- Posted by Stephen White
- On August 1, 2018
- 0 Comments
- dealing with harassment allegations, harassment, harassment investigation, responding to harassment allegations, workplace harassment, workplace investigations
Picture this: It is 9:15 a.m. on a Monday morning. You are sitting at your desk working on a project. The phone rings and it is your boss. He asks you to see him in his office immediately. He sounds upset. You walk down the hall and enter his office and sitting there with him is the VP of HR. She advises you that allegations have been made against you, and that you are alleged to have harassed a female employee. The VP, in the presence of your boss, advises you that an investigation will take place shortly, and that you are expected to cooperate. She also advises that pending the outcome of the investigation you are being suspended with pay.
You are stunned and in shock. Your heart is beating rapidly. You are sweating. You have been accused of harassment. Now what?
One of my favourite commentators is noted Toronto lawyer Howard Levitt. In a article in the National Post earlier this year on February 6, 2018 Mr. Levitt provides some useful thoughts and insight into the issue of harassment investigations:
At the outset let me state a personal belief: there is no justification for harassment in the workplace regardless of whether it is sexual, psychological, physical or emotional. This behaviour may have been tolerated or ignored in the past in many workplaces, but no longer…and rightfully so. That being said, I maintain that anyone who is accused of harassment is, at a minimum, entitled to due diligence and a fair investigation.
Critical Stages in a Workplace Investigation
If you are the subject of a harassment allegation you need to understand how the investigation will play out. Ideally and in theory, a neutral party should conduct this investigation. In some cases, it may be someone from Human Resources, or it may be an external party, possibly a lawyer, hired specifically for this purpose. If the investigator does their work properly they will meet the accuser privately, interview you privately, and interview any other witnesses or co-workers. Afterwards, they may again meet to gather or confirm additional details, and thereafter, write a report detailing their findings. Ultimately, it will be Human Resources and/or senior management who will determine whether the allegations are true or false, and whether some form of discipline will be imposed.
Should you cooperate? My response is “yes. However, how you prepare, how you proceed, and what you do or say needs to be carefully thought through and strategic in nature.
What to do when Accused of Harassment:
- Avoid an emotional reaction. While you may be tempted to yell, scream or rant make sure you refrain from any emotional outbursts.
- When first advised of the accusation do not provide a response. Remain stoic and silent. Do not admit guilt or wrongdoing.
- Make sure you understand exactly what you are being accused of, and if available, ask for an official copy of the complaint. Doing this will limit the scale of the complaint.
- Ask for a copy of your company’s harassment policy. This will enable you to see how this harassment investigation will be conducted. If your company does not have a harassment policy ask how an investigation will be conducted, and a timeframe for completion.
- After your meeting write down everything you recall about the alleged incident. Make note of the date, time, location, what the alleged accuser said or did, and what you said and did. If there are any e-mails or evidence pertinent to this make sure you gather them.
- Consult an attorney. You may think this is an over-reaction but consulting with independent legal counsel demonstrates two things. First, it confirms to those in authority that you treat this matter seriously. Second, it shows you have confidence in your position and are, if necessary, prepared to fight. It may cost you $500 to $1,500 for a legal opinion, but then good legal advice has never been cheap.
During the Investigation:
- If you have retained legal counsel then ask that he/she be allowed to attend the meeting with the investigator. If you are a unionized employee then ensure that your union steward attends with you in the meeting.
- If you do not have legal counsel ask the investigator if you can tape the discussion. If this request is denied, ask if you can have someone in the interview with you who you trust who can take notes on your behalf. Why? Because you will be understandably nervous when being interviewed, and it will be difficult to concentrate. Either option provides you with an independent record of the questions asked and your responses, and shows that you aren’t relying solely upon the investigator’s record of what was asked and said.
- Answer the investigator’s questions honestly and completely. Be sure to provide contextual information where necessary, but don’t get mired in history or extraneous details.
- Do not defame your accuser, and refrain from negativism. Stick to what you know, and do not make assumptions about the accuser’s state of mind or motives.
- If the investigator challenges you or makes inferences or inflammatory remarks don’t lose your temper. Respond clearly, politely, and honestly.
- Before the end of the interview ask when the report will be issued, and request a copy. If the investigator tells you that they can’t provide you with a copy then make sure you ask your supervisor or Human Resources for a copy once it has been completed. Typically, a report should be completed within about ten business days. Anything longer is excessive.
The Long Wait
The time between the completion of the investigation and the publication of the report can be trying on both you and the person making the accusation. If you are the accused and you work in the same physical location as the accuser, and your employer has not suspended you during the time of the investigation or taken steps to separate you and your accuser, I advise you not to have contact with that person. Specifically, refrain from being alone in the same room with them. Do not threaten, intimidate or insult them in anyway. Above all, be polite and be respectful. Doing otherwise can harm your case.
Once the investigative report is completed, and assuming you are provided with a complete copy of the findings, you should read it thoroughly to ensure that the investigator has accurately interpreted your comments. If not, then discrepancies should be identified and communicated to Human Resources or your supervisor immediately. (N.B. This is why I recommend taping the meeting or having someone with you taking notes. Absent reliable information to the contrary it’s your word versus the investigator’s).
Factors Impacting Discipline
If the report finds you are at fault your employer has a number of disciplinary measures it can impose. Five factors will likely influence the type of discipline imposed are:
- Your tenure with the organization;
- Whether or not this was an isolated instance, a regular occurrence, or a pattern of habitual behaviour;
- Whether the harassment was unintentional or deliberate;
- The number of people impacted; and
- The suspected degree of harm inflicted upon the accuser, or the severity of the harassing behaviour.
Types of Discipline
Depending on the alleged harassment and the nature of your employment the type of discipline that could be meted out could vary from a verbal or written reprimand, to a requirement to undertake anti-harassment or cultural sensitivity training, to one-on-one counselling, or even termination.
Should you accept or challenge the results of a harassment investigation? My personal opinion is that if there is some credence to the accuser’s allegations, or if your remarks or behaviour could, in anyway, be construed as in bad taste or offensive, and termination is not proposed, you would be wise to accept the discipline. While it may be damaging to your ego at least you still have a job.
If, on the other hand, you truly believe the allegations are baseless, or if termination occurs, then you are faced with a real dilemma. If you plan on challenging then you really need a lawyer.
Knowing where you are in the process, understanding the steps that will be followed, and being aware of your options, are critical to dealing with a harassment investigation.