The #MeToo movement has resulted in a marked increase in the number of women and men raising complaints of sexual harassment and discrimination in the workplace. Employees are demanding that individuals and organizations be held accountable for past wrongs through demands for formal investigations and through filing lawsuits. How will your non-profit respond to such a complaint? What are your options? How can you protect your organization and its employees from further harm and liability?
First, your organization needs to respond swiftly to the complaint. Second, once the immediate complaint is addressed, you may want to look deeper into the culture and climate of your organization to see if there are factors that are contributing to a less-than-harmonious if not downright hostile work environment.
Respond to Complaint
When an employee makes a complaint of harassment or discrimination, take it seriously. Be mindful that it takes a lot of courage for an employee to come forward with these types of allegations. They often fear retaliation or losing their job. Thank the employee for bringing her/his concerns forward and let them know you will take immediate steps to investigate the matter swiftly and thoroughly. If you have a Board of Directors, notify them promptly of any serious allegations. Board members may be able to provide support and advice based on their own managerial experiences. Also, Board members do not like to be surprised with bad news. You or your Board Chair may also want to let your insurance carrier know you have received a complaint. Often insurers can provide advice and guidance on how to limit the organization’s liability.
Lawyer up? This is another option. Because complaints of discrimination, sexual harassment and other types of misconduct in the workplace can lead to serious financial liability and cause damage to the organization’s reputation, you may want to consider consulting outside legal counsel who has experience in handling these types of claims.
Conduct the Investigation
All complaints should be investigated promptly and thoroughly, even those which may initially appear to be minor or meritless. Investigations should be conducted by individuals who have the proper training and experience and who can be truly impartial. Complainants, respondents and witnesses must feel comfortable that they can speak freely without fear of reprisal.
Internal or external investigator? That’s a good question. Again, there are a number of options non-profits have for conducting investigations, including utilizing your own Human Resources staff, in-house counsel, or private, independent investigation firms. Each has certain benefits. While internal personnel may understand the unique work environment and have “inside’ knowledge of the people and circumstances involved, utilizing outside, independent investigators has become the preferred method for responding to these types of claims and allegations.
There are several reasons why a non-profit should consider using an outside, independent investigator:
· Impartiality & independence – outside investigators have no stake in the outcome of the investigation. They enter with a well-defined role and a clearly articulated investigative plan– to interview complainants, witnesses and gather facts. Also, with no preconceived impression of the presenting situation and the individuals involved, outside investigators are able to be impartial. Complainants and witnesses may perceive in-house investigators as biased or placing the interests of the organization ahead of their own.
· Credibility and integrity – bringing in an outside investigator shows that the organization takes the allegations seriously and is invested in bringing swift and just resolution to the situation and is willing to face the consequences that flow from it. Often, complainants and witnesses are reluctant to participate in investigations conducted by in-house personnel due to fear of retaliation and/or a desire to avoid conflict or damage to professional relationships. An outside, independent investigator is more likely to be viewed as an objective, neutral fact-finder and employees are more likely to trust that the investigative process is conducted with fairness and integrity.
· Experience – many in-house counsel and HR staff do not have extensive experience conducting investigations. Having investigators with special expertise in workplace investigations ensures a high quality outcome and can be critical to withstanding judicial scrutiny should the matter proceed to litigation.
Other Important Steps to Take During and After the Investigation
Whether you opt for an internal or external investigation, it is important that you take some important protective measures to ensure the safety and well-being of the complainant, respondent and witnesses. First, depending on the severity of the allegations, you may want to consider placing the alleged wrongdoer on paid leave pending the outcome of the investigation. Why paid leave vs. unpaid leave? One of the cornerstones of our justice system is the presumption of innocence. Unless and until there is strong evidence to suggest that someone has engaged in serious misconduct, s/he should not be financially harmed. Second, consider alternative work assignments so that the complainant does not have to work directly with or be supervised by the alleged harasser. Take care to consult with the complainant before moving her or him to a different work assignment. You do not want the complainant to feel they are being punished or ostracized for making a complaint. Third, be sensitive to the emotional needs of the complainant. Be liberal about granting paid time off during the investigative process. Finally, ensure everyone involved understands that retaliation of any kind will not be tolerated.
Once the investigation is complete, a determination must be made as to whether the conduct in question violated the organization’s policies and if so, what action to take. It is important to note that not all inappropriate conduct in the workplace will meet the legal definitions of discrimination and/or harassment, however, it might still violate the organization’s policies. In determining what type of action to take, you should consider the following factors: the severity of the violation, the impact on the complainant and the work environment, and the employee’s past history. Disciplinary action could range from a verbal warning to immediate termination, depending on the circumstances. It is important that all disciplinary action be carefully documented.
In the Aftermath - Look Deeper into the Organization
Once the immediate crisis is over, it is time to ask what in the organizational structures and processes may have fed into or supported the incident. In consulting with our clients, few cases and complaints are solely individual issues. Because people know about #MeToo and the law is a familiar instrument, they seek redress using what they know. It is up to managers to know to look more deeply.
What are some typical organizational issues a formal complaint highlights?
· Lack of clear policies (or outdated policies) regarding prohibited workplace conduct (harassment, discrimination, bullying ,etc.)
· No redress mechanism for complaints
· No shared understanding of workplace norms and behaviors
· Inadequate performance management to hold people accountable for bad behavior
Even if you have tight resources – whether that’s time or money or both – it behooves you to take a deeper look if you want your best chances for preventing future claims.
What are your options? You can talk to the people involved and who witnessed the incident. Have an open door and be curious about how management and the organizational structure (or lack thereof) may have contributed to the circumstances that led to the complaint. Remember, it’s not about blame, it’s about learning how you can take steps to improve your overall work climate. Sometimes simply being curious and open to what you’ll hear can clarify a lot.
If you have a larger, more persistent or complex challenge, it might be helpful to hire an outside consultant to conduct an organizational climate assessment. This will give you objective data and analysis with recommendations for appropriate workplace interventions. Typical interventions we see for our clients include mediation, training, and performance management improvements.
With the right process and leadership, a sexual harassment or discrimination claim can spark important organizational changes that improve the workplace for all employees.
For more information on conducting workplace investigations, join Loraine Della Porta and Amy Rebecca Gay on Wednesday, September 5, 2018 at 10:00 am for a Mass Nonprofit webinar. Register here.