The problem of perceptions: Reasons for outsourcing the sexual harassment investigation

Employment Relations Today Spring 2000 101

The Problem of Perceptions

Jonathan Day is a principalin the practice of Colby, Day,& Day, a human resourcesmanagement consultingfirm. Colby, Day is dedicatedto resolving and preventingemployee relations problemsand creating systems topositively affect anemployer’s performancethrough its people-management practices.They may be contactedvia E-mail [email protected] via their website atwww.colbyday.com. SexualHarassment Investigations(www.harassment.net) is adivision of Colby, Day, &Day.

© 2000 John Wiley & Sons, Inc.

THE PROBLEM OF PERCEPTIONS:REASONS FOR OUTSOURCING THESEXUAL HARASSMENT INVESTIGATION

Jonathan Day

A s an experienced human resources leader, you are a littlestartled and very concerned when a sexual harassmentcomplaint arrives on your desk, but, you are ready to

tackle this complaint as you’ve dealt with so many issues orproblems previously—directly and quickly.

You know that:

• Your staff members, although not specifically trained insexual harassment investigations, know how to get thefacts. You also may decide to conduct the investigationyourself.

• Nationally, the number of sexual harassment cases andamount of awards is growing.

• Your attorney, in-house or external, has good reasons (dis-covery and client/attorney privilege) for not conductingthe investigation.

• A strong investigation may help insulate your employerfrom legal liability.

What you may not have considered is the damage to employeerelations and the legal risk to your employer, or any internalrepresentative conducting an investigation.

CONFLICTING VIEWS OF HRIn 1999, we conducted two anonymous surveys. In our first—

conducted via the Internet—respondents fit one of three catego-ries: (1) in-house HR professional; (2) employment law attorney;and (3) other. We found that management-conducted investiga-tions of employee complaints likely increase employers’ legal liabil-ity (according to the employment law attorneys) and may well

Jonathan Day

102 Spring 2000 Employment Relations Today

damage the employers’ current employee relations climate. Thesurvey results reveal a hidden danger to HR leaders: their blindspot regarding the powerful role of employee perceptions. Thesurvey reveals:

• Only 26 percent of HR professionals saw any danger ofincreased liability resulting from a management-con-ducted/internal investigation. HR typically conducts theinvestigation for management.

• All (100 percent) of the employment law attorneys did see adanger of increased liability resulting from a management-conducted investigation.

A great concern for employers is that employment attorneyopinion of a management-conducted investigation so radicallycontrasts with that of management’s investigators. One clue whythis may be relevant lies in the survey responses of the “other”category. When combined with the attorney and the HR catego-ries, nearly all (92 percent) respondents believe management-conducted investigations are perceived as biased by employees.Perhaps this is why the attorneys say that an increased liabilityexists. Employees are, a priori, suspicious of management’s con-clusions and fairness. Employees perceive management—and itsinvestigators—as biased and not objective. This being the case,they tend to fight or disbelieve the findings, resist internal resolu-tion attempts, and file countercharges—regardless of theinvestigation’s actual integrity.

Obviously there is a wide chasm between the HR professionalsand the attorneys. Human resources professionals, in all likeli-hood, feel that they (personally) are beyond suspicion; theirinvestigations are unbiased and absolutely fair; they play by therules and employees have no legitimate grounds for their percep-tions of bias. We’re confident that that is most often the case. Buta dangerous blind spot may exist for HR professionals: They failto acknowledge the very tangible and real effect of perception onan emotional and highly charged issue such as sexual harassment.The actual integrity of the management-conducted investigationmatters little when employee perceptions are so strong and socontrary to that.

Our second survey was conducted last spring in person withapproximately 500 employees. Over 20 percent of the respondentsreported that they believed that they had “been illegally discrimi-nated against by their current employer in the last two years.”Interestingly, slightly over half of these who felt discriminatedagainst were males. A much greater percentage of employees than

A great concern foremployers is thatemployment attorneyopinion of amanagement-conductedinvestigation soradically contrastswith that ofmanagement’sinvestigators.



we expected have apparently had a negative (and personal)employee-relations experience. This survey, when consideredalong with the first survey, gives significant evidence that work-place satisfaction with and belief in management (and HR man-agement in particular) may be very low indeed.

