The claim is in. Now, how to investigate?

As published in The Chicago Daily Law Bulletin

This is the second of a three-part discussion with Jon Vegosen. In Part 1, Jon Vegosen shared tips for investigating a sexual harassment claim. In today’s column we discuss the goal of these investigations.

1. How should those investigating harassment allegations approach the claims? “By having an open mind, honoring the investigation process, and getting to the truth of what happened. It is also important to have the best interest of all parties at heart. That includes not retaliating against the accuser, and not turning the allegations against the accused into a witch hunt. I think one of the toughest roles is that of the Human Resources Director, especially when upper management is accused of harassment. Overall, the HR Director is responsible for promoting and maintaining a professional and safe working environment. When a complaint is made, on the one hand, the HR Director has an obligation to find out what happened. On the other hand, some CEOs may overtly or covertly convey to the HR Director that the Director’s role is to protect upper management and the employer. Therefore, the HR Director may feel conflicted and caught in the middle.
   
   “The employer’s culture is extremely important in how this plays out. Does the CEO simply want management’s proverbial rear end covered? Or, does the CEO want to have a culture that is respectful and professional and one that will not tolerate harassment no matter who is perpetrating it? Because this can be a very difficult situation for HR, some employers, particularly those employers that care about having a bona fide investigation, have an outside third party, such as a law firm, conduct the investigation.”
   
   
2. Getting to the merits of the claim. “It is crucial to determine whether the allegations are true or false. If they are true, you want to figure out what measures are going to address the situation. There are times, however, when you cannot resolve who is telling the truth. 
   
   “Let's say you've got a he said-she said situation, and you cannot tell for sure what happened. Let the parties know that, at this point, the case is too close to call, but reinforce to the parties that the employer is not going to tolerate harassment. In this situation, it is inappropriate to retaliate against the accuser and to punish the accused. Ask the complainant to keep you informed if he has any other problems in the future. Invite the complainant to furnish additional evidence. Caution the accused that you expect her to maintain a high level of professionalism. Again, you may want to reissue your policy and conduct harassment training.”
   
   
3. Best interests of the employer. “Some employers might have a tendency to overreact.  For example, suppose a complaint is filed internally against a manager for alleged harassment that is not verified. In an effort to protect the employer, the employer might discharge the manager, even though there is a lack of evidence. There seems to be a bit of a pendulum swing toward that right now. While this is quite understandable, it is not always the appropriate response. 
   
   “It could be the safest course for an employer because, once an employer is on notice that there might be a problem and the employer doesn't take steps to address it, problems could persist and liability might ensue. Firing the offender might appear to be the safer course, but is it the wisest choice? Suppose the accused is a ten-year manager who has been a model employee, and suppose that the accuser is an underperformer. Under those circumstances, is it fair simply to ax that ten-year manager who has brought value to the organization and behaved impeccably other than one unsubstantiated complaint when there is scant evidence against the manager?”
   
   
4. Are these decision-makers in internal investigations qualified? “It depends on the situation, but overall, if they are acting in good faith and are true to the process, I think many of them are qualified. If they are in HR roles, they should have received training to prepare them for their roles. Of course, the person investigating may not have come across certain kinds of situations. That is one of the reasons management anti-harassment training can be very important. In my anti-harassment workshops, we discuss several scenarios to expose managers to different potential situations. We also conduct mock investigations. In fact, I bring a script to my workshops and have attendees play roles. Then we discuss the dynamics.” 
   
   
5. Is there any review of these decisions?
   
   “A policy or an agreement may provide an avenue for review. Moreover, if an employee does not feel that an employer has been responsive, she or he has the right to file a charge with a government agency like the EEOC or the Human Rights Commission. One place where an employer and an employee can disagree is whether certain conduct constitutes sexual harassment. Under established case law, hostile working environment harassment needs to be severe, blatant, and pervasive to rise to the level of unlawful harassment. As the Court of Appeals for the Seventh Circuit has ruled, if an employee only makes a handful of inappropriate, but infrequent, comments that could be repeated on primetime TV, then they are generally going to be permissible. Of course, if that employee were to threaten or touch the complainant or ask the complainant for sexual favors, that would be a different situation. An employee, however, may have a lower threshold of what she or he will tolerate and demand that someone be fired for a minor offense, such as telling a handful of off-color primetime-like jokes over the course of several months. In that situation, I have seen employers say, ‘Billy’s conduct doesn't rise to the level of sexual harassment from a legal perspective. We do agree that his behavior is less than professional, and we have taken steps to address that. If Billy continues to be unprofessional, we will take more severe action. Thank you for bringing this to our attention.’ If the employee does not agree with the employer’s response, the employee can file a charge. In all likelihood, it would be dismissed because the conduct did not rise to the level of harassment and the employer took reasonable measures to address the behavior.” 

​I still wondered whether HR professionals, taking all comers, could really make these delicate decisions.
 
Jon said, “Let me ask you this. You didn't go to parent school, did you?
 
“Let's say you've got two siblings and one tattles that the other pushed her. As a parent, you're going to try figure out what really happened. Or suppose you're the HR Director and someone comes up and say ‘Jimmy is stealing from the company.’ Jimmy says, ‘No, I'm not.’ There is no video, and there are no witnesses. HR professionals frequently have to make credibility determinations.
 
“I've had situations where I have had to interview several witnesses and make credibility determinations because often it is a case of he said/she said. Sorting through the evidence is very important, especially if there is documentation. Sometimes you have to try and determine who is being candid through things like body language, shifty eyes, inconsistent statements, and lack of corroboration. You come away with an impression about who is telling the truth and who is not.
 
“In short, there are credibility determinations and judgments that have to be made, whether it be in your personal life or at your place of work.”
 
My conversation with Jon Vegosen continues next time, with a discussion of false accusations.