Handling harassment cases in the workplace depends on a solid comprehension of key concepts.
I’ve been noticing a trend in the reporting of harassment in the workplace and in the investigation thereof. A lack of understanding the concept of a nexus. To begin, a definition: a connection or series of connections linking two or more things.
Seems simple, yes? No.
Some of the cases I have investigated recently have featured such logic as:
A) I am a woman (man/young/old/tall/short, etc).
B) Something bad happened to me.
C) Therefore the person that did the bad thing is sexist (ageist, etc).
Do we all see the flaw? It is a bit easier when boiled down to the essentials, but for a surprising number of people, the above seems quite reasonable.
However, could it be that the accused individual was just a bad person, doing bad things to lots of people, for a variety of reasons? I would submit that yes, of course it is possible. And that’s the problem with the above argument.
The problem is not just contained to the folks reporting harassment in the workplace, the difficulty with the logic persists in Human Resource professionals and in fact with some highly paid external consultants. I have had the opportunity to review work done by both groups and have found variations of this theme in the work.
Let me be as clear as I try to be when I write Final Reports on Harassment complaints in the workplace; there must be evidence to link concepts. You cannot simply skip over the logic in an attempt to prove causality, the logic is essential in the investigation and ultimately, the appropriate resolution of, all complaints in the workplace.
I have made it my mission to help Investigators think about and refine their craft, while doing the same with my skills. Let’s connect and improve the industry together!
Questions or comments? I would love to hear from you.
One of the questions that I am often asked in training, and with increasing frequency in the past few years is: Can I take notes in an interview on my laptop? This is usually quickly followed by the proclamation: “I type a lot faster than I write”.
My answer has always been a reluctant “Do what works for you, but let me explain why I don’t do that” as I draw upon my stored experience to provide real world examples.
Today, while travelling to Calgary for another interview, one in which I will write my notes by hand and then transfer those to the computer using voice recognition software, I stumbled across an article that brought me some new thoughts that I wanted to share immediately.
The Title? “This is Why You Should Take Notes By Hand Instead of With a Laptop” The data for the article comes from a new study published by Pam Mueller and Daniel Oppenheimer (from Princeton University and University of California respectively). It was found that students who took notes on paper learn significantly more compared to their laptop-addicted peers.
Turns out that laptop users type almost everything they hear without processing the meaning or devoting much thought to what it is they’re taking notes on. When you take notes by hand, you obviously can’t write down every single word uttered. So you listen, summarize, and list only the key points. Your brain is more engaged in the process of comprehension and so the information processed this way is remembered better.
Seems like a recipe for better Harassment Investigation interviews and on the path to better statements and more efficient use of time to me. You’ll find me in the note pad section of your local Staples!
When to investigate a matter that occurs outside of the workplace.
One of the questions that I get asked in training quite a bit is whether an event that happens outside the workplace should be investigated. This case illustrates some of the current thought in the area and confirms the basic tenet that inaction is seldom the appropriate response.
The Case
This case is straight-forward in some ways and not as much in others. Some facts were agreed upon by the parties. It is agreed that Bruce, a 54 year old Registered Nurse and married father of two began working with Jane, a 24 year old Administrative Assistant who was single. Bruce acknowledged that he began flirting with Jane in the workplace and he described the activity as mutual. This is where the stories begin to diverge.
The events that follow led Jane to file a report with the Police, Bruce’s arrest and the laying of criminal charges against him, and his unpaid suspension from the workplace. The employer chose to conduct a workplace investigation even though the majority of the events that led to the criminal charges occurred outside the workplace. Bruce was less than fully cooperative with that investigation. At the conclusion of the investigation, Bruce was terminated for cause and his Union filed a grievance on his behalf. An arbitration followed.
After reviewing the evidence in the case, the Crown Attorney declined to file criminal charges.
The Events
Jane testified that shortly after she began work Bruce started to “hit on her” and his actions made her very uncomfortable. Jane did not know what to do as she was new to the organization, relatively young and inexperienced and she felt intimidated by Bruce’s position in the organization. Bruce’s actions toward her increased and culminated with him slapping her “rear” on two separate occasions in the workplace within two days. Jane asked Bruce to stop the behaviour and he said that he would.
Bruce denied the allegation of physical contact but agreed that he was flirtatious with her while at work on a number of occasions.
Jane testified that a day later she finished work and headed to her parents’ home for the night (nobody else was home). It is undisputed that Bruce went to the house at the end of his shift. Jane said that he appeared at her door and she asked him how he knew where she was. He told her that he had looked up the address on the internet and he walked in uninvited. Jane said that Bruce grabbed her hand, placed it on his buttocks and asked “isn’t that hard”. Jane testified that Bruce proceeded to sexually assault her and when she begged for him to stop, he ignored her. Jane said that eventually Bruce left, but not before threatening that she better not tell anyone at work what had happened.
Bruce’s story of the night in question is different. He insisted that Jane called him at work and after a sexually charged conversation, invited him over. He claimed that all the activity in the home that night was consensual.
Jane told her boyfriend and her parents about what happened and they went to the Police and the incident was reported to the Employer. The employer had to decide whether to investigate themselves or whether to rely on the criminal proceedings. Ultimately, they decided that the events were tied to the workplace and that they should conduct their own investigation.
Jane cooperated fully with the internal investigation. Bruce did not and put up barriers for the employer to obtain relevant documentation from his licensing authority. During the arbitration hearing it came up that Bruce had some conditions placed against his license that were related to another case of sexual harassment in another workplace.
The Union objected to the fact that the employer conducted an investigation at all, contending that the events in question occurred outside the workplace, between two adults and that the police were looking into the events. The Union also objected to the length of time of the internal investigation. It took almost a year to go through the entire process, which included requesting information from Bruce’s licensing body, and a mediated settlement attempt.
Decision
The arbitrator ruled that Jane’s evidence regarding the night in question was to be preferred quoting cases from the Supreme Court of Canada (R. v. Gagnon [2006] SCC, at papa 20 & F.H. v. McDougall [2008] 3 S.C.R. 41, 2008 SCC 53, at para 49) which spoke to the assessment of credibility.
With relation to the employer investigation, the Arbitrator ruled “In my view, on the basis of the evidence before me, the employer had the right, if not the obligation, to investigate the matter, and if considered necessary, to apply discipline.” The Arbitrator commented that the behaviour began in the workplace and by Bruce’s own evidence, he was attempting to start a relationship with Jane in the workplace.
In terms of the delay in the investigation, the Arbitrator found that the employer did not act in bad faith or that there was deliberate inaction.
