I have recommended on this blog and in harassment training that “operations” people (in other words, people who aren’t in Human Resources or lawyers) avoid the temptation to investigate workplace harassment complaints on their own.
A commenter asked me last week why I said this. I thanked her for giving me the inspiration for a blog post.
Believe me, I do not think operations people aren’t smart enough for the job. They’re plenty smart.
The problem is that they are normal.
Normal people keep the company running. They know about a lot of important things — how to sell, how to make cool stuff that we want to buy, how to tell whether the company is making money or losing it and what to do about it — and they have common sense, which has served them well in their personal and work lives.
Unfortunately, that is not the same as knowing what employment laws require you to do.
Normal people typically don’t know all the ins and outs of what an employer has to do to have a legally sound investigation. They may not even know how to do an investigation. They can’t be bothered with technicalities or “jumping through hoops.” As a result, we see a lot of “problem” investigations when they’re not overseen by a Human Resources representative or an attorney. And problem investigations often result in charges, lawsuits, and big settlements.
Here are a five ways a “normal” supervisor or manager can hurt an employer in a harassment case:
No. 1: Overfamiliarity. If a normal person knows two parties to a dispute, she takes the small mental leap to assuming she already knows what really happened based on her past experience. Her assumptions are often (usually? always?) correct. But her HR representative or lawyer would tell her that this normal mental shortcut can lead to a shoddy investigation — at least, it will look shoddy to the plaintiff’s lawyer or government investigator who doesn’t have the benefit of her experience.
No. 2: Shielding bystanders. When Lula Mae complains for the eight millionth time that she’s being “harassed” at work, and that Joey, Pete, Marla, and Shonda all saw it, the normal person is going to tune Lula Mae out. Here she goes again. I’m not going to bother poor Joey, Pete, Marla, and Shonda with this. That makes perfect sense, right? Well, no. Your HR representative or lawyer will tell you that a plaintiff’s lawyer, the EEOC, or a jury (or all three) may sock it to your company by failing to follow all leads provided by Lula Mae.
No. 3: The “group hug.” Oh, this “normal” solution to a harassment complaint makes so much sense, doesn’t it! Let’s get the accuser and the accused together in a room, and I’ll be the “mediator,” and we’ll hash this thing out, shake hands, and be friends again. Your HR rep or lawyer will tell you that, under the law, this very logical solution is often considered to be more “harassment” of the accusing employee.
No. 4: No gossip! Chloe comes to you and reports that she thinks her co-worker, Jayson, is being sexually harassed. The normal person’s response? Well, tell Jayson to come talk to me himself if he has a problem. After all, the normal person does not want to give credit to rumors or gossip. HR/lawyer response: Because you’re a supervisor or manager, the company is now “legally” on notice of the harassment complaint, so if Jayson is uncomfortable coming to you and you do nothing unless he does (which means you do nothing), then your company could be looking at some major legal exposure.
No. 5: Not my jurisdiction! Harold has a crush on Doris, who is not interested. Harold becomes obsessed with Doris, and starts leaving voice mail messages for her at night, sending her unwanted texts, driving slowly past her house, and generally creeping her out. But in the workplace, he is a perfect gentleman. The normal person who hears about this situation will think that the company can’t do anything about it because it’s all occurring outside the workplace and after hours. HR/lawyer response: The law says you can do something about Harold’s behavior as his employer. You can tell him to quit it, or else. (And document, please.) If he doesn’t quit, you can fire him. If he keeps doing it after you’ve fired him, you can direct Doris to the police and cooperate in the investigation.
BONUS: And, speaking of documentation . . . Normal people aren’t used to documenting what they do. If they are forced to document, they will write down as little as they can to get it over with. They will summarize and make “conclusory” statements. (E.g., “Ignatius is inappropriate,” instead of, “Ignatius shoved Zander into the broom closet and began trying to make out with him against his will.”) “Normal person” documentation can be fatal to a company trying to defend itself in a lawsuit.
So, now you know why I don’t recommend that operations people conduct harassment investigations. Instead, promptly report the complaint to your Human Resources representative (or in-house counsel, if you have it), and let them direct the investigation. If they ask you for help, then by all means help as directed, but let HR or the lawyers be in charge.
And you can go back to being your wonderful, normal self.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.
