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What Not to Do When Dealing with Harassment Complaints

May 18th, 2018 by Valerie Juarez, Inspiring HR

Exposing misconduct is in the air. So we ask employers: what kind of environment have you been cultivating?

The recent explosion of accusations and charges of sexual misconduct has put the nation’s employers on alert. If you don’t have a policy and procedures on dealing with sexual harassment, or its bigger category, harassment, in place, you better get them – fast.

If you google “harassment policies” you’ll see the uptick of blogs and discussions on what to do. What you don’t often hear, however, is what you were doing wrong, i.e., what not to do.

What companies often do wrong in dealing with any type of harassment:

Not training your managers to spot and act on red flags proactively. While this might seem obvious on paper, I have discovered any number of managers looking the other way because they feel the absence of an active complaint means that no one is being negatively affected.  This can be the overly sexual calendar in the warehouse office, the casual shoulder rub in the break room, the locker room jokes in the executive conference room, playful flirting with direct reports, the racist joke, or tolerating inappropriate comments or language from a customer or business vendor because “they are the client”.  The assumption is that it is all in good fun and not “unwanted” by the group involved, so unless a complaint is on the table, it must be okay.

The danger here is that by not driving change to stop these behaviors, two things are happening:

1 – You’re inadvertently enabling a culture that tolerates and supports harassment in the workplace; and,

2 – The fact that your supervisors or managers are aware but not acting is putting your organization at additional risk for purposely neglecting the problem.

The magnitude of this problem might not be appreciated until an employee files a charge with the EEOC or hires an attorney and the investigator brings all these past behaviors to light. At that point, it is too late to fix, and the financial ramifications will be huge.

Not taking a complaint seriously. You may be thinking, “I’d never not take it seriously!”, but, you may have not realized you were hearing a complaint.  There seems to be a poor assumption out there that for it to be a complaint, the employee must march over to HR or will start a conversation with “I would like to place a formal complaint”, but that isn’t what normally happens.  More often than not, the problem is in the beginning or middle stages, where the employee feels uncomfortable but is afraid to say anything or does not want a huge fuss, so they say it to bring it to your attention but don’t emphasize it, and back down if you don’t seem receptive.

For example, during a weekly sales update where you are asking how a new client is doing, the representative might say, “Things are going well, he likes our products, and is increasing his order next week, but the guy is kind of creepy.  He tends to be handsy with the female vendors.” If your response is, “Great job on increasing the order! Don’t let him bother you too much, he’s harmless”, you most likely just heard a complaint, blew it off, and defended the client’s behavior. Upon hearing your defense of him, this employee will be less likely to feel safe continuing the conversation to reveal something specific that may have occurred that is bothering them, or a desire to seek your help with the matter.  The better response would have been along the lines of “That is not acceptable. Do you need my help dealing with this, or is there anything else we need to know about his behavior?” or, more directly, “Do you need to place a complaint?” to drill deeper into what you are hearing.  If it is a complaint, deal with it appropriately and involve an HR rep.  If the response is “I’m fine, it’s just an observation, for now”, you should always encourage and support the employee that you are there to help, and you should give HR a heads-up.  It also does not hurt to remind your staff that “the first and best way to handle a minor annoyance before it festers is to stand up for yourself and state to the offender that a specific behavior is not okay with you and needs to stop, and if that doesn’t work or you’re not comfortable doing that, the company needs to know so that we can help”.

Not having a documented and clear communication process while handling a complaint. It is ALWAYS a good idea to produce an “acknowledgement of receipt” letter to the person placing a complaint immediately or at least within 24 hours. It should also provide verification that you will be conducting an investigation and communicating a goal for completion of said investigation, typically about 10 business days. Realistically, the faster you can wrap it up the better, but to give yourself some time to do it right is important up front.

Why does this matter? After placing a complaint, the employee is anxious. If they have been told, “We’ll get back to you” without a timeline, they might assume nothing is being done after a week of silence.  This leads to poor reactive behaviors such as telling other employees the company doesn’t care, it might impact their productivity, or generate the feeling that they need to escalate the matter to an outside party to be taken seriously. Not having a similar notice to the person who the complaint is directed at is also a miss.  They deserve the courtesy of seeing the issue and the process in writing and have the same benefits of a time line, so they know what to expect. Having a comment misunderstood or feeling wrongly accused is a painful experience, and an employee who wasn’t expecting a complaint can exhibit the same negative reactive behaviors with colleagues or outside agencies if they don’t feel you are handling the matter professionally or thoroughly. When all is said and done, if you don’t also produce letters to the involved parties on the completion of the investigation and how they are each affected, you are missing out on a chance to clearly communicate for their peace of mind and to document to minimize risk.

Not having or not enforcing a no-retaliation policy. This is a horrible mistake. It’s one thing to put out the expectation of no-harassment, it is another to ensure employees feel safe using it. If you don’t have the safe-guard of no-retaliation, employees won’t step forward until issues are unmanageable.

It’s an HR practitioner’s wish that employees would always step up when issues are so minor that no-one needs to lose their job. Instead, the issue is addressed, no one was hurt, the bad behavior stops, everybody learns something, and employees return to their respective roles.  That won’t happen if employees feel that sounding the alarm causes more problems than it solves. Whether it is because it drives change that other employees resent and they isolate or harass the complainer, or because the employee feels their career will be negatively affected by management because they went against status-quo.

The ramifications of retaliating need to have as much, or more, impact than violating any other policy. I once fired a manager not because he said something inappropriate to a pregnant employee, but rather because after he was counseled and coached on the matter he stormed over and complained to her that she complained.  She never wanted him to lose his job, but he was not professional enough to learn from the situation and stop hostile behaviors.  That is not something the company needed in its management team.  The resulting credibility that management gained from employees for a willingness to address problems and make hard decisions went a long way.  It also set an example for others who needed to improve on how they handled constructive feedback meant to better the workplace.

Looking ahead

If you look deep inside your organization, you can almost always find something that is being done wrong.  While you don’t know what you don’t know, you can put safeguards in place to prevent behaviors you don’t want. When you sit down to develop or update your harassment policies, stop and think about the loopholes discussed above and ask yourself if you can rely on your managers to respond appropriately.  If the answer isn’t a resounding “Yes,” this should be where you focus additional training and support to bring your policies to life.

Click the link to view the recent INFINITI HR blog: Offer Letters, Not Employment Contracts or check back for more on human resources, payroll, insurance and benefits.

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