Fair & Neutral
The recent flood of sexual harassment allegations in the United States, from Hollywood to Capitol Hill to New York City, has given people around the world new confidence to publicly denounce sexual harassment and other types of misconduct.
One powerful example is the Twitter hashtag, #MeToo, which has now been used by more than 1.7 million people in 85 countries to speak out and name their harassers. The allegations have resulted in tangible change: in the past several months dozens of public figures, accused of behaviors ranging from inappropriate harassment to sexual assault, have been fired or forced to resign from high-profile positions.
This remarkable spike in firings is also an extension of a longer-term development. Over the past five years, 5.3 percent of CEOs globally have been forcibly removed due to ethical lapses, including harassment, according to a PricewaterhouseCoopers study. In the United States, that's a 102 percent increase from the previous five years. And during last year alone—before the #MeToo movement—harassment cost U.S. companies more than $160 million in U.S. Equal Employment Opportunity Commission (EEOC) settlements, an all-time high.
Some say these unprecedented developments represent nothing short of a social revolution, one that will have serious ramifications for employers. After the news of allegations against Hollywood mogul Harvey Weinstein came out, the EEOC saw a fourfold increase in visitors to the sexual harassment section of its website. This trend demonstrates that employers must be prepared for the possibility that harassment complaints within their organizations may increase, and they must have effective policies and procedures for responding and acting on them.
When these accusations come out, many organizations are quick to end established relationships with the person being accused—usually to protect the enterprise and the brand, but also to show support for those reporting the allegations. However, it is important to remember that conducting a competent investigation to uncover the truth is vital. It protects the enterprise and all parties involved, and it will encourage other victims of misconduct to come forward.
This article explores how employers, employees, and those commissioned to investigate allegations of misconduct can develop proactive procedures to ensure that the rights of all parties are equally considered in every investigation. Establishing such informed procedures mitigates the risk of civil action, while demonstrating a commitment to fairness.
Understanding the Offenses
There are generally three classifications of sex-related incidents: harassment, sexual harassment, and sexual assault. The following is a breakdown of how the three are legally defined in the United States.
Harassment. Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA).
According to the EEOC, harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. Harassment becomes unlawful in either of two situations—when enduring the offensive conduct becomes a condition of continued employment, or when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Petty slights, annoyances, and isolated incidents (unless extremely serious) usually do not rise to the level of illegality.
Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws. Similarly, harassment in retaliation against somebody who is opposing employment practices that they reasonably believe discriminate against individuals and violate these laws, is also prohibited.
What constitutes offensive conduct? It often includes, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.
Harassment can occur in a variety of circumstances and settings. The harasser may directly supervise the victim, or he or she may work in a different area of the enterprise. The harasser may also be a vendor, contractor, or agent of the employer. The victim may be a workplace invitee who is not employed with the company. And the victim does not have to be the person harassed; he or she can be anyone affected by the offensive conduct. Finally, it is important to remember that unlawful harassment may occur without economic injury to, or discharge of, the victim.
Sexual harassment. Harassment sometimes escalates to sexual harassment, which includes unwelcome sexual advances, requests for sexual favors, and other types of verbal or physical harassment of a sexual nature.
Sexual harassment is defined as either quid pro quo or hostile environment. According to the EEOC guidelines, quid pro quo harassment occurs when an individual's rejection of or submission to unwanted conduct is used as the basis for employment decisions affecting that individual. Hostile environment harassment occurs when submission to unwelcome sexual conduct is made (either explicitly or implicitly) a term or condition of an individual's employment.
However, the line is often unclear regarding quid pro quo and hostile environment harassment claims. For example, hostile environment harassment may acquire characteristics of quid pro quo harassment if the offending supervisor abuses his or her authority over employment decisions to force the victim to endure or participate in unwanted sexual conduct.
Sexual harassment may culminate in a retaliatory discharge if the victim tells the harasser or employer that he or she will no longer submit to harassment, and is then fired in retaliation for this protest. Under these circumstances, it is appropriate to conclude that both harassment and retaliation in violation of U.S. federal law have occurred, according to the EEOC.
Sexual assaults. Sexual harassment can sometimes turn into a sex crime. These crimes can range from rape and battery to other criminal offenses, and they call for law enforcement investigation and potential criminal prosecution. Too often, employers and their investigative teams fail to recognize that the victim is reporting a crime, not just work-related harassment.
Sexual harassers and offenders frequently demonstrate certain patterns of misconduct. Perpetrators often leverage their power and control over the victims, especially if the victim is an employee. In fact, some offenders carefully seek victims they believe to be vulnerable, who have too much to lose to report inappropriate behavior.
