Summary: If you’ve received a complaint of harassment in your workplace, it’s important that you take the matter seriously and take action immediately. This podcast with Nancy Saperstone from Insight Performance talks about how to handle a harassment complaint.
John Maher: Hi, I’m John Maher. I’m here today with Nancy Saperstone, Senior HR Business Partner at Insight Performance, a human resources and employee benefits consulting firm based in Massachusetts, with offices in Dedham and Beverly. Today our topic is harassment. I’ve got a harassment complaint, now what? Welcome Nancy.
Nancy Saperstone: Thank you for having me.
Harassment in the Workplace Defined
John: Sure. So Nancy before we talk about what to do, let’s first understand a little bit more about what harassment in the workplace is.
Nancy: Yes. It’s interesting. A lot of times we get conversations or questions from people saying, “I’ve got this manager that yells at me all the time, they are harassing me, isn’t that illegal?” and really, that’s typically not illegal.
What makes harassment in the workplace illegal is when it’s really directed at someone who is a member of a protected class or it creates a hostile work environment where that employee can’t do their job under the circumstances. Or if it’s made a condition of employment or a submission to that conduct is used in making an employment decisions, such as a promotion or a work assignment or a salary increase.
John: Okay. Just being a mean boss, that’s not enough.
Nancy: No, that would not be considered illegal harassment. You may need to look into it and what’s certainly a violation probably of your company policy but not necessarily illegal harassment.
What to Do When an Employee Makes a Harassment Complaint
John: Okay. An employee comes to you and tells you that they’ve been harassed, what do you tell them?
Nancy: It’s interesting. A lot of times the first thing somebody says, “I don’t want you to do anything about this.” It’s really important, especially if the employee says that to you, to let them know that you do have a legal duty to investigate the complaint even if they tell you they don’t want it investigated and that you’re going to conduct a good, prompt, neutral investigation of all the allegations. The company has a policy that you can’t retaliate against somebody for raising a complaint.
It’s also important to let the employee know that as much as you can keep the matter confidential, you will, but that it’s not possible to keep it 100% confidential. But you should encourage them not to talk with their co-workers about it.
What Not to Say to Employees Who Make a Harassment Complaint
John: Okay. Is there anything that you shouldn’t tell them?
Nancy: To do? Yes. It’s interesting, you don’t want to encourage them. You don’t want to tell them, “Don’t go to the EEOC,” which is the federal agency that investigates or tell them that they can’t go to the state or local agency that investigates harassment complaints. You want to stay out of that realm of it.
You also don’t want to insist that they talk and confront the harasser. We train on sexual harassment, we really do encourage people to talk to the alleged harasser, but if they’re not comfortable with that, you don’t want to really push them or force them to do so. Again, you want to make sure that you don’t promise them that you’re going to be able to keep it 100% confidential.
How to Investigate a Harassment Complaint
John: Okay. You as a manager or a business owner, you’re trying to run a business but now you have these two employees that are at odds with each other. What should you do as you set out to do this investigation into the issue?
Nancy: You want to make sure you try and defuse the situation as much as you can and that you set up a situation where if it is happening, it can’t continue to happen. That may mean separating the alleged harasser and the person who’s complaining about it, whether it’s putting them on different shifts or putting them in different locations or different areas of the office.
You want to make sure that you are able to really diffuse that situation. You may want to even talk to the victim and ask them what would make them comfortable as you go through the investigation. Again, a lot of round harassment deals with kind of this reasonable person standard, which is how the law outlines it. So if the victim gives you something totally outrageous, you may not be able to do that. But within reason, ask them and see what’s going to make them comfortable as you do your investigation.
John: Okay. Now you’re ready to do the investigation, who should do that? Who should go about doing the investigation?
Nancy: The person who’s doing the investigation should always be somebody who’s impartial to the situation, they’re unbiased. You want them to be well respected by both parties and typically somebody who’s high-ranking, if it is somebody within the organization. A lot of times people do bring an outside investigator into the process, so that way you can make sure that it is impartial and unbiased. It also should be somebody who’s been trained in doing an investigation and is knowledgeable about the law and sensitive to the issues.
John: Okay. When should you do it? Is it something that you should jump on right away as soon as you get a complaint or something that should let it sit for a couple of weeks and see what happens?
Nancy: You do want to move quickly when it comes to harassment complaints because you have an obligation under the law to do an investigation. Especially with physical violence, I would move immediately. If it’s not physical violence, as soon as practicable. It may not be exactly that day or the next day, but I would say within two business days.
John: Okay. Who should you interview in the process of the investigation?
Nancy: You’re going to want to interview everybody who’s involved to an extent. That would be the person who made the complaint, the alleged harasser, anybody who witnessed the complaint or may have witnessed the complaint.
John: So, co-workers maybe that work in the same areas as that person?
Nancy: Right. You can ask the person who has raised the complaint if anybody else saw that and who they are and you can talk to those people. Same thing on the alleged harasser, I would ask them if anybody saw [what happened] if they’re denying any behavior. Ask if anybody else saw something that didn’t happen. So anybody who’s going to help corroborate the stories on both sides.
John: What should you say to the people that you’re talking to in the interviews?
Nancy: The first thing you want to [do is] make sure you let them know that you want to protect their privacy as much as possible and that your conversation with them is confidential as much as you can. You really want to kind of go through a factual account of what happened and get their point-by-point description of an incident.
John: In terms of the privacy, like you want to make sure that you’re getting down to the truth and not just that somebody’s not going to tell you about what they witnessed because of maybe fear or retaliation from the person who is being accused of something like that.
Nancy: The law definitely has protection [against] retaliation and you can let the people that you’re interviewing know that by participating in this discussion and in this investigation, they are also protected from retaliation. So we really want to encourage employees to talk factually about what they saw or heard or know.
John: Okay. Then what do you do when you’re all done with the investigation?
Nancy: When you’re all done, you should put together a written report that details the facts of the situation and also explains any conclusions that you have. You’re going to also then want to follow up with both the person who raised the complaint and the alleged harasser to make sure you go over the results that you have with them.
Then you may, if it was found that there was some kind of harassment, you are going to implement some remedial actions. The question always is “What is a remedial action, what do I do?” A lot of that’s going to depend on how severe the harassment is. If it was something that’s less severe, it might be a written warning or a suspension for a day or two or sending them to training. If it’s more severe where you have either a physical violence or real quid pro quo harassment, it may be up to termination.
John: Okay. You mentioned a report. When you’re done, how do you document the investigation and what should the investigation file have in it?
Nancy: You should definitely make sure you have that report and make sure you have all the confidential information. It doesn’t necessarily go in their personnel records. I would keep that file separate and make sure that you have a summary of everything that you found and what you discuss with the different interviewers they are in that file, in the harassment investigation file.
John: All right, that’s great information. Thanks again for speaking with me today Nancy.
Nancy: Thank you for having me.
John: For more information, visit insightperformance.com or call 781-326-8201.
