This is the third of a three-part discussion with Jon Vegosen. In the earlier parts, we discussed Jon’s advice for preventing harassment, conducting harassment investigations and evaluating harassment claims.
Panter: You've talked about having a very low tolerance for a harasser and you've talked about a strong policy of not retaliating against employees who report a problem. I'm wondering, is there a consequence when someone who has made a complaint, which after a full investigation, is determined to be without merit?
I believe you are asking, “What if somebody fabricates a situation and says awful things about a fellow employee that are utterly false? What recourse does an employer have against that employee?
If you take adverse action against an employee who has reported harassment, you could be guilty of retaliation. You need to be able to establish with compelling evidence that the employee was intentionally and maliciously concocting a harassment claim for an ulterior motive, rather than to eradicate harassment. The fabrication could be to extract money, to exact revenge, or to try to avoid a warranted poor performance review or discipline.
Panter: What’s a win-win outcome when an employee reports harassment?
Vegosen: I think a win-win outcome is when inappropriate behavior is put to a stop and the perpetrator learns and grows from the experience.
Panter: Can give you an example of a win-win?
Vegosen: Sure. Suppose a female employee named Jane claims that her co-worker Gary sends her off-color e-mails, tells dirty jokes and makes remarks of a sexual nature to her and other employees. She says that Gary makes comments about her appearance and her clothes and that he has said things like “You’re so hot,” and “You turn me on.” Jane also says that Gary has also told her that she should be wearing shorter skirts and lower cut blouses. Jane reports that she doesn’t like Gary’s behavior and that she has told him to stop.
Suppose that, during the investigation, Gary says, “Look, I don’t want to sleep with Jane or even go out with her. I’ve just been kidding around with her like I do some of the other women in the department. They don’t have a problem with it, and they kid around with me, too. We’re all just friends having a good time and sharing a few good jokes. It’s all perfectly harmless. I’ve never touched Jane. I’ve never hurt her. I just can’t believe that this is really a problem for her. As for her telling me to stop, all that she’s said is that she doesn’t think I’m very funny.”
During the course of the investigation, there could be a teaching opportunity. For example, the investigator might say to Gary, “You may believe that are not doing anything to offend Jane or anyone else. But you have not been listening to Jane. When Jane says that she doesn’t think you are very funny, you have failed to understand that she doesn’t appreciate your comments. Moreover, you have a misguided idea about what sexual harassment is. It is not just trying to date someone or sleeping with someone. Sexual harassment can include telling inappropriate jokes and remarks of a sexual nature. Even if you mean no harm, you have got to stop having these kinds of offensive communications.
Panter: What if Gary retorts by saying, “But the other women like it. They kid back with me, and you should hear some of the things they say.”
Vegosen: The investigator can enlighten Gary and help him see that his thinking is misguided.
Vegosen: By saying something like, “First, you cannot really be sure that the other women like your communications. They may be just as offended as Jane, but they may not have the courage to speak up as she has. Second, even if they don’t mind the e-mails or the comments, Jane does, and we must be sensitive to her wishes and put ourselves in her shoes. Communications of a sexual nature are inappropriate in the workplace, and you have to stop making them.”
If the process works well, Gary is going to have an ‘a-ha moment’ and say something, “Gee, I didn't realize that. Do you think I should apologize to Jane?”
Panter: If Gary says that, what should happen next?
Vegosen: The investigator should say, “Perhaps, but first let me first confer with Jane.”
Panter: Then what?
Vegosen: The investigator should meet with Jane to explain the results of her investigation. During the course of that discussion, the investigator might say, “Gary felt badly about this matter, and he asked me if he should apologize to you. I wanted to speak with you first, because I want to be sure that you wouldn’t be uncomfortable if Gary spoke with you.”
Suppose Jane responds, “No, I wouldn’t be uncomfortable; it might help clear the air. In fact, I’d like to meet with Gary alone.”
This would be a win-win outcome. Jane has put a stop to Gary’s offensive behavior by speaking up and taking advantage of the complaint process of her employer’s anti-harassment policy. Gary has learned a valuable lesson and will change his ways. Moreover, if Gary sees other employees saying the kind of inappropriate things he used to say, he may admonish them to knock it off. That's not just a win-win for Jane and Gary. That is improving the employer’s culture for the benefit and safety of all employees.
Panter: Is there anything else you want to say?
Vegosen: Yes. Our country has had what I thought were going to be transformative moments with respect to harassment. These moments included Anita Hill’s coming forward about Clarence Thomas. They also included brave women in the late 1990s and early 2000s who tried to expose and hold politicians and other powerful men accountable for the horrible way those men mistreated them in connection with the workplace. Unfortunately, as the #MeToo movement has demonstrated, those transformative moments were illusory. I think this time, however, will be different. I believe we can and will have meaningful, positive, and lasting change. I sense that many more workplaces will become respectful and safe places for their employees. Having said that, we must remain vigilant. We must continue to take the appropriate steps to instill respect and trust in the workplace and adopt and honor policies and practices designed to prevent sexual and other harassment.