Tag Archives: harassment

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

The “Perception Is Reality” Trap

We all know the phrase, “perception is reality.” And in a psychological sense it is true: we all experience the world through our own lens and that is our reality.

In the world of human resources management, however, I find that this phrase can muddy up the analysis necessary to effectively lead and manage employees. This occurs particularly in workplace investigation and conflict resolution contexts where it is all too easy to be sucked into an unreasonable employee’s perceptual wormhole.

Here’s how problems arise. When applying harassment policies, we are taught that it’s the impact of an employee’s actions on another that matter rather than the employee’s intent. This is often true: someone may think they’re “joking” when they make a sexist or racist remark, but regardless of their intent, such remarks can still be harassment based on their impact on the recipient.

This does not mean, however, that any and all perceptions, i.e., impacts, are created equal. Because the law also provides that the recipient’s reaction to an action or remark must be “reasonable,” i.e., based on some objective reality. Some examples:

  • A female employee sees posted in a male employee’s cubicle a birthday card with a scantily clad female on the front. Can she ask management to direct him to take down the card? Sure. Can she argue that the card in and of itself has created a hostile work environment for her? Not so much. However upset she may be about the card, her perceptions do not trump the fact that a reasonable woman would not find her workplace imbued with gender hostility based on a co-worker’s birthday card with a bikini-clad woman on the front. And she needs to be told that. [And yes, this was a real case.]
  • An employee contends that he feels “unsafe” after his supervisor critiques his job performance in a closed door meeting. Or he contends that the supervisor was “abusive” for telling him he could be terminated if his repeated tardiness continued. The employer will certainly want to check into these allegations to make sure the supervisor did not behave inappropriately. But once the employer is comfortable that the supervisor was just doing his or her job, the complaining employee must be told that in no uncertain terms.

It’s hard to tell a complaining employee “in no uncertain terms” that his or her perceptions are incorrect. Such messages must be delivered kindly and without any suggestion that the employee is lying or crazily hypersensitive.

In appropriate cases, moreover, management may want to take some steps to at least partially acknowledge the complaint (“We have told him to take the birthday card down” “Would you rather meet with your supervisor in a conference room next time?”) But it is critical at the same time not to enable or encourage employees to maintain their unreasonable perceptions.

Why not just give in? After all, that “unreasonable” employee may decide to bring a lawsuit against an employer for not taking the actions he or she demanded. So yes, it is important for an employer to take complaints seriously even in cases involving “perceptually challenged” employees.

At the same time, such employees often have a highly negative impact on both co-workers and managers, to the point that these others may leave. After the due diligence is completed, therefore, it is equally important to insist on a level of sanity and reason in the workplace.

Any additional thoughts on this issue? ~Amy Stephson

Workplace Gossip Policies Revisited

Three years ago, I wrote a post asking whether it was a good idea for employers to institute workplace anti-gossip policies.  As everyone knows, gossip in the workplace is ubiquitous and inevitable — and can be devastating to an organization and individuals if it goes beyond a certain point. I left the issue open, but such policies do raise a number of questions.

One, for example, is how to define and regulate “gossip.” One person’s gossip, after all, may be another person’s discussion of problematic personal interactions or work conditions (see below). Another question is how to monitor gossip: no wants to encourage a tattle tale, “Mommy, he was mean to me!” culture.  In addition, many believe that excessive gossip reflects other problems in the workplace such as inadequate communication or perceived inequities — and management’s job is to tackle those problems, not the negative effects.

Recently, moreover, things have occurred in the legal landscape that make this issue more complicated. The National Labor Relations Board has ruled that a range of employee communications, even by those who work in non-union workplaces, are legally protected under Section 7 of the National Labor Relations Act.  That section gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” when such activity addresses terms and conditions of employment.

Using this law, the NLRB has ruled that employees cannot be disciplined for engaging in protected activity, including for communications about work issues on social media. It also has invalidated employee handbook provisions that suggest that an employee could be disciplined for engaging in such activity. In one case, for example, the NLRB criticized an employer’s handbook statement that employees needed to be “courteous, polite and friendly” and could not be “disrespectful” or use language that injured the image or reputation of the company.

It is beyond the scope of this blog to discuss the legal parameters of this emerging area of the law.  Suffice it to say that if several employees are talking about how cheap the boss is because they haven’t gotten raises in two years, that is likely going to be protected concerted activity regarding wages and they cannot be disciplined for this conversation.  On the other hand, if several employees are discussing what a “tramp” a co-worker is, that is likely not protected as it does not pertain to working conditions. 

So where does this leave employers who are thinking of implementing anti-gossip policies?  Proceed with caution. And when in doubt, consult a lawyer. It remains important, however, to address gossip that may rise to the level of harassment or discrimination, and more generally to address morale issues that may result from excessive gossip or badmouthing.

What are your thoughts?  ~Amy Stephson

Harassment Prevention Training: The Two Key Takeaways

After conducting more than 250 workplace investigations and presenting dozens of harassment prevention training workshops, I’ve concluded that if employees could understand just two key points, harassment incidents in the workplace – both actual and perceived – would be significantly reduced. 

The reason is that most accused harassers are not bad people: they just don’t get it.  And if they did get it, most of them would not engage in behaviors that lead to harassment complaints against them.  This is true from top to bottom in every organization.  For those with power, the rules apply even more strongly.

So what are these two key points?

