Tag Archives: investigation

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

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Investigations: They Gotta Be Real

Employers frequently seek to get investigative reports and related documents into evidence when complainants who are dissatisfied with the investigation’s outcome go on to file discrimination or harassment lawsuits.  They do this to show that they acted properly and in good faith.  Although the documents are technically inadmissible hearsay, they can be fully admitted under the business records exception to the hearsay rule or admitted only to show that the employer had a proper motive for its actions against the employee.

A recent federal court decision in an age discrimination case, however, makes an important point: for investigatory documents to be admissible, the employer has to conduct a quality investigation that actually seeks to determine if discrimination or harassment occurred. The court found that had not occurred in this case, providing a variety of reasons:

  • The investigation was conducted by a company human resources professional, not a neutral party.
  • The HR investigator selected whom to interview and what evidence to consider.
  • There was no hearing, no sworn statements, and no opportunity for the complainant to respond to the criticisms leveled against him or to examine witnesses.
  • The investigator’s report did not include evidence that would have been favorable to the complainant.  It did not include his performance reviews or interviews with the complainant’s clients or previous managers.
  • The investigation focused more on the complainant’s job performance, particularly on two difficult customer accounts, and not on whether he was terminated because of his age.
  • It appeared that the purpose of the investigation was to exonerate the company rather than to determine if the complainant was treated unfairly.  This was shown by the fact that the investigator said he would have discontinued his investigation had the complainant signed a severance agreement.  The court said that if the purpose of the investigation truly was to determine if there had been unfairness, the employer would not complete it only if litigation was looming.

In my experience, some of the court’s reasoning here is a bit extreme, particularly its criticisms of the lack of a hearing, opportunity to examine witnesses, and sworn statements.  These are not typically required elements of an investigation.  But the case does have a number of key takeaways:

  • In more complex or significant cases, it is often wise to hire an outside neutral investigator.  If that is not feasible, the internal investigator should pursue the matter with the same integrity and scrutiny that a good outside investigator would.
  • An investigator should always ask the complainant for (1) a detailed account of his or her complaint; (2) relevant documents; and (3) names of witnesses he or she would like the investigator to interview.  To the extent feasible, the investigator should then follow up on all of these allegations and leads.
  • The investigator should include in his or her investigative report any positive evidence gathered.  If despite these positives the investigator finds against the complainant, the report should indicate why the positive evidence was not determinative.
  • Once an investigation is begun, it should be completed regardless of whether the complaining employee leaves or the issue becomes moot.  In fact, even if the employee submits a complaint only after her or she has left, the employer can still conduct an investigation.  The goal should be to determine if there is a problem and to properly manage risk, not to just pay lip service to the company’s EEO policy.

Do you see any other morals to this story?  ~Amy Stephson

Recognizing and Addressing “Emotion” Words

When investigating, mediating, or otherwise attempting to resolve a workplace conflict, it’s helpful – indeed critical – to recognize “emotion” words.  What are emotion words?  Words that contain more heat than light and that therefore call for further exploration of what’s going on. Another word for them: hyperbole.

Two classic emotion words are “always” and “never.”  When an employee says that something “always” (or its cousin, “constantly”) happens, it’s time to ask for specifics, i.e., how many times has the event occurred or comment been made?  Despite having conducted thousands of investigative interviews, I remain surprised at how often the answer is “two or three times,” “three or four times,” and the like.  Similarly, with “never,” it’s helpful to probe a little further to see if it’s really never, or just “not recently.”

Another example is “yelled” as in, “He yelled at me.”  The dictionary meaning of “yell” is to say something very loudly.  Yet many people will say they were “yelled at” to describe any negative or critical comment directed toward them.  Therefore, when you hear that someone was yelling, it’s always wise to ask the person to demonstrate exactly how loud it was. They themselves will often then recognize that it wasn’t loud, just upsetting, intense, or rude.

One more: duration of time.  People will often say that something lasted for “an hour,” or “at least 20 minutes,” or some other fairly long period of time, when they’re describing a negative event (such as being yelled at).  In these situations, I often count out seconds (one one-thousand, two one-thousand, three one-thousand, etc.) and then ask again. The resulting number is usually very much smaller.

So does this tendency to exaggerate mean that the person is not credible? Not necessarily. It just means that many people express the emotional content of an event through hyperbole and emotional words.  And while it’s essential to separate out the emotion from the facts, it’s important to nonetheless recognize the emotion behind the words and take this into account as you figure out what to do with the crazy situation before you.

What are some other emotion words you’ve encountered in the workplace?  ~Amy Stephson

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