January 19, 2018
As HR consultants who investigate sexual harassment claims, we hear real-life statements such as the following regularly:
The woman began her interview with, “We were traveling on a two-day business trip. On our first night out, he asked me to join him for dinner. I said no, but he said it would be important for our ‘jiving’ together the next day to get to know each other. At dinner, he poured me a glass of wine, and then asked me, ‘Have you ever cheated on your husband?’”
The alleged harasser acknowledged the dinner but couldn’t remember their conversation. When asked why he might have asked her about “cheating,” he said, “It would have just been an effort to make conversation. I can’t help how she took it.”
In situations like these, what can the alleged victim and the alleged harasser expect from a sexual harassment investigation? Here’s what you need to know about the process:
The purpose of the investigation is to gather facts and apply them it to the applicable law or workplace rules. The investigation will focus on the, who, what, when, where, and why of the alleged incident(s), and the investigator will seek to answer these questions:
Remember that investigators dig for facts, not opinions. The ancillary details are important because verification of these details adds veracity to the interviewee’s version of events. In contrast, fuzzy and vague responses cause investigators to wonder if the person is worried that he or she might be pinned down and caught with inconsistencies. This can lead the investigator to question the veracity of the interviewee.
Investigators normally present the alleged harasser with each of the allegations posed by the accuser. This approach narrows down the points of contention and the scope of the investigation. However, investigators may take a different approach based on the facts and circumstances of the matter under investigation. For example, they may gather as much information as possible before talking to the principal parties and witnesses. Knowledge is a powerful tool, and it’s difficult for people to fudge the facts when the investigator has a great deal of information before any conversations start.
If you have either made serious allegations or face them, don’t be surprised if a decision is made to remove you or the other party from your workplace and eliminate your access to the company’s electronic records. The employer takes this step to minimize the risk of problem encounters between the parties, but also to support the integrity of the investigation by protecting documentary evidence and reducing the potential for influence of potential witnesses.
If you’re the alleged harasser, you may wonder if you need an attorney. The answer is that your own attorney protects you, while the company attorney protects your employer. Do you need one? If your and the employer’s interests diverge, yes.
Whether you’re the alleged harasser or the individual who’s brought the allegations, tell the truth. Some alleged harassers deny everything, thinking this keeps them safe. But if they have done something wrong, denial places them at greater risk because being untruthful with the employer’s investigator could provide a separate basis for disciplinary action.
Let’s assume you’ve made advances to a subordinate, thinking she would welcome them. Once you know she doesn’t, you regret making them. You’ve also made comments to co-workers that in hindsight you realize were inappropriate. You won’t repeat this mistake.
If tell the investigator the truth, he or she will likely tell your CEO you made mistakes you regret and won’t repeat. The ultimate goal of sex harassment legislation is to make the workplace right, and the immediate goal is that the improper behavior be recognized and corrected.
While egregious behavior merits severe punishment, an alleged harasser who has committed lesser offenses and now realizes his or her behavior was wrong, apologizes for it, and vows never to do it again may be given a written reprimand or a three-day suspension.
Contrast that with the alleged harasser who denies he or she did anything inappropriate, while the evidence, including interviews with others and documentation such as texts or emails, shows otherwise. In this case, you leave the CEO no choice but to fire you, based on the suspicion that you either don’t or won’t “get it.” Someone who can’t acknowledge inappropriate behavior is likely to repeat it.
Alleged victims also need to tell the truth. Some embellish their stories, hoping to make a stronger case. The problem: they don’t project authenticity, and their exaggerations undercut everything else they say.
So, what happened to the two individuals in the situation that opened this article? Although the alleged harasser tried to slam the alleged victim by saying he “couldn’t help how she took it,” he realized that his response to the investigator’s question about why he had asked about “cheating” revealed more than he intended. It was not an appropriate topic of conversation to begin with. His ability to project innocence went downhill from there.