Nine things you need to know about harassment investigations
By Randi Chapnik Myers, LL.M, Dr. Stephanie Bot, C. Psych. and Donna Marshall, M.A.
When HR professional Morgan Endral transitioned into a senior role in her organization, she discovered she had inherited an unresolved harassment complaint lodged by a female executive assistant against her male supervisor.
In it, the assistant claimed that her supervisor failed to look her in the eyes when he addressed her, always spoke in a harsh tone and consistently left her out of meetings. On the surface, the complaint appeared straightforward, but it wasn’t. Endral may not have known that, though, had she not made the decision to engage a third party to conduct an independent investigation, which revealed important information.
It turned out that as an immigrant to Canada, the supervisor regularly avoided eye contact with women as a sign of respect, his tone sounded harsh because he had not yet learned soft skills distinctions of communicating in English and the meetings he excluded the assistant from were confidential in nature. As a result of these findings, the investigator recommended coaching to help both parties work together more amicably, a measure that may not have been considered without a proper investigation.
Interpersonal conflicts and misunderstandings happen in every workplace, but in the wake of the #MeToo movement there is an escalation in complaints and greater pressure on HR to address them in a meaningful and proactive way. That’s tricky to do because, too often, office politics become as contentious as the complaint itself.
Understandably, HR professionals can start to feel overwhelmed and vulnerable to criticism as the nuances of harassment complaints unfold. They find themselves navigating new terrain in managing problems that used to be dealt with quietly and internally, if at all. Gone are the days when organizations could look the other way or just encourage everyone to shake hands and make up. It is now commonplace to hire an independent investigator to look into harassment complaints, and best practices are emerging as a result.
It’s the law
The cultural tide is shifting on the harassment front, sparking new legislation and more litigation. Thanks to Bill 132, an amendment to the Ontario Occupational Health and Safety Act, organizations are required to have a “written program” outlining how workplace harassment complaints will be appropriately handled. The new Bill C-65 will soon place stiff requirements on how federally regulated organizations should manage and prevent harassment, as well.
Courts are coming down hard on employers for improperly conducted investigations. A recent Ontario Court of Appeal judge found that an employer’s internal investigator was “utterly deficient” with “no experience or training in conducting workplace investigations.” The complainant was awarded 10 months of reasonable notice, along with $85,000 in damages. As well, the organization received significant negative press for its maltreatment of the employee and mishandling of the investigation.
Make sure it doesn’t happen to you
The last thing anyone wants is a harassment complaint contaminating a positive work environment. How can you do your part to help the investigation to benefit and protect your organization as well as prevent future complaints? Follow these nine steps.
1. Keep it confidential
By the time the investigation process has begun, the requirement that the complaint be kept confidential may well have been breached. That’s because at most companies, people work in close quarters and can’t seem to help but talk – or whisper – around the water cooler. While spreading the word may seem innocuous, in harassment cases, confidentiality must be respected. Leaking a story compromises the investigation by fueling rumours, tarnishing reputations and tainting witness credibility.
2. Be timely
If an investigation is warranted, you need to get on it – fast. Otherwise, you may find yourself with an even messier problem on your hands. The longer harassment goes on, the more likely it is that someone will get harmed, confidentiality will be breached, people will start taking sides and the organization will be held accountable for exacerbating the conflict through delay. By handing the complaint to a neutral third party, you get the problem off your plate, reduce further risk to the organization and avoid allowing a backlog of complaints to pile up.
3. Take a proper complaint
Taking a proper complaint from an alleged victim of harassment is easy if your company policy sets out clear guidelines. If not, the complainant should simply state the facts – not allegations, inferences or hearsay – and attach any supporting evidence. If an investigator has to read 10 pages of allegations to figure out what’s going on, that’s time and money unnecessarily spent.
4. Understand the investigation
The investigator is not a judge and doesn’t provide legal or psychological services, opinions or advice. Rather, this role is one of neutral fact-finding. The investigator must be able to analyze all of the evidence – including relevant legislation and any psychological factors and office politics at play – and recommend best practices going forward. The result is an unbiased report that contextualizes the incident, explores organizational vulnerabilities and offers valuable feedback.
5. Go case-by-case
There is no one-size-fits-all solution when it comes to addressing harassment. While your organization needs clear policies and processes that all workers can rely on, each complaint presents unique challenges. When the parties, dynamics and history changes, so does the analysis of the case as well as the findings and recommendations.
6. Appreciate the opportunity
An investigation is a golden opportunity to fix what’s not working in your organization, so view it as a valuable learning experience. Of course, it’s human nature to feel defensive when we’re told we’re not running the ship perfectly, but the goal here is not perfection – it’s improvement. Good investigations don’t just focus on problems; they offer solutions that improve the work culture by preventing incidents from happening again.
7. Hire the right people
As in any field, there are good investigators and inadequate investigators. The best ones realize that harassment does not exist in a vacuum. It’s not enough to merely determine whether or not harassment occurred. The investigator must be qualified to look at all sides of the complaint by balancing both psychological and legal factors in order to assess the situation.
8. Get the right training
The best way to head off harassment is to make sure everyone, at all levels of the organization, understands what behaviour is appropriate and not appropriate at work. That requires putting into place proper harassment procedures and making sure that training is mandatory, clear and accessible to all employees and leaders. However, not all training is created equal. Just because you have ticked off this box by downloading a white paper doesn’t mean your staff is properly educated.
9. Consider the cost
Proper harassment investigations take time, skill and insight to be effective in generating lasting change. A legitimate business expense, they are worth every penny because they save time and money while protecting you from liability, bad press and “hidden” costs – sick days, mental health leave, poor performance and low morale.
Research shows that today’s employees demand a healthy, respectful work environment where they can reach their potential and HR plays a crucial role in making that happen. By engaging psychologically and legally sound harassment investigations, you will not only lower the incidence of workplace harassment, but also help to enrich your company culture, setting it up for both short and long-term success.
Randi Chapnik Myers, LL.M., Dr. Stephanie Bot, C. Psych. and Donna Marshall, M.A., are co-founders of Workright Investigations Ltd.