Tag Archives: discrimination

Should You Investigate? Part 2

Last time we talked about Sally, who had come to management saying she was being “harassed” and was working in a “hostile work environment.” Management took her to HR. But then what?

Too often, what happens next is one of two things. If Sally is a difficult employee, has been known to complain in the past, or if the person she is complaining about is well liked, the inclination is to dismiss Sally’s complaint and do nothing. The other thing that often happens at this point is that a formal investigation is immediately started – either internally or by bringing in an external investigator. Either of these might be the correct response…BUT NOT YET. Without knowing more about the issue, it is not possible to determine what steps should be taken. Just because an employee uses words like “harassment” or “discrimination” or “hostile work environment,” it does not necessarily mean you will need to conduct a full-blown investigation.

The first thing to do (after taking the steps described last time to protect the employee and assure the integrity of any future investigation), is to perform a high-level review of the facts as Sally presents them. Here are some things you should consider in deciding about next steps:

  • Determine whether Sally’s complaint is general (e.g., Henry is mean and unfair in the way he treats his staff) or specific (e.g., yesterday he gave Sally a frontal hug, stroking her back and making her very uncomfortable.)
  • If what Sally is telling you is new to you, listen carefully in a neutral, non-judgmental manner, and take notes without making any editorial comments.
  • If what Sally is telling you is not new, determine whether prior complaints about the issue she is raising have been looked into. If they were, what happened? If they were not, why not? Use this information as part of your guide for action.
  • Not all complaints require an investigation. If Sally’s complaint is more general in nature, it may require an organizational assessment or an assessment of the skills of the manager, rather than an investigation.
  • If Sally’s claim leads you to believe that your policies (or laws) may have been violated, are these violations of policies/laws against discrimination, harassment, ethics, employee conduct, etc.? If not – Sally may still be unhappy, and her unhappiness will still need to be addressed, but not from a policy violation perspective and not by an investigation.

It is very important to understand the basics of the problem or issue before addressing it. In many of the investigations I have conducted over the years, I’ve not seen that anything illegal has happened. In fact, frequently no company policies or laws have even been violated, and sometimes the employer could have determined that quickly without even calling me. In many of these cases what I have seen is poor communication, employees who are unhappy for a variety of reasons, and supervisors and managers who may have good technical skills but don’t have people skills.

So remember:

  • Don’t ignore employee complaints.
  • Employees don’t have to come to you with their complaints – they can go directly to their attorney or an outside rights agency. If they do that, it will cost you a lot more (time, money, good will and reputation). Create a workplace where employees want to resolve their issues internally by coming to you rather than going outside.
  • If you can’t be neutral in hearing an employee complaint (without assuming there either is or is not a violation of policies or laws), have someone else deal with the situation.
  • Respond appropriately. If it’s likely an allegation of a violation, investigate. If it’s likely a complaint of poor supervision, management, communication, etc., you may need to assess the situation further, but you likely won’t need to investigate.

So, before either dismissing a complaint that is brought to you, or immediately beginning a full-blown investigation, take the time to really assess what you know and determine the best way to approach the situation. You’ll be much more satisfied with the results!

Have you responded to an employee complaint with an assessment rather than an investigation? What happened? We’d love to hear! ~Daphne Schneider

 

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Should You Investigate? Part 1

You just got an employee complaint…Oh, what to do, what to do???

I’ve been pondering this question after years of conducting workplace investigations for clients. After about 350 investigations, the results are interesting: in at least 75% of the situations, nothing illegal has happened. So, should there have been an investigation? It depends.

I have found that some clients immediately choose to investigate when an employee uses what I think of as the big trigger words: harassment, discrimination, hostile work environment. Almost everyone in this day and age has heard these words tossed around. They’re in the media all the time. But few of those who use them understand them to have legal definitions based on statutes and case law.

So here’s what sometimes happens: Sally tells someone in management she’s being harassed and is working in a hostile work environment. That person (rightly) report that allegation to either human resources (if it exists in that workplace) or upper management/the CEO. And then I get a call. Sometimes that’s all it takes.

So what should a manager do when someone comes report that they are being harassed, or are working in a hostile work environment? Shouldn’t you just drop everything and call in the investigator? NOT YET. (Yes, I know I may lose some work by saying this.)

What to do instead? Take the following steps, in this order, and then decide whether you need an investigator.