In these cases, the perpetrator may use intimidation tactics to demonstrate control over the victim's position with the enterprise. Moreover, he or she may engage in emotional abuse, especially if the victim feels trapped because he or she needs the job.
A major warning sign is an attempt to isolate the victim. This may start when the one with the power communicates a desire to mentor and help the intended target. Then, the mentoring may progress so that moments of emotional intimacy are created. This can make the victims feel as if they voluntarily put themselves in the situation by sharing personal experiences. Moreover, if the victim shares some intimate secrets in these conversations, the perpetrator may later use them for emotional blackmail, to secure the victim's silence. Sometimes, the victim discusses personal relationships, which may lead to sexual revelations. Once the hook is set, the harasser can make the victim feel complicit in an inappropriate workplace emotional or physical affair, but that does not minimize the seriousness of the harasser's behavior.
If confronted, offenders often take pains to minimize questionable conduct. They may say they were only joking or blame the victim (or others) for the offensive behavior. They will usually deny any wrongdoing during initial interviews, because they know it is their word versus the word of a powerless victim. They may posture their power to further intimidate the victim: "I've been with the company for years and am well-respected. No one will believe you!"
And in some cases, offenders will use their position of authority and apply economic pressure. Executives often have the power to promote, demote, or sabotage a subordinate's career path. For abusers, these can be powerful tools of oppression to wield, because victims often feel that no one will believe them, and they cannot afford to lose earning power.
Creating and conducting a neutral and fair investigation is critical to the successful resolution of harassment complaints, but employers must be careful.
As a framework, it is important for organizations to establish investigation-related policies, procedures, and an enterprisewide training program, and to maintain a culture that encourages victims to report misconduct.
Most enterprises in these situations turn to outside experts, especially when working with legal counsel. Here, experience is crucial; skilled investigators who have years of experience conducting sensitive investigations of sexual misconduct are valuable assets. Too often, inexperienced investigators leave the employer with no evidence and a "he said, she said" inconclusive finding. By keeping some important investigative steps in mind, security professionals can maximize the likelihood of reaching a conclusive investigative result.
First, do not discount any reports of harassment or misconduct. Often victims will hint about less offensive conduct to "test the waters." In these cases, the victim may want to know that you care and will believe him or her before they disclose the full seriousness of the conduct.
Of course, this does not mean everyone reporting misconduct is telling the truth, or the whole truth. In some instances, accusers may use claims as a preemptive measure to avoid being disciplined or discharged, because they have been forewarned that their performance or conduct has not met expectations. In these situations, the supervisor should be accompanied by an HR representative or other neutral supervisor in disciplinary meetings.
Similarly, a witness should be present when the accuser is interviewed. To help understand the accuser's version of events, security managers should ask questions that help clarify encounters, but should avoid leading questions. Never blame the victim for failing to report the matter earlier.
Sometimes, counsel may request that the interviews be video recorded with the consent of those being interviewed. Video recording interviews is a good way to memorialize important statements, but you must be prepared to meet resistance to this request. In case of such resistance, you may explain that video recording is standard procedure, and that it avoids misunderstandings about what was said and helps properly document any remedial actions required by law.
Often, the victim begins the conversation with the statement, "Can I confide in you about a problem?" However, security managers can never commit to secrecy, because they may be compelled to report what they are told. So, the answer must be on point, such as, "Mary, you clearly came to me because you know I care. Tell me what's on your mind and I'll tell you what the next steps are that I can take."
In interviewing the victim, one of the most critical questions that is often overlooked is, "Whom have you confided in about this matter?" More often than not, victims of sexual misconduct share with trusted confidants. So, ask victims what they revealed, and when they shared the information. This will provide important witnesses who can help corroborate the victim's integrity. Be careful about immediately believing reports of misconduct that occurred years ago without corroborative testimony or evidence. It does not mean the accuser is being untruthful, but time diminishes evidence and memories.
Interviewing the Accused
Interviewing the accused is another important step. Too often the accused is interviewed too early in the investigation, before all circumstances are known. Another common misstep is asking closed-ended questions that can make it easier to deny the allegations, such as, "Did you touch Mary in your office last week?"
Questions that are open-ended but targeted are critical to helping determine the truth, and developing them in advance can help determine a successful outcome.
During the process, it is imperative that the accused and accuser be separated to avoid claims of retaliation. Communicate clearly to the accused that he or she is not to speak to the accuser, or engage in any behavior that may be interpreted as unlawful retaliation. If the accuser is a direct report of the accused, the latter should be transferred. Transferring the accuser to another manager, absent written consent by the victim to be reassigned, can result in a claim of retaliation.
