Investigations are often not necessary in response to harassment and discrimination allegations. But the way you know if they are necessary is by looking at other times when you would normally conduct an investigation. An investigation is a mechanism to protect an accused employee from being unfairly disciplined or fired. It is not a mechanism to protect a complaining employee. Most states have “at-will” employment status, meaning an employer could fire an employee for any reason, unless it is specifically prohibited by law.
If a long-time client of a company complains that a staff person was threatening, for example, often an employer will immediately suspend or fire the staff person without any kind of investigation. The allegation alone is enough to trigger the discipline. The employer may give the employee an opportunity to prove themselves, but the employer will likely not force the client to prove the employee did something wrong.
This is because in the United States, as we have established the law now, there is no right to have a job. A job is something we prove we are capable of doing well, and then we have the privilege of continuing to keep it. That is not necessarily the best way to manage employment structure, and many employers want to provide greater protections for employees for good reason. Unions have also done a lot to give employees better rights and more protections. Increasing job security is a crucial step to reducing harassment and discrimination because, as we talked about previously, insecurity in a job position is likely the number one indicator of whether a man will sexually harass, for example. When employees are afraid of being fired or laid off, discrimination, harassment, abuse, and bullying increase.
Nevertheless, in many companies there is conduct that is tolerated zero times and even an allegation of that conduct triggers discipline. This is because the reputation of engaging in that conduct is so contrary to the values of your business that it is harmful. It could cost licensing or shut down the business. What is that conduct in your business?
Once you have a list of what that conduct is in your business, it should be evenly applied, no matter who the accuser or the respondent is.
You may be asking, “Don’t false allegations happen all the time? How can I have a universal zero tolerance policy when I know people make things up?” False accusations do happen. They happen for every type of misconduct at about the same rate, according to FBI research. There is estimated to be about a two to ten percent rate of false reporting for every type of crime. Much larger is the percentage of unreported misconduct (about seventy-five percent). It is true that if you have zero tolerance for conduct, even allegations of conduct, a false allegation could do damage. It is statistically more likely, though, that if there is an allegation, there are four other unreported incidents of the same conduct.
You may choose not to have zero-tolerance behavior, and that is your choice as a business owner. For some companies and industries it makes more sense to have zero-tolerance behavior than others, and so without knowing the work you do, I can’t have an opinion on it. Creating an inclusive workplace is not about forcing a culture of fake tolerance where no one faces consequences. It is about serving the mission of your company by identifying and openly solving problems. Creating consequences for unacceptable behavior is part of creating an inclusive workplace. You and the people you work with have key insight into what is unacceptable in your workplace. I will say that my opinion in general is that there is always room for correction, reform, forgiveness, and change. For some industries, based on regulations or standards, that is not realistic, though. I have seen business owners struggle with setting clear expectations, and I encourage you to have someone outside of your business help you if this part of the process seems easier said than done.
After you have listed the zero-tolerance conduct, the next step is making a clear list of offenses that could result in separating an employee from the company. If you want lists of some types of conduct that you might want to include, you can look to professional standards of conduct for your industry or even the criminal law in your state.
Do you want discriminatory behavior to be included in that list? If so, do you want words alone to be enough? How severe or pervasive does the language need to be? Does one incident of discriminatory words count as enough to qualify for termination of employment? What if the discriminatory behavior comes from someone in a disadvantaged group (for example, what if a black woman calls a white man in a superior position a “cracker” in a joking tone?). What if she didn’t mean any harm and is very regretful when she finds out it was hurtful? Would you apply that standard equally if the white man made a derogatory comment to the black woman and was regretful about it? There are reasons to make more room and allowances for groups with historically disadvantaged characteristics than those with traditionally advantaged characteristics, and so what I am offering is that deciding your policy (whatever it is) ahead of time, and knowing why you have that policy, will help you evenly apply it.
Discrimination comes in many, many forms, and most of them are invisible. Discrimination includes both punching someone in the face because they have a characteristic that’s different than yours and not hiring them because there’s “just something that doesn’t resonate” with you. It includes both making vulgar jokes that demean another person because of something they can’t change about themselves and it can include talking over them in meetings because in your view they’re not asserting themselves enough.
Harassment, too, comes in many forms, and some are invisible. Harassment can include physical violence and death threats. It can also include subtle, persistent, invasive attention and touching that doesn’t leave bruises.
