THE DAUNTING TASK OF INVESTIGATING A harassment claim is one that is faced by many human resources and employee relations professionals on a daily basis. As highlighted by the former Fox News Anchor, Gretchen Carlson, in her interview with Amy Robach on ABC’s “20/20,” the issues surrounding these investigations are extremely complicated. By answering the following three questions, you can take steps to better prepare your organization to appropriately handle and ultimately take steps to prevent the occurrence of workplace harassment.
Is it being reported?
One of the major issues called out by Carlson, which unfortunately is echoed by many employees, is the difficulty for an employee to report any type of uncomfortable behavior or hostile work environment. A study published by Huffington Post in 2015 stated that 71% of female employees did not report some form of sexual harassment at work. This troubling figure means almost three out of every four incidents of harassment go unreported and thereby uninvestigated.
There are a variety of potential reasons to explain the significant under-reporting, all of which should be taken into consideration when developing a reporting protocol and investigative strategy. One common reason for an incident to go unreported is the victim’s fear of being disbelieved or blamed for the occurrence. The initial reaction by the investigator, or the ensuing conversation, may give the victim the perception that what occurred is his/her fault. Another common fear for the victim is retaliation, which could range from further harassment, loss of employment, personal embarrassment to loss of promotion ability and reputation. As the investigator, it’s also important to understand the victim may not want to report the incident because he/she is embarrassed both personally and professionally. Imagine the situation from the victim’s perspective; discussing unpleasant, personal details in a professional environment. This is not an easy conversation or disclosure to make as a victim and, therefore, it is essential for the investigator to be empathic and provide a secure environment.
Lastly, an ever-increasing problem is the bystander effect in which multiple people are exposed to an incident; however, each individual assumes the other colleague will report what happened (think back to the infamous 1964 murder of Kitty Genovese). In actuality, when all witnesses or victims rely on somebody else to stand up and report what happened, nobody does and the situation progresses.
How are you investigating?
If we’ve made it to this question, thankfully the incident has been reported; however a difficult task for any investigator is preparing for what to do next. Oftentimes a mishandled investigation only increases the reasons for future victims not to report incidents of harassment. Violating confidentiality, lack of due diligence, ignoring retaliation claims, or showing disbelief towards the victim are not only detrimental to the current investigation, but will have long-lasting effects on the culture within the organization.
In most cases there should be an interview with the victim to gather all necessary facts. A cognitive interview approach is typically most appropriate in this conversation, allowing the subject to provide an untainted version of their story. This allows the victim to discuss their perspective without a reaction from the investigator that would indicate any bias or doubt, as well as provide an uninterrupted stream of memory recall of the incident. If conducting a thorough fact-finding or cognitive interview, the investigator should then ask clarifying expansion and echo questions to obtain as many details as possible. Echo questions are essential as each individual may define words differently. For example, if the subject stated, “John hit me on the arm,” the word “hit” may be understood differently. A proper use of the echo question, “He ‘hit’ you?” will allow the subject to define their interpretation. This interview should be closed out per company protocol; however, topics related to confidentiality, retaliation and allowing the subject to understand the investigative process should also occur. Promises shouldn’t be made, other than the indication that claims are investigated fully.
Based on the specifics of the case, a strategic flow of the investigation should be prepared. Taking in appropriate partners from human resources, legal, operations, or other divisions to ensure the organization is prepared for any potential outcomes of the case. Interviewing witnesses should typically be conducted in a similar manner to the victim interview – utilizing the cognitive approach and gathering as much information as possible. It is important for investigators to understand that each person may view a situation differently, which does not necessarily mean they are being deceptive. For instance, individuals may have different thresholds or tolerances for their definition of harassment or inappropriate behavior.
Once all the information is gathered, investigators should attempt to obtain any evidence regarding the allegations. Emails, transcripts, video surveillance, or any other evidence to support the information obtained will be a significant help to the interviewer and ultimately the decision maker.
With a more thorough understanding of the scope of the investigation, interviewers should partner with their team prior to interviewing the accused. Understanding the potential outcomes of the conversation, creating a contingency plan, and knowing what specific allegations need to be addressed is part of this strategic process. Typically, a non-confrontational, rapport-based interview approach is the most efficient and ethical way to obtain the truth from the accused subject. The WZ Non-Confrontational Method is an approach often used by investigators to afford subjects the opportunity to disclose their involvement in these acts. Oftentimes this approach may be combined with the cognitive interview or the participatory interview if the goal is to obtain more information from the subject.
"Showing empathy and understanding from the reporting process through the investigation and afterwards is essential."
Lastly, it is essential that any confession from the alleged is investigated and corroborated. These types of investigations are often fueled with emotion, which may unintentionally create a confirmation bias in the interviewer who is attempting to seek closure on behalf of the victim.
Can you make a difference?
First and foremost, we need to reflect on the how many investigations go unfounded or unreported and then attempt to understand the reasons why this is occurring. Review of your organization’s reporting policy and structure is a good initial step in addressing the problem.
Ensure there is an environment where victims or witnesses can report incidents with limited exposure or embarrassment, while allowing them to be understood and heard. Attempt to break through the bystander effect by creating awareness programs regarding how to recognize and easily report incidents of sexual harassment may afford more individuals the opportunity to disclose sensitive information.
If the reporting procedure seems to be operating efficiently, the next step is to review the investigation protocol. Having a standard operating procedure for employee relations investigations will promote consistency and thoroughness in each case while also providing the investigators a step-by-step guide on what to do.
Showing empathy and understanding from the reporting process through the investigation and afterwards is essential to maintain a positive culture and provides courage and support to employees that may find themselves in an uncomfortable situation. Although these investigations may go unfounded due to the lack of evidence, employees need to be able to rely on their partners to thoroughly and ethically examine each claim.
Although an investigation may start with a “he said” or “she said” ambiguous complaint, taking the proper steps will allow the interviewer to clarify the hearsay and identify the truth.
David Thompson, CFI® is vice president of operations and director of investigations, research and innovation with Wicklander- Zulawski & Associates, Inc. (WZ). He manages a variety of investigations as well as conducts interview and interrogation training across a wide spectrum of clients and diverse cases. As a speaker for WZ, David has presented at seminars, hosted a variety of webinars as well as conducted live broadcasts of training. He is also an active member of the International Association of Interviews (IAI) and has contributed blogs, video tips and hosted webinars to support the continuing education of its members.