First, it is essential to maintain professional boundaries in the workplace at all times.  Workplace boundaries are different than those on the outside.   Work is a place where you perform tasks within a hierarchy in exchange for money.  As such, at its emotional core, work is a serious undertaking and while there, people are sensitive to anything that might threaten their livelihood.  Television shows notwithstanding, work is not a place to play practical jokes, discuss one’s relationship problems and sex life, gossip about others, or mess with people’s sense of self.  You are free to do these things, but it is at your peril: if you cross the line at the wrong time or with the wrong person, you will pay.  

You can be friendly, laugh, and have some fun at work.  Just be sure to remain professional and remember that you’re at work to do a job, not to get your deeper social and emotional needs met. 

Second, you never know if your behaviors are actually welcome.  You may think that Sue likes your hugs or neck massages because she seems to welcome them and doesn’t object.  And after all, you’re just a friendly  “touchy feely” person with no ill intent.  You may think that Sam likes your racist or sexist jokes because he seems to welcome them and doesn’t object.  And aren’t jokes a good way to create a personal bond?

But Sue and Sam may really dislike these behaviors and the impact on them may be very different from your intent.  Or the behaviors may have been welcomed at first, but no longer. Then why don’t they speak up?  They don’t like confrontation, fear ostracism or retribution, don’t want to hurt your feelings, or believe they need to keep you on their side to succeed at work.  At some point, however, Sue and Sam may decide that your behaviors are hurting their ability to do their jobs and it won’t be you they tell.  It will be the boss.  If you’re not sure you should say or do something, don’t.

Of course, harassment prevention training includes other valuable information. (Like bosses should not have personal relationships with subordinates unless they plan to marry them.) If everyone leaves understanding just these two key points, however, the training may actually work.

Did I miss something you think is equally important?  ~Amy Stephson

Boundaries for Managers: Do’s and Don’ts

Boundaries: those invisible lines that some people instinctively recognize and others just … don’t.  But whether you recognize them or not, maintaining boundaries is incredibly important for managers and supervisors. Why? Because contrary to the images of work life we see on television, most people have a strong inner sense of which types of behaviors are appropriate for their leaders and which are not. 

And when a leader crosses a boundary, the penalty can be severe: harassment allegations, loss of respect, and loss of promotional opportunities.

Following is a list I developed some time ago that has proven to be accurate time after time.  If this helps just one person in supervision or management not cross the line, I will have done a good deed. 

DON’T

  • Discuss sexual matters or private personal issues with subordinates.  This includes sexual jokes and banter, private problems with a spouse, etc.
  • Let subordinates confide in you or vent to you about their personal social or sexual problems, experiences, etc.  This includes private problems with a spouse, difficulty with children, sexual encounters, etc.  You can certainly be open to employees coming to you with personal problems that are affecting their work, but your approach should be, “What do you need (or how can I help you) during this difficult period?” You don’t want to be their confidant or give advice.
  • Engage in gossip about your peers or subordinates with your subordinates.
  • Touch subordinates.  This means no congratulatory or consoling hugs, no neck rubs or back rubs, etc.  Keep touching to handshakes only.
  • Send e-mail or texts to subordinates on personal issues.  Keep all e-mail and texts business-related. 
  • Drink alcohol to excess while on company business with subordinates.  This includes at conferences, business trips, office parties, and business lunches and dinners.
  • Have closed-door one-on-one meetings with subordinates (particularly those of the opposite gender) unnecessarily or outside business hours.
  • Avoid female subordinates for fear of harassment charges.

DO

  • Be friendly to subordinates.
  • Discuss work-related matters freely with subordinates.
  • Treat all subordinates with respect and dignity.
  • Always remember you are the leader and the one with power–because no one else ever forgets it.

Do you have anything to add to this list?  ~Amy Stephson

The Power of the Bystander

Bullying, badmouthing, ostracism and other forms of negative behavior in the workplace can be surprisingly difficult to address.  The targets and other employees may be scared to report the problems for fear of retribution by the offender. If they do report problems, it can be time consuming and unpleasant for management to investigate, make findings, and discipline the offender because he or she often reacts with anger and denial to the accusations. If discipline is imposed, the offender may use every form of appeal possible, be it a union grievance or complaint to upper management.

Those who work on bullying (and harassment) issues, particularly in the K-12 school setting, have long discussed the role and importance of the bystander. As one website notes, some bystanders instigate, encourage or join the bullying, but most just “passively accept it by watching and doing nothing.” This occurs for a variety of reasons, e.g., the bystanders feel it’s none of their business, fear becoming targets themselves, or don’t know how to intervene.

The effect of this silence and inaction, of course, is that the offender is empowered and the target feels even more hopeless and isolated.

Management should educate employees about the power of the bystander and techniques to stop poor behaviors by their co-workers.

So what can bystanders do to change this dynamic? They can speak up and address the negative behaviors as they’re occurring (“I don’t think this conversation is appropriate. Let’s move on.”) They can change the subject (“Anyone want to xxx?”) They can simply go and stand by the target in order to break the negative energy and make a silent statement. Later, they can document what happened and report it to management, anonymously if necessary.

And what is management’s role? It can educate employees about the power of the bystander and techniques to isolate the offenders and show them that their behavior is noticed and unacceptable. The goal is to get everyone on board feeling empowered to help stop the toxic behaviors. Equally importantly, management should tell employees that it will protect those who come forward with complaints and ensure that there is no retaliation by the offender. Management must then follow through on this.

It takes a village – and a lot of work – to stop a bully or other toxic personality in a workgroup. But the problem won’t go away by itself and using discipline as the sole tool can be frustrating and ineffective.

Any other thoughts about the power of the bystander? ~Amy Stephson