In addition to heading up the United States Tennis Association as its Chairman of the Board, President, and CEO, and having such “unpleasant” duties as having to attend every U.S. Open, my friend Jon Vegosen (also co-founder of Funkhouser Vegosen Liebman & Dunn Ltd.) acquired a great deal of experience in advising clients on preventing and investigating sexual and other harassment. Recent events and scandals have cast much more attention on the need for safe and professional working environments.
- Every employer should have a written policy prohibiting sexual and other harassment. “Employers who think they can prevent harassment and avoid claims by not having a written policy are hiding their heads in the sand. Convincing clients of that is a more frequent hurdle than might be expected, especially with smaller businesses.”
- Training. “If you do not educate managers about the importance of preventing harassment and why harassment should not be tolerated, then you are doing your employees and your organization a disservice.”
- Investigation. “Just having a policy doesn’t cut it. If a manager doesn’t investigate promptly, objectively and thoroughly, it’s as bad as not having a policy at all. Employers need to understand what to do, how to investigate and what steps to take, including how to appropriately document the investigation.”
- When an issue arises. “It takes a lot of courage for someone to approach an employer and say, ‘I’m being sexually harassed.’ Prior to #MeToo and Time’s Up, many employees would not come forward for fear of retaliation and shame, even though the shame was unwarranted.
“This is changing. There are some critical actions required when investigating a harassment complaint. The first is to behave compassionately yet professionally. Display empathy in order to support the employee. Empathy can also encourage the employee to share information.
“Second, you need to find out what happened. Ask open-ended questions to understand what occurred.
“Third, be very careful not to pass judgment. Thinking or saying things like, ‘Well, if you weren’t so flirtatious, this wouldn’t have been going on’ is not your role.”
- Investigation. “Next, verify the credibility of the people you are interviewing, just like you would in any other investigation. For example, an employee might claim, ‘At 8 a.m. on March 2, Jim cornered me in the lounge and started grabbing me.’
“Part of your job is to verify whether these allegations are true. Maybe there are corroborating witnesses. Perhaps time records show that Jim was somewhere else at the time in question. Or maybe the employee was harassed and is simply mistaken about the date and time.
“Investigate discreetly and thoroughly. Unless an incident has become public, don’t broadcast that you are conducting an investigation. By the same token, if the matter has become public, a failure to announce that a thorough investigation is being conducted can be problematic for an employer.
“After the investigation is completed, determine the appropriate response and communicate it to the parties.
“Sometimes, it is a miscommunication or misperception situation. For example, suppose a male has regularly told off-color jokes and some females have laughed at them, which encouraged his behavior even though the female employees — or at least some of them — were offended.
“While the male employee has behaved inappropriately, zero tolerance does not necessarily mean that firing the employee is warranted. Rather, warning the employee and using the situation as an educational opportunity is, at least initially, advisable. Provide the offending employee with training and provide department- or company-wide training. Of course, if the employee doesn’t ‘get it’ and therefore doesn’t change his behavior, more severe consequences would be in order.”
- Challenging situation. “One of the stickier situations I see is when a manager receives a ‘request to do nothing’: The employee complains she is being harassed but she won’t give details, won’t identify the harasser and doesn’t want an investigation or intervention.
“If you are faced with that kind of situation, reinforce that the employer takes harassment seriously and won’t tolerate it. Point out to this employee that if she doesn’t provide more information, not only might she be at risk, but so might her fellow employees. Remind her there will be no retaliation for reporting the harassment. Make her feel comfortable. See if you can politely convince her to share the information with you so that you can conduct a proper investigation.
“If that fails, and it often does, the next thing to do is investigate the best you can. Be careful not to betray the employee’s confidence, otherwise the employee might no longer trust you. Go into the department more often. See what’s going on. Ask how things are going. Maybe something will emerge. Also, republish the employer’s anti-harassment policy and conduct training.”
- Documentation. “In addition, document the situation with a memo, such as, ‘You came to me on such and such a date. You told me that you were being harassed, but you said you weren’t going to tell me who harassed you, or what occurred, and you said you didn’t want me to do anything about the harassment — you just wanted to make me aware. I tried to explain why it was important for you to be more forthcoming, I told you that others could be at risk, I reminded you that we don’t tolerate harassment and that there will be no retaliation against you — but you still would not share any details with me.
“‘I then investigated the best I could. Keeping your confidence, I went into the department, and I asked only general questions about how things are going. Nothing, however, came of those efforts. We have republished our harassment policy and conducted harassment training. In addition, I told you that, if you have any problems again, you should immediately let me know.’
“Then, have the employee sign the memo. It can be a critical piece of evidence if the employee later decides to file a charge with the EEOC or the Department of Human Rights alleging that she has been harassed and that your organization did nothing to stop it.”
- Follow up. “There is one other step you ought to take: Follow up. Check with the complainant a few weeks later and inquire how things are going. If she says, ‘You know, since you had the anti-harassment training, everything is great, I don’t have any more problems,’ send the employee a confirming e-mail that states, ‘I’m so glad everything is going well and that since the anti-harassment training you are not having any harassment issues. Of course, if you do, please let me know right away and we will address them.’
“Now you will not only have solved the problem but also you will have two written pieces of evidence in case the employee files a charge. Like it or not, you have to be proactive and play defense here. You don’t want the employee to be able to take advantage of the situation.
“Of course, your most important goal is to have a safe, professional working environment for all employees. If the complainant isn’t helping you get there by cooperating, you have to get there in a different way and you still need to protect the employer through documentation.”