  1. Assure Sally she will be protected from any retaliation in connection with her complaint (and yes, by saying these words to a supervisor or manager, she has already made a complaint). Ask her to tell you if she feels she is being retaliated against in connection with this complaint – and remind her not to retaliate against anyone else. Any retaliation against her (or by her) in this situation is illegal under both Washington state and federal laws.
  1. Have Sally meet with someone who has been trained to deal with such situations. If no such person exists in your company or organization, do bring in an investigator to interview her appropriately. Then get several people trained in these basic interviewing skills. 
  1. If Sally’s complaint is about one or two specific incidents, ask her to write it up, with as much detail as possible. Then have her sign, date and give the written statement to you (you’d be surprised how many such statements are neither signed nor dated.) If you have an actual complaint form for such situations, of course do ask her to complete that as well.
  1. Ask Sally not to discuss her complaint with her colleagues. This is a very important request, for the sake of your ability to deal with the situation professionally. However, you should not make this a directive. The National Labor Relations Board has indicated that forbidding employees to discuss workplace concerns may be illegal.

Once you have information from Sally, if that information indicates that she has examples of behavior that could be harassing or create a hostile work environment under the law, you must investigate or hire an investigator to do so. Failing to do that could cause an additional complaint against the employer.

And, document, document, document. Note when Sally first came to you, what she said, and what you and others did. Keep that documentation indefinitely.

In my next post, I’ll be providing some additional information about questions to ask (or not ask) in that initial interview, and what else to do (or not do!)

Have you had employees come to you with allegations of discrimination, harassment or hostile work environment? What did you do that worked, or didn’t? Let us know! ~Daphne Schneider

Just Say Hello

I still remember when a workplace mediator told me many years ago, “Hello is huge.”  What did she mean? She meant that when employees are upset that someone, especially a superior, doesn’t say hello to them, it’s important and shouldn’t be ignored.

The issue can come up in a variety of ways. An employee may complain about it explicitly. Or, more commonly,  HR or management may hear grumbling about a particular supervisor or co-worker’s unfriendliness or complaints about the supervisor’s inaccessibility.  It’s easy to think: “That’s just her personality” or “I can’t regulate social interactions in the workplace” or “It’s not intentional – he’s just preoccupied.”  But that’s not the correct response.

 It’s easy to think: “That’s just her personality” or “I can’t regulate social interactions in the workplace” or “It’s not intentional – he’s just preoccupied.” 

The reason? All human beings need to feel acknowledged. When a supervisor, manager, or co-worker greets an employee, the message being communicated is that the employee has value and importance. When there is no greeting, the opposite message is communicated. And the employee feels it, particularly if it’s a pattern.  This feeling in turn may lead to resentment, conflict, sensitivity to slights, and in some cases, discrimination or other complaints. I’ve worked on discrimination matters that partially involved this very issue.

Fortunately, this problem is easy to solve. People who don’t greet others are usually not bad people – they’re just not aware of the impact of their inaction.  Some brief coaching as to why it’s important and when it’s called for should be sufficient.

This may sound like advice for teaching kindergarteners. And it is. But as we all know, employees often trip over each other by failing to observe the basics of successful human interaction and communication. 

Next time: apologies!   ~AS

Reflections of a Workplace Investigator

 A gay male employee complains: My co-worker and her husband lunch together every day, but it’s discriminatory that she doesn’t want me to discuss my same sex partner. The co-worker says: I’m a Christian and homosexuality is against my religion. I’m happy to interact with my gay co-worker, but don’t want to have to hear about his partner.

An African-American employee complains: My co-workers laugh and talk about me in their native language. This is harassment. The co-workers reply: When we use our language, we’re not talking about her; we’re just chatting and only do it when no one else is around. Our employer’s policy allows us to speak in our language and it would be discriminatory to stop us.

These are just two of the many scenarios in the life of a workplace investigator. Most are more mundane: Managers have terrible communication skills or play favorites. Poor performers blame bias rather than their job performance. Managers have anger problems. Perceptually challenged employees create havoc. People hate their jobs, but can’t find another that pays as well, so make trouble.

And now a new source of conflict is creating challenges in the workplace: generational diversity. The 62-79 year-old “Matures” (as consultant Karyl K. Innis calls them) have very different attitudes toward work than the 43-66 year-old Boomers, who in turn have different attitudes than the 28–42 year-old “Gen X’ers” or the under-28 “Gen Y’s.”

Is there an underlying reason for all this? Much of it is just human nature: people are complex, see the world through their own perceptual lens, have competing interests, have personality conflicts, lack the necessary competencies, offend and get offended. We live in a country where personal boundaries are often blurred, many have a sense of entitlement or victimhood, and television shows workplaces where there’s more talk of sex than work.

There’s another reason why employers end up having to hire investigators: They fail to prevent conflict through policies, training, and coaching. And then, when conflicts do arise, they fail to manage them in a timely manner. Proactively dealing with conflict may seem like a distraction, but it’s an essential part of risk management and running a productive, efficient business.  ~AS