CASE IN POINT—EMPLOYEE PERCEPTIONSAn actual case illustrates how employee perception may hold

the upper hand over reality in the employee relations arena. Thecase involved a midsized employer and a male supervisor whohad 14 years’ experience with the company, when he was ac-cused of sexual harassment. The HR manager, who had investi-gative responsibility at the company, had “signed off” on asomewhat marginal performance review of this male employeemonths before. The now-accused employee, a lower- to midlevelsupervisor who was popular and had a following in the com-pany, let his feelings be known that the HR manager was out toget him (evidenced by the previous performance appraisal). Theaccused harasser talked about the investigation throughout thecompany and complained that the HR manager was unfair andbiased. The accused argued that having a marginal, but to thispoint, acceptable performance appraisal should be totally sepa-rate from this harassment allegation. He announced that hewould file a countercharge if found guilty by the investigator. Heeven intimated that he might file a charge even before theinvestigation’s conclusion.

Also relevant to the case (in the mind of the accused) was thefact that an employee in human resources (a subordinate of theHR manager) was affiliated with the complainant outside ofwork—church activities and in a volleyball league. The accusedemployee knew about this outside affiliation and announced itas further evidence of human resource department bias. He hadmany other employees believing that the outcome was prede-termined. This set the stage for a dramatic confrontation inwhat essentially was a “he said”/“she said” sexual harassmentsituation. Obviously, the HR manager and the company wouldlose on several fronts, regardless of the outcome of the case orits merits.

Employees quickly became aware of the case because of thesupervisor’s popularity in the company and his semipublicannouncements and allegations of bias. It is common, however,for employees to know more about a sexual harassment chargethan the HR department suspects. Watercooler gossip, off-hours phone calls, and E-mail chat are all fairly active aroundeven a modestly secret allegation. This employee talk was both

The accusedharasser talked aboutthe investigationthroughout thecompany andcomplained that theHR manager wasunfair and biased.

Jonathan Day


orchestrated and naturally occurring. As a result, three factionsof employees had formed in the company.

The first faction was neutral and didn’t know whom to believe.They had a wait-and-see attitude and, though they had heardrumors, decided not to become invested in any point of view. In ouropinion, HR leaders often overestimate the size of this employeegroup.

The second faction believed the complainant and would holdthe HR manager accountable if the supervisor were not foundguilty for not backing down to the pressure of the accused andother employees. This group practically demanded the firing ofthe (alleged) harasser regardless of the facts or the investigativefindings, and they found the alleged harasser’s announcementsunfair and disruptive. The employees in this faction did not reallybelieve HR would come down hard on a management-levelemployee and were also suspicious of HR conducting the investi-gation.

The third faction believed the accused harasser. They saw validityin the accused supervisor’s concerns. They were just waiting for theHR manager to fire him and confirm their belief that there was nojustice, no fairness in the company. These employees were skepticalof management and had come to see HR more as a political policeforce than as a service to all employees and to the company. In thiscase (and in many other cases like it), it was pretty clear that thecompany, neither management nor employees as a whole, could win.Whatever the facts, whatever the outcome of the case based on itsmerits and an impartial internal investigation, the result would bedamaging to the employer because the process itself just wasn’tcredible based on employee perceptions.

In this case, the credibility of management was damaged eventhough the investigation was aboveboard and honest. Two out ofthree employee factions perceived significant employee relationsproblems and would likely further question the fairness of theprocess, the credibility of management, and their own willingnessto remain as employees (or put their full energies toward employergoals).

The members in the neutral faction may also be swayed towardone of the other camps that perceive or expect bias. Many employeesof the company may be more reluctant to establish any contacts withmembers of the HR department. Other employees who may feelharassed in the future will be much more reluctant to lodge anylegitimate complaint of harassment. There will be lingering talk,doubts, and skepticism about the objectivity of the human resourcesdepartment. This is a losing outcome for employees and thecompany.

The first faction wasneutral and didn’tknow whom tobelieve.



