He Said, She Said

Back Q&A Aug 3, 2017 By Suzanne Lucas
We have a female employee who reported sexual harassment from a male coworker. The woman didn’t want to come forward, but once the CEO found out, he felt he had an obligation to handle the claim. We currently are without an HR manager, so we contacted our lawyer and have been instructed to issue a final warning to the male employee. What is the proper way to handle this? Should an investigation be made? Should we ask employees questions regarding the accused? Should the company allow the male employee to know who the accuser was, or should we keep that confidential for her sake?

Goodness yes, there should be an investigation. There should be an investigation immediately. Let’s go through how to do that, step by step.

Who Should conduct the investigation?

Normally, this is something human resources handles. If you don’t have an HR department or if your company is so small that everyone knows everyone else, you’ll want to hire an outside consultant. Why? Because in a small office, knowledge of these two employees can and will influence judgment.

An outside investigator won’t have these preconceived opinions. If your office is large enough that the investigator will not have a personal relationship with any of the people involved, then your internal HR can investigate; but in small companies, this is almost impossible.

Should you tell the accused the name of the accuser?

Some people will say you shouldn’t, in a misguided effort to protect the accuser. Here’s the reality: If the person is guilty, then they already know who they offended. But if they’re not guilty, it’s impossible to defend yourself against an unknown — it turns the whole situation into something Kafkaesque. So yes, I think telling this employee the name of who is accusing them (and of what) is appropriate.

How should the investigation proceed?

The investigator should take a statement from both the accuser and the accused, then ask both for witnesses. They should interview the witnesses and ask if there are other people with whom they should speak. Then they interview and interview and interview some more until everyone has given a statement. Everyone should be cautioned to keep the discussion completely confidential until the investigation concludes.

Coming to a conclusion

After the investigator has spoken with everyone, they can draw up conclusions and make a recommendation. It’s then up to the business to decide what to do with the employees involved.

If the investigator determines what was accused is exactly what happened, then this male employee should be severely disciplined. A termination is always an option in these cases, although you aren’t required to terminate a sexual harasser. If you decide to let him stay, it should be with a huge write-up in his file, and a warning that this puts him at two strikes. One more and he’s out the door. This needs to be the case even if he’s a star performer.

Related: New Workplace Harassment Guide for CA Employers

Your female employee should experience no negative consequences because of her complaint. If she, understandably, does not wish to work with her male colleague anymore, and if it’s possible to move one of them, make sure she is in a similar or better role than before. Any hint of punishment or retaliation can come back to bite you legally.

But what if the situation isn’t quite so clear? This happens more often than you’d think. Perhaps this male employee did say inappropriate things to the female employee, but maybe she said inappropriate things to him as well. Or perhaps he didn’t say any such thing, but this woman has a vendetta against him. In either situation, you need to make sure the punishment fits the crime: Whichever party lied gets the consequences, and if they are both guilty, then they both get write-ups and stern warnings.

The Takeaway

The important thing is that you take every charge of harassment seriously. You must investigate every single incident and you must document everything from the investigation — dates, times, people, conclusions and punishments. There are no exceptions to this “investigate everything” rule. Even if it’s the owner of the company, you’re still obligated.

Investigations cost money and take time, but it’s critical to the health of any business that management investigates immediately when someone complains. Ignoring these situations is not only how you end up with a toxic workplace culture, it’s how you end up on the losing side of a spectacularly awful lawsuit.

Have a burning HR question? Email it to: evilhrlady@comstocksmag.com

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