More on Sexual Harassment
Sexual Harassment Investigations
NC is hired in December 2008. In her first week she misses work once. In her next week, she misses work twice. In her third and fourth weeks of December, she misses work 3 times. Each time she says that the absence is caused by a sick family member, a child who has leukemia.
NC continues missing one to two days of work a week between January 1 and February 20. The reason given is always that she has a sick child, deathly ill with a perilous form of cancer. On February 21, GB, her supervisor asks for a doctor's note to substantiate the absences because he is concerned about the productivity of the work group. On February 22, NC complains to an intermediate supervisor that GB has been sexually harassing her.
NC says she cannot go back into a workplace and see GB because it is too traumatic and painful. She is placed on paid administrative leave while an investigation is conducted. The investigation begins on March 4, and runs through March 29. No evidence is found, other than NC's statements, that GB ever acted inappropriately toward her. No one corrorborates NC's statements. Two employees, when asked, suggest that over the course of their multi-year employment with the office that they have heard GB make remarks that were insensitive, but did not rise to the level of sexual harassment. One of them had repeatedly asked to work for GB.
The investigation concludes with a requirement that GB take supervisory training. A few days later this is communicated to NC, who is told to come off paid administrative leave for a job in another department. She tells the employer she can't be in the same building with GB, and refuses. Her lawyer sends a threatening letter.
The employer calls in GB and dismisses him for sexual harassment because of the two inappropriate remarks and NC's refusal to return to work.
Sexual harassment investigations demand attention to detail. They are conducted, if at all possible, by at least one attorney, and are aimed at finding evidence that supports the charge leveled, not other uncharged acts of misconduct. When the investigation is complete, the results are provided to both the accused and the accuser. Only when the charge is sustained and the conduct is so severe it cannot be remediated is the discharge of the harasser appropriate.
NC files a charge with the state Human Rights Commission. The HRC does an investigation and concludes that the charge of discrimination cannot be supported by evidence. It issues NC a right to sue letter. NC files suit. Investigation by GB's attorneys reveals:
- NC was convicted of making a false report of child sexual abuse against her ex-husband.
- NC accused a supervisor with a state agency of sexual harassment 5 years earlier and collected a confidential payment of $7,000. The allegations in the prior complaint are a carbon copy of the allegations in the current complaint.
- NC falsified her Pharmacy Tech license application.
- NC has been accused of slander by a former lover.
- NC was sued by her mother for custody of her children.
- NC told her therapist that at the time she was supposed to be taking her exceptionally sick child to the Mayo Clinic she was actually visiting Disneyland with her girlfriend.
A sexual harassment investigation conducted by the employer must be focused first on the conduct alleged. The credibility of the accuser is often paramount in making a determination about whether the harassment actually happened or not. While most organizations do some kind of background check on employees, there is often no way to ensure that a full understanding of the employee's background will emerge in an investigation. Hiring an investigator to go out and investigate the background of the accuser might be thought of as retaliation, and is generally discouraged. However, public sources of information (court records, state criminal records databases, etc.) are readily checked and can yield information about an employee that is often critical in assessing credibility.
The fact that an investigation finds no support for a charge of harassment should be dispositive on the issue of whether the supervisor or harasser is permitted to retain their employment. If a deficiency in supervisory or managerial skills is found in the investigation, these can be improved with training.
What an organization must not do, however, is generate a knee-jerk response to a charge of harassment. Simply firing the accused harasser may seem like a simple way to solve the problem, but it complicates things immeasurably because it suggests that the organization actually found harassment but was unwilling to take the complainant seriously. It actually works to make the case against the employer stronger, and is a very dumb thing to do.
The keys to a successful investigation are as follows:
1. Interview the complainant. Get him/her to tell you everything that was done that was considered to be harassing. Make sure they tell you everyone they told about the harassment, and everyone that witnessed it.
2. Interview the witnesses. Determine if they support or refute the employee's charges. If there is no support for the charge, the investigation may be closed at this point.
3. If the investigation finds witnesses who support the complainant in whole or in part, then the accused harasser should be interviewed and asked specifically about the relationship with the accuser. If he admits the charges, then the situation must be remediated. It is often wise to engage a professional attorney or mediator at this point to assist the employee and employer in finding a way to fix the problem. This is the case irrespective of whether the harasser is a supervisor or co-worker.
4. If there is no admission, and no supporting evidence in the form of witnesses who saw the harassment, then a limited inquiry into the supervisors relationship with other employees and into the harassers managerial skills (assuming it's a manager and not a co-worker) is often helpful to find out what's causing the perceptual issue with the complainant.
5. If the complainant files a charge with the State or Federal government, respond to the inquiry with the results of the investigation and provide access to the witnesses to facilitate the agency's investigation. Always be open and honest with a federal or state agency.
6. If the complainant requests a right to sue letter and files suit, engage counsel for the employer, and separate counsel for the accused employee.
Sexual harassment cases are complex and difficult litigation matters. Although the above is a general guideline, it is not a substitute for qualified legal advice.