HR as Judge, Jury, Prosecutor and Defender - human resources in sexual harassment investigations

HR Magazine, Oct, 2001 by Jonathan A. Segal

Conducting sexual harassment investigations can lead HR professionals to wear many competing hats.

Harassment investigations are one of the most difficult responsibilities you, as an HR professional, will face-in part because these investigations require you to play a multiplicity of roles. In a very real sense, when you conduct harassment investigations you must wear five very different hats:

Judge. You must decide the scope of the investigation-who will be interviewed, what questions can and can't be asked, how to deal with objections, etc.

Juror. When making decisions, you must apply the guidelines you developed in your role as judge.

Prosecutor. By asking carefully worded questions, you must try to find out if the accused did something wrong (or if the complainant filed a false charge).

Defender. By the same token, you must determine if the complainant was subjected to inappropriate behavior, or if the accused is being subjected to a maliciously filed false charge.

Witness. If the investigation is challenged in court, you may be the witness defending the investigation.

Any HR professional who has had to juggle these roles knows how difficult it can be. To help make your next-or your first-juggling experience less onerous, consider the following tips.

When to Investigate

For starters, you must determine if there is a duty to investigate. Generally, you should investigate harassment complaints when any of the following takes place:

An employee complains to HR. All harassment complaint procedures should offer HR as a point of contact for employees who wish to complain of harassment (sexual or otherwise), unlawful discrimination or retaliation.

An employee complains to a supervisor or manager. There is nothing more frustrating (and depressingly common) than for HR professionals to learn of a harassment complaint for the first time in the middle of an adversarial proceeding-and to know that the proceeding might have been averted had the supervisor or manager who received the complaint reported it to HR immediately.

To reduce the risk of such unwanted events, require supervisors and managers to report all complaints to HR, without exception-even if the complaining employee asks that no investigation be conducted. (See below for more on this point.)

The employer receives an anonymous complaint that can be investigated. Normally, the fact that a complaint is anonymous limits what employers can do. But it does not necessarily relieve them of the responsibility to take action.

Employers should pursue any anonymous allegation that provides enough specific information to make an investigation feasible. For example, an employer should look into a complaint that states "there is sexually explicit material in the locker room to the left of the vending machines."

Pleas Not to Investigate

A more difficult issue is how HR should respond if an employee files a complaint, then requests--perhaps even begs-that nothing be done. This is akin to calling the fire department, then saying "Don't come yet--we're gonna let it burn for a while to see what happens.

Clearly, there are risks to honoring the employee's wishes and avoiding an investigation. When notified of a potential problem, employers generally have a duty to investigate and take corrective action, if appropriate.

However, there also are risks in investigating a complaint against an employee's wishes. For example:

* If employees' wishes are not honored, they may not seek HR's help in the future. A trusting relationship often is the best inhibitor to litigation.

* If decision makers know of an employee's complaint, subsequent decisions will be tainted by this knowledge and employers could be exposed to retaliation charges. However, decision makers can't retaliate in response to a claim if they never knew it existed.

In short, there are risks both to taking action and to avoiding action. Employers must balance these risks by practicing risk selection, rather than risk avoidance.

HR professionals should begin by assuming there is a duty to investigate, even if an employee's wishes are to the contrary. However, when deciding whether or not to investigate, consider several factors, including:

* The severity of the alleged wrong.

* The pervasiveness of the alleged wrong.

* Whether individuals other than the complainant may have been affected by the alleged wrong.

* Whether there have been other complaints against the alleged wrongdoer.

* The relative positions in the organization of the complainant and the accused.

If the alleged conduct is neither severe nor pervasive, and if no other factors point to a need to investigate-for example, if there were no prior complaints about the alleged harasser-it may be reasonable (although not risk-free) for HR to honor the employee's wishes and refrain from investigating further.

Under these circumstances, HR should:

* Document in a memo--either to the complainant or to the file--the limited nature of the complaint and other factors that led HR to honor the employee's wishes.