My point is that if you hold an “investigation” and you determine that the conduct did happen, what are you going to do about it? If it is going to result in a training and a reminder on professionalism standards for the entire staff, why are you waiting for an investigation to do that? If it is going to result in safety protections around the alleged offender for client-safety reasons, why are you going to wait for an investigation to do that? If it is going to result in power-dynamics support for the complainant, why are you going to wait for an investigation to do that? Is an investigation going to convince you that staff does not need retraining, client safety isn’t an issue, and the complaining employee doesn’t need support? That seems unlikely.
Ask yourself how an investigation will help you deal with this in an active, helpful way, not just help with ignoring the conflict. If you ignore it, it will definitely get worse one way or another – usually “worse” looks like losing employees, sometimes it looks like getting sued.
After you have addressed the immediate steps you can take without an investigation, that is the time to decide whether an investigation is necessary. After you have sent a reminder to staff about professionalism and respect; provided support, permissions, and training to the complainant; and created any necessary safety protections around the problem employee, you may decide that you may need to build evidence in order to fire the problem employee for cause. In that case an investigation may help you and not be so offensive to the complainant.
Often an investigation has an unclear result that looks something like, both parties seem to be telling the truth from their perspective and they have very different perspectives. “He thought he was encouraging her”; “She thought he was talking to her like she was a child because she’s a younger woman.” Both could be true at the same time. Is investigating going to help you decide how to intervene in that situation?
I was giving a presentation to a group of lawyers about what I teach, and a very angry gentleman raised his hand and asked, exasperated, “But how does this help me know who is telling the truth?!” If your mission is to make your best evidence-based evaluation of who is telling the truth and what “really” happened, an investigation is necessary, and the traditional tools of evidence-gathering and witness interviews are what you should use. You could even take a course in identifying truthful and lying indicators or hire a polygraph expert. Sometimes, at the end of an investigation, it is possible to feel reasonably confident about what happened. Almost always, though, our own perspective about what happened is influenced by our biases. Each witness’s statement is influenced by that person’s bias. No replication or investigation fact-finding of “what happened” will exactly mirror what actually happened. We see this in the criminal law where, despite the highest level of protection for defendants, people are still wrongly convicted. If I discover the simple solution to investigations and knowing who to believe, I will let you know.
Sometimes, we really don’t believe a person, but it’s because of who that person is, not what that person is saying. The problem is that people who are unreliable in general are also targets for abuse. While I was in school, for example, a classmate accused another classmate of rape. The woman who made the accusation was someone many believed to be at least an incredibly unreliable person, but at worst a pathological liar. Pretty soon though, after her allegation, three more women came forward reporting the same experience with the accused rapist. It became clear that the man who was accused was targeting vulnerable women and drugging them. But some continued to disbelieve one or another of the woman because of her vulnerable characteristic. In this case, the vulnerable characteristic was that she was an unreliable person in other situations. Vulnerable characteristics, even unreliability in one area, do not immediately indicate a lie when it comes to misconduct allegations.
Sometimes, we really don’t believe something happened because it sounds too horrible to think someone we know would do that. When I was working on the resolution process between two-coworkers at a non-profit, the woman accused of harassment was genuinely devastated at the allegation, and I sat with her for about four hours while she cried. She vehemently denied that the man could have experienced anything with her that he could think was harassment or assault. She explained to me that she believed that anyone accused of sexual assault was scum, so she now had to believe she was scum. Once she learned about the specifics of the allegations though, she said she could understand how the man could have had a different perspective than she did, and she still knew she would never have intentionally hurt him. She shifted from vehement denial to more understanding and compassion. Her vision of what he was alleging was, to her, unacceptable from any human. Once she shifted her understanding though, she could see two different, valid perspectives.
When we really don’t believe someone, sometimes we are right and should listen to our intuition. More often, though, it is because of our own unconscious bias. It is because of the movie we are playing in our head about who the accuser is or what the allegations might mean.
Those are opportunities for every business owner to have compassion for herself, and also for her to question what biases might be lurking in her brain that might not be serving her. But understand why you want to know who is right. Some responses need to be automatic when an employee complains. That employee needs support, permission to take care of herself, and even training on how to do that. Depending on the alleged conduct, it’s possible that an investigation is not even necessary because a reminder about professional conduct or all-staff training could be enough to correct the problem behavior. Or the allegation could be so severe that an allegation alone is enough to separate the employee. In the event an investigation is necessary, remember it is not what is going to solve the situation for the complainant. Any punishment for the responding employee is not going to solve things for the complaining employee. An investigation might serve you, and there is nothing wrong with that. It is not a catch-all solution to workplace cultural health problems.
This is a selection from The Inclusive Leader's Guide to Healthy Workplace Culture. For a free copy of the book, visit www.HealthyWorkplaceCulture.com. Or you can purchase online via Amazon.