EXAMINING MANAGEMENT’S OPTIONSThe fact that management investigated the complaint

wasn’t the problem per se. Management must investigate(or have its representatives investigate) these allegations.The problem was the unforeseen and extremely damagingeffect on the company by employees’ perceptions (true ornot) created by:

• circumstances,• an employee knowing how to defend himself, and• what may be a preexisting or inherent skepticism

among employees.

Employees simply do not believe management is able tohonestly and objectively investigate without bias. Recallthat 92 percent of all survey respondents (including HRprofessionals) said employees perceive a management-con-ducted investigation—any management-conducted investi-gation—as biased. In the case described above, it is not clearwhether management could have prevented the damageonce its investigation started. The company could havechanged the internal investigator to a member of, say, thelegal or risk-management department, but that may havecreated new problems, such as issues with the quality of theinvestigation, problematic reporting relationships, attor-ney representation in court, credibility, and seriousness ofthe investigation in employees’ or the court’s view. Thecompany could also have assigned another respected man-ager in the organization to conduct the investigation, butthat manager might have been used as a target by both sidesin the investigation to make their points. The manager maynot have the training, experience, or credibility to handlethe situation appropriately. Also, he or she may also learnthings during the investigation that might jeopardize his orher ability to interact with certain employees in the future.

One problem with investigations is that you never re-ally know what may turn up until you start. The watch-word is “wariness.” Employers must be extremely cautious.Today, employees are much more inclined to fight backand are more savvy about the law and public relations thanever before. This is understandable, with the recent mediacoverage of highly visible court cases and television showsthat deal with these subjects in great detail and with dra-matic flair. Employees are also much more skeptical ofmanagement today than in the past. The fact that the social

Employees simply donot believemanagement is ableto honestly andobjectively investigatewithout bias.

Jonathan Day


contract between employees and employers has beengreatly diminished only adds to this cynicism. Lawsuitsagainst employers are increasing, and judgments againstemployers are mushrooming.

OUTSOURCING AN INVESTIGATIONThe best way for the management of an organization to deal

with this phenomenon is to acknowledge it and find ways toeffectively manage it. If an organization’s management trulywants the trust of employees, it must be earned. One way to earnthat trust is for management to take its employee complaintsseriously enough to resolve them fairly and constructively. Itrequires, in our opinion, HR leaders acknowledging that theiractions often are in stark contrast to employees’ perceptions.

It helps to look months or years down the road. We believethat if management considered all of the potentially destructiveeffects of even a single sexual harassment case, the decisionwould almost certainly be to outsource its investigation to animpartial, disinterested, and professional third party. This wouldallow the organization to concentrate on maintaining positiveemployee relations.

To secure an investigative firm, look for experience, familiaritywith human resources information systems, organizational dy-namics, ability to build rapport, and credentials such as licenses(in locations where investigators’ licenses are required). Arrangea meeting in which HR, the investigator, and the company’s legalcounsel have an opportunity to discuss the case. Inform theinvestigator about the details of the claim, how to access employeeinformation, how and where to schedule employee interviews,and to whom the investigator should report the findings. Theinvestigator should report to both HR and your legal counselwhen the results may be privileged.

After the investigator has prepared a plan for proceeding, itmay be helpful to call employees to be interviewed and “autho-rize” the interviews. Keep close tabs on the progress—the inves-tigation should be completed very quickly with the factual findingspresented to you and your counsel. A written report from yourinvestigator is necessary. Do not expect your investigator to makea judgement of guilt or innocence for you. Nor should the inves-tigator determine your company’s response. It is up to manage-ment to draw these conclusions after hearing the facts of a swift,thorough, and unbiased investigation.

In this situation, hiring an outside consultant builds trust inmanagement. It shows that management is interested in obtain-ing only a fair and objective assessment of the charges. It is an

If an organization’smanagement trulywants the trust ofemployees, it must beearned.



opportunity for organization managers to show that they can leadtheir people, particularly through such difficult situations as asexual harassment investigation, which can disrupt business op-erations beyond the conclusion of the investigation if it is nothandled properly. ◆

The problem of perceptions: Reasons for outsourcing the sexual harassment investigation

Documents

Transcript of The problem of perceptions: Reasons for outsourcing the sexual harassment investigation