Preserving evidence is vital to the investigation. Emails, text messages, voice mails, work schedules, diaries, and other evidence must be properly documented and preserved. Practicing this consistently is often the key to uncovering evidence that proves or disproves the allegations.
Finally, remember that documentation is the investigator's salvation. Every step, every interview, and every finding should be clearly documented. The investigation must be fair and neutral to all parties. Decisionmakers will draw conclusions based on the investigative findings; the investigator's role is to assemble the facts, so they can fully inform the conclusions.
The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, or loss of wages. If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that it reasonably tried to prevent and promptly correct the harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
The employer will be liable for harassment by nonsupervisory employees or nonemployees over whom it has control (for example, independent contractors or customers on the premises) if it knew, or should have known, about the harassment and failed to take prompt and appropriate corrective action.
When investigating allegations of harassment, the EEOC looks at the entire record, including the nature of the conduct and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis.
Prevention is Key
Prevention is the best tool to mitigate harassment in the workplace. Establish clear anti-harassment policies and procedures, provide training at all levels, and take immediate and appropriate action when an employee complains. Clearly communicate to employees that unwelcome harassing and sexual misconduct will not be tolerated. In addition, employees should be encouraged to both inform the harasser directly that the conduct is unwelcome and must stop, and report harassment to management at an early stage to prevent its escalation.
Employers should strive to create an environment and a work culture in which employees feel free to raise concerns and are confident that those concerns will be addressed. The result will be a positive workplace where all personnel are valued.
A Rush to Judgment
As seen in recent events, employers are often quick to distance themselves from the accused prior to any investigation. This response hurts the enterprise and brand, because it sends a message of a rush to judgment, or damage control. The first public response, if any, is to communicate that the company takes all allegations seriously, conducts a thorough investigation, and then takes effective remedial steps.
The EEOC does not demand termination, but it does require that companies take effective remedial steps. Termination may be warranted, but the investigation will determine the ultimate disciplinary measures. Ask the accuser what he or she thinks should happen to the perpetrator. Listening to this proposed solution often mitigates the risk of civil claims, because the accuser was part of the investigation, apprised of the findings, and involved in determining the appropriate remedial steps.
If your organization has not equipped itself to perform a thorough and fair investigation, it may decide instead on a hasty termination, or an immediate distancing from the accused. This is a mistake. If made, the next time you get to hear a response from the accused may be in a deposition in a costly and highly public civil lawsuit. Or worse, in a criminal court.
Questioning the Accused
Here are some examples of open-ended questions, along with warning flags that can lead an investigator into a more useful inquiry:
What does Mary know about you personally?
The accused shares intimate details that superiors have little reason to know about their employees.
The accused blames the employee for wanting to meet alone.
Why should we not believe Mary?
The accused may come in armed with reasons she cannot be believed, even though previous evaluations about Mary have been stellar.
The accused may use rank, length of service, and position as reasons to believe him or her, instead of answering the question directly.
How many times have you met with Mary alone in the past six months?
The accused makes excuses for meeting with the employee alone.
The accused blames the employee for wanting to meet alone.
The accused claims to have a bad memory and can't recall how many times he or she has met with the employee alone, much less the context and content of such meetings.
Assume a supervisor apologizes, gets help, and pays Mary for counseling. What would you like to see a company do?
The accused often uses this question to agree that these steps should be taken; which is generally a tacit admission that he or she engaged in the behavior.
The accused does not believe the supervisor should be harshly punished.
What did Mary share with you about her life?
The accused shares intimate details that superiors have little reason to know about their employees.
Who should we interview about Mary and what will they say?
The accused attacks Mary by listing all the reasons she cannot be believed, while being unable to name potential witnesses. He or she may name trusted colleagues who can comment only about his or her performance and who have little information about Mary.
What do you believe Mary has said about you?
The accused reveals personal or intimate information.
The response of the accused mirrors the statement that the accuser provided about the misconduct.
Tell me everything you know about Mary.
The accused quickly tells you information designed to discredit the victim that has never been reported or documented.
The accused knows too much about Mary's personal life.
Assume we believe Mary, what do you think should happen?
Often, a perpetrator seeks mercy or a second chance.
The accused personalizes the outcome to minimize the chances of being dismissed or publicly ridiculed.
When we interview past and present employees, how many will say that you talked about private or sexual matters?
Instead of an immediate and clear denial, the accused will have difficulty remembering.
The accused attempts to throw other employees under the proverbial bus, although no problems were previously reported.
Steven C. Millwee, CPP, is the founder, president, and CEO of SecurTest, Inc., a background screening and investigative consulting firm. Millwee was the 2002 president of ASIS International. He is a frequent expert witness in sexual harassment cases, and is the author of several harassment and sexual assault biographical questionnaires for use in investigations.