Sexual Harassment, Quirky Question # 4

Quirky Question # 4:

I am an HR Representative.  One of my duties is to take complaints regarding workplace discrimination, including sexual harassment. One of our female employees recently complained to me that she feels as though she is being sexually harassed by one of our top salesmen.  (He is not her supervisor, but she does work on the team that supports sales after they have been made, so he could provide some feedback to her superiors on her performance.)

When she told me about the situation, she was somewhat vague.  She also informed me that she will “handle it,” and does not want me to take any action on her behalf.  She says that she simply wanted me to know “what’s going on.”

I’ve honored her request that have not done anything in the several weeks since she made her report.  I’d like to know what’s really “going on” but I’m trying not to intrude.  Do you have any guidance for me?

Dorsey’s Analysis:

Your fact pattern raises several issues that cause me concern.
First, you work in Human Resources.  This gives you a license to “intrude.”  Indeed, you have an obligation to investigate when necessary.  Here, it’s necessary.

Second, you cannot honor the employee’s request that you do nothing.  Once you have notice of a potential problem, you need to take action.  At a minimum, you need to investigate the situation by speaking directly with the complaining party.  Your characterization that her complaint was “somewhat vague” is not good enough.  You need to understand the behaviors that have led her to conclude she is being harassed.  You may or may not agree with her that the conduct is offensive or problematic, but you need to find out what the conduct is.  It’s possible that she will be perturbed that you have initiated an investigation.  That’s her problem, not yours.  You need to explain to her that the Company is obligated to investigate when alerted to a problem.

Third, you should make an effort to understand whether her reticence to have you take action is linked in any way to a fear of retaliation.  Although you pointed out that the alleged harasser is not her supervisor, you also suggested that he could have some impact on the evaluation of her performance.  One of your responsibilities will be to ensure that this does not occur.

Fourth, following your interview with the complainant, you need to interview the alleged harasser.  He may corroborate the allegations, deny them, or provide you additional information that assists you to evaluate the legitimacy of the complaint.  If he reacts adversely, you should remind him that your company does not tolerate retaliation of any kind, and that the company will monitor his conduct carefully to ensure that no retaliation occurs.  There are various other components of an effective investigation that are beyond the scope of this response.

In general, when considering the “please don’t investigate” requests, consider the following scenario.  Imagine that you receive a complaint accompanied by the request that you do nothing.  Assume that you honor that request.  Assume further that you hear nothing further about this situation, but that six months later, another employee complains to you about sexual harassment by the same individual.

Let’s complicate the matter further by assuming that the second complaint (by a second employee) involves egregious, assaultive behavior that ultimately leads to a lawsuit.  You will be deposed (i.e., you will be compelled to answer questions, under oath, and your testimony will be transcribed).  You will be asked when you first learned of any problems regarding the employee accused of the sexual assault.  You will have to state that you learned of potential problems in connection with the first employee’s complaint.  You then will be asked what action you took in the ensuing six months to ascertain what had happened and to ensure that no other employees were victimized.  Under the fact pattern you described, your response to that question will be “Nothing.”  That response is not adequate.  You may as well visit your CFO following your deposition and inform him that he will need to get out the company’s checkbook.  There is also a risk that you will be added as a defendant to the litigation under a negligence theory.  In short, you need to investigate once you have been apprised of a potential sexual harassment problem.

Readers’ Responses:

Response #  1:  As an HR practitioner, I have been here before. So often an employee confides in you like a friend and it’s important to draw the line and maintain your business role. In this instance you have to remember that your first obligation is to your company, and as such, you have to find out more information on her concerns.

You must look into this further, as the employee has really officially put you, as the company representative, on notice. What I suggest is that you let her know you must, as part of your job, find out more from her on this situation, as much detail as you can. You are not intruding. You can reassure her that your role is to strive for a harassment-free working environment. While you can tell her you will try to maintain her confidence as much as possible you simply cannot promise complete confidentiality as you never know which way these situations will go.

And, keep an open mind, as you may be surprised in what you learn. Once you have her full information, I recommend working with your legal counsel and your superior in the next steps in investigating this situation further. Best of luck to you in this process!

Response # 2:  What do you do if the employee reports that she is being “harassed,” but then walks out and refuses to speak to you? Are you still obligated to conduct the investigation, when the employee is not cooperating?

How about an incident when they quit? Are you still on notice and must you do something? In my view, you should at least attempt to investigate and you should document your efforts.

However, what do you do about the practical challenge of conducting an investigation when the complainant is refusing to cooperate?  In California, where I practice, there was a case against CBS, in which the complainant refused to cooperate with the investigation.  The court allowed the company to use the complainant’s lack of cooperation as a defense to her later claim of harassment.

As an HR practice, however, there are risks associated with accepting an employee’s refusal to participate in a sexual harassment investigation.  You should at least make an effort to obtain more facts from the complaining employee.

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

You may also like...