He Said, She Said: What Do You Do?

It can be unfortunate to imagine a sexual harassment complaint happening in your workplace. While you hope your employees are never put in that position, it is vital that you are prepared to conduct a prompt investigation and come to a decision, which can often come down to determining the credibility of those involved. Particularly in small companies, investigations can produce a tidal wave of disruption — employees are distracted, rumors fly, and productivity falls. While you do your best to hire well and create a culture where sexual harassment is unlikely, ensuring a speedy investigation and solid resolution can help employees to feel more comfortable and ensure your organization’s policies and procedures comply with federal, state, and local laws.

Before a complaint is every even filed, both you and your employees should know what to expect. Policy and procedure surrounding the issue of sexual harassment should be clear, available to employees, and effectively protect the accuser from retaliation or punishment. In addition, it is key for management to know what steps should be taken, who will lead the investigation and who will make the final decision. An individual should be assigned to oversee the investigation who can remain unbiased, considering all information available before determining the credibility of an accusation or the guilt of the accused.

When allegations are brought to the attention of management, the first instinct is often to turn to questions like “Did you do this?” “Did they do this to you?” etc. While this may seem immediately helpful, this is not the way to approach the issue. Rather, you should create a space where employees feel comfortable speaking and take a more open approach to questioning. Allow the employees the opportunity to tell their story and establish a time line that will help you to make the final call.  Focus your questioning on the chronology of the events and specific instances that allow you to guide the conversation while leaving room for the employee to tell their story. Questions like this include: “What about the situation made it uncomfortable?” “Who might have seen the interaction?” “What did they say?” “To whom?”

You know your employees, and often an investigation will begin and end with your judgment on the validity of the accusation and whether there is evidence to support it. This starts with the first conversation up to the questioning of the accuser. After evaluating the plausibility of their statements, body language, consistency, etc., if you determine the accusation to be worth further investigation it is time to look at additional evidence. In the world of constant contact with technology, it is rare that we see a situation that is purely he said, she said. Look at e-mails, text messages, previous reviews of both employees, video surveillance, and meet with any potential witnesses. Throughout the investigation it is important to remain unbiased, but it is also important to acknowledge if you feel a party is being dishonest (be it someone directly or indirectly involved). Ultimately, you will have to make a decision and a history of dishonesty or a story that does not quite make sense may be the deciding factor in that decision.

Most frequently, one of the final steps to an investigation will be to sit down with the accused and allow them to tell their side of the story. Similarly to the earlier approach, open the floor to the employee. Make them comfortable and allow them to tell their story, guiding them with questions to ensure that you are able to establish a timeline and gather the needed information. In any investigative situation, particularly in cases of sexual harassment allegations, it is important that every employee involved understand that you expect honesty, and that there will be consequences for deception. It is equally important that employees do not feel threatened. While it is easy for a person accused of sexual harassment to feel threatened, feeling they are judged before they enter the room will make the process more painful for everyone involved and create a toxic work environment overall. No matter the outcome, it is important for employees to feel heard, acknowledged and understood.

After the investigation has run its course and you have evaluated all of the information at your disposal, it is time to make your decision. While it is hoped that there is some significant evidence that can corroborate an employees story one way or another, often times it comes down to your judgment and your ability to determine the credibility of your employees and the validity of their statements. The worst outcome would be to leave the investigation inconclusive; this can create a culture of distrust in the workplace and lead to employees feeling unsafe. No matter the situation, be confident in your ability and the ability of your team to assess the situation and the information that you have gathered; then make a conclusive decision with decisive disciplinary action.

In the end, the foundation of an effective investigation begins with your organization’s policies, culture, and your ability to adequately assess the situation. Create a culture where employees feel heard and supported, back this up with adequate policy and procedure, but when the time comes to make the final judgement call, don’t hesitate to move forward. Take steps to ensure that your employees’ work environment is safe and be prepared for the unlikely event that it is not. Maintain an open mind, approach the investigation with care and without bias, and remember, no matter the outcome, you are acting in the best interests of your employees and your organization.

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