An HR practitioner's perspective: Addressing sexual and other forms of workplace harassment
This is the second in a series of four blog posts about the #metoo movement from the perspective of several Brandman University professors and their respective disciplines.
It’s difficult to escape the unfortunate reality that despite court decisions, regulatory guidance, well-publicized cases and ongoing media attention (21st Century Fox, Uber, and The Weinstein Company), sexual harassment in the workplace remains a serious problem.
Responding to a complaint of sexual (or other forms of prohibited) harassment is one of the most challenging, and most urgent, issues faced by human resources professionals. The situation is often emotional; it is frequently difficult for the individual bringing the complaint forward to even recount the facts of the situation.
The HR professional responsible for receiving the complaint, and for initiating a thorough investigation thereafter, may be personally shocked or disheartened by the information presented. Yet, it is critically important for the investigator to present a neutral, professional demeanor, in order to provide an unbiased environment where factual information can be obtained and then organized. At this stage, only one side of the story has been presented, and important facts are not yet available for review.
Critical investigative steps
A human resources practitioner must be vigilant in applying appropriate investigative practices, which include:
- gathering information from the complaining party
- meeting and questioning the accused offender
- interviewing any witnesses identified by either the complaining party or accused offender
- evaluating the credibility of the statements of both parties and any witnesses
- creating a document summarizing the outcomes of the investigation
- communicating the results of that investigation to appropriate parties, including operating management
- taking appropriate follow-up action
Characteristics of effective investigators
Those responsible for completing the investigation must have not only the necessary professional skills, but the leadership courage to report findings and recommendations that reflect both the facts and the investigator’s best professional judgment.
A high level of personal and professional integrity is critically important, as well as experience in the application of investigative techniques, the ability to work objectively and independently, and a knowledge of relevant employment law. Desired personal characteristics include excellent communication and observational skills, a neutral and objective demeanor, and the ability to pay careful attention to details. The investigator must also be able to proceed quickly, yet thoroughly, through the investigative process, interviewing key parties multiple times if needed in order to resolve any discrepancies in information provided during prior interviews.
Organizations that do not have the scale to have an in-house investigative resource may turn to internal counsel for recommendations, or to external law firms, which frequently have contacts with skilled and experienced workplace investigators. Organizations that would like to build an internal capability to conduct workplace investigations can contact the Association of Workplace Investigators for information about available training programs.
Defining sexual harassment
According to the United States Equal Employment Opportunity Commission (EEOC), sexual harassment is considered as a violation of Section 703 of Title VII of the Civil Rights Act of 1964, as amended:
“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.1
While there are many important words in the above definition, none is more meaningful than the first word – “unwelcome,” which will be a relevant area of inquiry by the investigator.
The values of integrity and respect
Although no organization can fully insulate itself from employees who may engage in unlawful workplace harassment, there are a number of steps that can be taken to create a workplace culture that values both integrity and respect at all levels of the organization.
At Brandman University, we’ve taken a strong position within our Employee Handbook that we will not tolerate workplace harassment, including sexual harassment. Two policies, in particular, clearly state our position:
- Our Policy Prohibiting Harassment commits the University to “providing a work environment that is free of unlawful discrimination and harassment. Multiple forms of unlawful harassment are explicitly prohibited, including sexual harassment, as well as harassment on the basis of “age, race, color, religion, sex (including pregnancy, childbirth, or related medical conditions), gender identity, national origin, ancestry, physical or mental disability, legally-protected medical condition, military or veteran status, marital status, sexual orientation, genetic information, or any other characteristic protected by local, State or Federal law.”
- Our Rules of Conduct policy provides a lengthy list of examples of “behavior, performance or conduct that are not permitted and may result in disciplinary action, up to and including termination.” Included in this list is the violation of Brandman’s “policy against harassment…”
Training is key
One final area should be mentioned: the need to provide training to leaders and non-management employees addressing the importance of preventing workplace harassment, discrimination, retaliation and abusive conduct. Ideally, such training should be given as part of every employee’s orientation experience, and then periodically thereafter, particularly to those in leadership roles. The training should take at least two hours, and be as interactive as possible, with multiple opportunities to assess whether those being trained have absorbed the content presented. HR professionals can provide onsite or online training options.
The heightened awareness of workplace sexual harassment should reinforce the importance of taking steps, both proactively and reactively, to discourage, and ultimately eliminate this behavior. How well HR professionals respond to complaints will send a powerful and positive message that can enhance your organization’s reputational capital, and improve your ability to attract and retain the skills needed to build and maintain a competitive advantage in an environment of increasingly scarce talent.
1 EEOC. Retrieved from https://www.gpo.gov/fdsys/pkg/CFR-2016-title29-vol4/xml/CFR-2016-title29-vol4-part1604.xml on October 31, 2017
Sam Bresler, Ph.D., SPHR, SHRM-SCP, CCP teaches human resources classes in the School of Business and Professional Services at Brandman University.
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