Sexual Harassment, Quirky Question # 4
I am an HR Representative. One of my duties is to take complaints regarding workplace discrimination, including sexual harassment. One of our female employees recently complained to me that she feels as though she is being sexually harassed by one of our top salesmen. (He is not her supervisor, but she does work on the team that supports sales after they have been made, so he could provide some feedback to her superiors on her performance.)
When she told me about the situation, she was somewhat vague. She also informed me that she will “handle it,” and does not want me to take any action on her behalf. She says that she simply wanted me to know “what’s going on.”
I’ve honored her request that have not done anything in the several weeks since she made her report. I’d like to know what’s really “going on” but I’m trying not to intrude. Do you have any guidance for me?
First, you work in Human Resources. This gives you a license to “intrude.” Indeed, you have an obligation to investigate when necessary. Here, it’s necessary.
Second, you cannot honor the employee’s request that you do nothing. Once you have notice of a potential problem, you need to take action. At a minimum, you need to investigate the situation by speaking directly with the complaining party. Your characterization that her complaint was “somewhat vague” is not good enough. You need to understand the behaviors that have led her to conclude she is being harassed. You may or may not agree with her that the conduct is offensive or problematic, but you need to find out what the conduct is. It’s possible that she will be perturbed that you have initiated an investigation. That’s her problem, not yours. You need to explain to her that the Company is obligated to investigate when alerted to a problem.
Third, you should make an effort to understand whether her reticence to have you take action is linked in any way to a fear of retaliation. Although you pointed out that the alleged harasser is not her supervisor, you also suggested that he could have some impact on the evaluation of her performance. One of your responsibilities will be to ensure that this does not occur.
Fourth, following your interview with the complainant, you need to interview the alleged harasser. He may corroborate the allegations, deny them, or provide you additional information that assists you to evaluate the legitimacy of the complaint. If he reacts adversely, you should remind him that your company does not tolerate retaliation of any kind, and that the company will monitor his conduct carefully to ensure that no retaliation occurs. There are various other components of an effective investigation that are beyond the scope of this response.
In general, when considering the “please don’t investigate” requests, consider the following scenario. Imagine that you receive a complaint accompanied by the request that you do nothing. Assume that you honor that request. Assume further that you hear nothing further about this situation, but that six months later, another employee complains to you about sexual harassment by the same individual.
You must look into this further, as the employee has really officially put you, as the company representative, on notice. What I suggest is that you let her know you must, as part of your job, find out more from her on this situation, as much detail as you can. You are not intruding. You can reassure her that your role is to strive for a harassment-free working environment. While you can tell her you will try to maintain her confidence as much as possible you simply cannot promise complete confidentiality as you never know which way these situations will go.
Response # 2: What do you do if the employee reports that she is being “harassed,” but then walks out and refuses to speak to you? Are you still obligated to conduct the investigation, when the employee is not cooperating?
How about an incident when they quit? Are you still on notice and must you do something? In my view, you should at least attempt to investigate and you should document your efforts.
However, what do you do about the practical challenge of conducting an investigation when the complainant is refusing to cooperate? In California, where I practice, there was a case against CBS, in which the complainant refused to cooperate with the investigation. The court allowed the company to use the complainant’s lack of cooperation as a defense to her later claim of harassment.
As an HR practice, however, there are risks associated with accepting an employee’s refusal to participate in a sexual harassment investigation. You should at least make an effort to obtain more facts from the complaining employee.
