by Bob Acton
Harassment and bullying complaints continue in organizations despite enhanced occupational health and safety (OHS) legislation, improvements in policies to protect against harassment, and advancements in strategies to improve the psychological health of employees in organizations. Recent social communications (e.g., #MeToo movement) have brought to light harassing workplace behaviours that have taken conversations into the open helping people to be less inclined to talk about such behaviour in hushed conversations.
Harassment has multiple negative implications for both the complainant and the respondent that include health problems (e.g., stress-related disorders, trauma, anxiety, and depression), economic challenges (e.g., the need to move jobs, a risk of barriers for advancement), and litigation. The organization or business itself can suffer from increased ill-health costs, low employee engagement, and reductions in productivity.
Allegations of harassment or discrimination are often uncomfortable for almost all concerned as they are associated with conflict, and conflict is almost universally avoided as most employees do not want to become embroiled in a workplace dispute. Left alone, or avoided, unresolved conflict typically begets more conflict.
Employers, however, have a legal obligation to conduct a prompt, thorough and objective investigation when an employee complains of discrimination or harassment at work. A properly managed investigation reduces the risk for both the organization and the people involved, but employers can fail to properly investigate such complaints or take necessary precautions to prevent further harassing behaviour resulting in retaliation claims, and ultimately, significant liability.
Here are the top fifteen actions human resource (HR) professionals (or those leaders with HR responsibility) can take to avoid putting organizations at risk when you have complaints about harassment and discrimination.
- Investigate even if the complainant only provides a verbal complaint. Only investigating when the complainant provides a written complaint is a common mistake emanating from inaccurate organizational policies. Employers are obligated to investigate when they know or have reason to believe that an employee is being subjected to discrimination, harassment or other unlawful conduct in the workplace.
- Start investigations quickly. Complaints that the organization ignored the complaint or failed to take the allegations seriously can result if the employer waits too long to initiate an investigation.
- Conduct an investigation without bias. Investigating using interrogation methods versus interviewing techniques results in ill will and risks the perception of bias. Using respectful interviewing strategies, even in the face of suspicion of deception, allows people to have a full opportunity to respond to properly posed questions without feeling like they are being subjected to cross-examination.
- Use proper methods to ensure procedural fairness. Failing to provide a fair process can backfire quickly. All procedures should be seen as fair. For example, not providing the respondent with the accusation doesn’t allow him or her to effectively respond to accusations (MacKenzie & Jeffery, 2016).
- Keep all information confidential. Neglecting to defend witness identities or the privacy of the data could result in a claim of retaliation by any witness who later suffers adverse consequences following the investigation.
- Engage appropriately with the union. These are opportunities to enhance your relationship with labour and following labour agreements and involving union personnel can be helpful to the outcome of the investigation.
- Use and enforce a policy against retaliation. Employers should ensure everybody associated with an investigation understands that the organization will not tolerate any adverse action taken against anyone who makes a good-faith complaint or participates as a witness and that it will take disciplinary action against anyone who engages in retaliation. Retaliation is increasingly an issue facing employers. In the USA, the Equal Employment Opportunity Commission (EEOC) reports that retaliation claims have drastically increased from 1997 to 2017 (https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm).
- Interview all witnesses with knowledge of the facts. All witnesses with potential information, including witnessing of the alleged harassment and people with whom the complainant has shared the allegations prior to the complaint, should be interviewed. Not only does this assist with bolstering credibility determination and strength of factual evidence but avoids loss of credibility associated with the label of a “sham investigation” (Wendel, 2018).
- Access and review all relevant records and concrete evidence. In efforts to investigate completely and without bias all information should be examined (e.g., cell phone records, email, texts).
- Use appropriate investigators. More and more investigators are facing issues of complexity (e.g., mental illness in the workplace) associated with investigations. Investigators should be well trained, engage in continuing education, and have content knowledge enough to understand the issues and nuances of the situation. Using internal HR investigators can be called for at times, but on other occasions, external, licensed investigators should be used. Moreover, it often is assumed that any person can investigate, however, investigators need to be licensed in their appropriate provincial jurisdiction. Employers hiring external investigators should comply with legislation.
- Ensure pre-investigation agreements concerning the scope, mandate and investigative strategy between investigators and employers. Pre-investigation conversations and agreements between the employer and the investigator about the purpose and directives of the investigation and its strategy are essential for a high-quality investigation. This protects all concerned against both ineffective investigations and project “scope-creep” that may be inappropriate and not contain costs.
- Make conclusive findings. Investigators must make findings of fact based on a preponderance of the evidence even when the evidence is disputed. The investigator needs to make credibility determinations in the absence of direct evidence of wrongdoing to support the conclusions of the investigation.
- Require the use of comprehensive reports. The investigation report must be a stand-alone document that summarizes the complaint, the laws or policies that the allegations pertain to, the investigative procedure, a credibility analysis (if required), the analysis, a summary, and recommendations (if required).
- Use effective post-investigation strategies to resolve conflicted work units. Often the alleged harassment is surrounded with workplace conflict and interventions are important to help heal the workplace, post-investigation. In addition, investigations are stress-inducing for all concerned, including work team members. Using organizational development (OD) experts, mediators and conflict resolution experts can be effective to allow the workgroup or team to return to or exceed pre-complaint status (Acton and Gilbert, 2009).
Acton, R. & Gilbert, M. (2009). The Aftermath of Workplace Bullying and Harassment: How to Restore Balance in a Poisoned Work Environment. A paper presented at the Western Canada Labour Relations Conference, Vancouver, BC.
MacKenzie, J & Jeffrey, M. (2016) Update: Workplace Investigations in Canada. Association of Workplace Investigators Journal, Vol 7, No. 2. Pages 1, 4-10.
Wendel, C. (2018). Sham investigation results in $75,000 aggravated damages award against employer. In International Law Office, May 22. Taken https://bit.ly/2w6BlAS)