that kind of communication. You need to conduct an investigation. And the way you do that can turn a little, solvable problem into a big, legal-fee-generating, morale-killing, six-figure mess.

So, fresh from the What Were They Thinking desk, the top 10 ways (taken from actual investigation files!) to boot a harassment investigation:

1. Ignore it. It may be human nature to want to minimize other people’s failings, but now is not the time to reflexively defend the alleged harasser, or tell the complainant to man up. If an employee is reporting harassment, it’s a problem, and you have to deal with it. Saying “I’m sure he was just joking,” or “you must have misunderstood,” or “you need a thick skin in sales” is going to make it worse. Respect the complaint, and respect the complainant for giving you the opportunity to fix it, hopefully without a lawsuit.

2. Procrastinate. Investigations are not fun to conduct. They don’t come with a deadline. They don’t add anything to the bottom line. No one likes to make decisions about who’s right and who’s wrong. So sometimes these things get low priority. Big mistake. Delaying an investigation is going to make it much harder to conduct, as people’s memories lapse or alibis get manufactured (yes, you heard me). Delay also violates your legal obligation to take reasonable steps to prevent harassment before it happens and to stop it when it does. Act, and act fast.

3.  Ignore what’s in your handbook and policies. Remember how much you paid for your handbook? Now’s the time to use it. Most likely, it has a description of what will be done in an investigation. That’s your instruction manual. Follow it. If you don’t, you’re going to be accused (and with good reason) of conducting a cover-up rather than a good faith investigation.

4.  Put the alleged harasser’s buddy, or boss, in charge.  Don’t laugh, it’s happened. Investigations are worthless if they are not objective. In fact, they are worse than worthless. They can turn a potentially isolated incident into a major disaster. Get someone who has no connection with either party to conduct the investigation. If you have to, hire someone.

5.  Promise secrecy. You may not promise complete confidentiality. To anyone, in any investigation. You need to talk to others to conduct the investigation. How else can you find out what occurred, or evaluate the credibility of the actors in the frequently-occurring “he said, she said” situation? An employee seeking confidentiality needs to be reminded that the company will not tolerate retaliation (see number 9). But your legal duty to thoroughly investigate means you can’t promise that no one will hear about what happened or who was involved.

6.  Ignore witnesses. If the complainant says someone heard or saw something, talk to them. Ignoring the complainant’s witnesses is another indication of a whitewash. To a jury your not talking to a potential witness means you reached your conclusion before the investigation started. That’s not a good thing.

7.  Keep informal (or no) records. Repeat with me the HR mantra — if it wasn’t documented, it didn’t happen. Write everything down. Keep it all in a separate file until the investigation is complete. If discipline is imposed against someone after the investigation is done, by all means the reason should be included in the appropriate personnel file — just not while the investigation is pending, please.

8.  Conclude with “I don’t know.” Let’s face it, many complaints boil down to one person’s word against another.  You still have to make a decision. Either something happened or it didn’t. Say what you think, and document the objective reasons why you think it.

9.  Retaliate. “I think I’ll just put the complainant on the night shift to separate them while I sort this whole thing out.” Wrong. You just retaliated against the complainant, and added a cause of action to the lawsuit. That goes for anything that could be characterized as adverse (more frequent performance reviews, exclusion from meetings, changes in responsibilities, and many more things can be considered retaliatory). Also, keep the complainant informed of the progress of the investigation, and follow up during and after the investigation to make sure nothing untoward is happening. And, I hope it goes without saying but will say it anyway, stop it if it is.

10.  Let harassment or discrimination slide. If you conclude that something improper happened, you need to do something about it. It doesn’t matter if the harasser is the biggest rainmaker in the firm, conduct that violates the law and your policies must have consequences.

Keep these in mind and things should go well (or as well as can be expected after someone’s complained). Ignore them, and the lesson can be a bit more difficult.

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