Strange Bedfellows–Part 2
"Well, the worst is behind me," Zack thought. Meeting with Rod would be another kind of challenge. Zack contacted Rod Bendellen's manager, the vice president of risk management, and briefed him. Together they decided that it would be best if Zack talked with Rod alone.
Zack played mental tennis as he served up alternatives in an attempt to find the right strategy. "Should I approach him delicately and tap dance around this or hit him right between the eyes with the allegation and watch for a reaction?" Zack considered. Zack decided on the direct approach, but carefully selected his language.
Since Zack and Rod had worked together before on other auditing projects, when Rod got a call from Zack to come to human resources, Rod assumed Zack needed his help on a case. The two exchanged greetings and Zack got right to the point in an attempt to catch Rod off guard.
"Rod, you know that we investigate things as they come up. There's a male member of the management in the company who has made an allegation. He claims that you've had a sexual relationship with him," Zack said, intentionally using the generic terms "male member of management." He wanted to protect James, so he did not say "store manager" or "pharmacist."
Rod did not respond immediately. He looked away toward the window, took a long pause as though gathering his thoughts, and then turned his head back toward Zack in delayed protest. "What? I can't believe that! Who made that allegation? I'm a married guy. I've been married for 17 years!"
Zack listened and observed. There was something in Rod's manner that didn't ring true. The lack of spontaneity, the long pause, and then what seemed like contrived anger didn't fit. As Zack was assessing the situation, Rod added, "Look, I've never even gone out on my wife. The only time anything ever happened to me was when I got drunk with three of my Marine buddies one night. We were all out on leave, and I wound up getting it on with some hooker."
Zack just sat there, staring at him and saying nothing. Rod's drunken Marine anecdote was not only inappropriate but irrelevant to the discussion. The more Rod protested, the more Zack was inclined to discredit him. However, despite Zack's gut reaction, he had no proof of Rod's guilt. Without concrete evidence it boiled down to James's word against Rod's.
To ensure that James was protected against further harassment or retaliation, Zack informed Rod, "Look, Rod, I'm going to take your word for it and assume you didn't do this. On the other hand, if I were in your shoes, I'd probably be wondering who made this accusation and trying to figure out who the gay men are in the company."
Zack paused for a moment and observed Rod. Rod nodded in agreement.
"Rod, although that would be a natural thing for you to assume, the complainant doesn't necessarily have to be a gay man. And, the worst thing you could do is go back and talk to whomever you suspect and then tell him that you were accused of this. For your own sake, don't try to take this out on anyone. If you do, we will consider that retaliation, and you could lose your job–even though you may be totally innocent of these allegations.
"It's important for you to remember, Rod," Zack continued, "that you're in a role where you have to be above that. You have to personally remove yourself from the situation and deal with it for what it is. Somebody came forward and complained. When that happens we're obligated to investigate. We have an open-door policy, and they wanted to use it. So we have to respect that and move on. Do you understand?"
"Yes," Rod responded.
"Okay, so let's forget it then," Zack said.
Rod left the office and Zack informed Rod's manager of the outcome of his investigation. Zack told him he didn't have adequate proof of Rod's guilt, so he had to assume his innocence.
Zack followed up with James to inform him that they had investigated the situation and that Rod had denied his allegations. However, Zack told James that if he experienced any further harassment, he should let Zack know immediately. Zack followed up with James again several months later, and asked if he had any more problems. James indicated that everything was fine.
About a year later, James was fired for poor performance and filed a sex discrimination suit against the company. He raised the issue of his prior sexual harassment complaint. Zack conferred with the Equal Employment Opportunity Commission (EEOC) investigator and indicated that the company had treated James's sexual harassment case appropriately. Zack demonstrated through his investigation procedures and follow-up that James was treated no differently than a female would have been treated under similar circumstances. When the EEOC reviewed Zack's documentation, they ruled that there was no sex discrimination and held James's termination as valid.
We had mixed reactions to this one. Half of us think Zack handled the situation fairly and systematically. The other half feels that the company was lucky to get off so easily. Despite the outcome of the EEOC review, we argue that Zack's handling of the investigation and follow-up missed some key ingredients.
Although Zack began his investigation properly by holding a private meeting with James and taking copious notes of the allegations, he sidestepped a few precautionary procedures. For example, Zack should have specifically informed James that the company takes harassment seriously and that he appreciated James's willingness to come forward with the complaint.
Also, during this initial meeting, Zack should have been very clear to James that the company would not tolerate retaliation, and, if any occurred, James should immediately report the incident directly to him. Moreover, Zack needed to indicate both verbally and in writing that it would be inappropriate for James to discuss this issue with anyone in the company other than Zack. Alternatively, if James was for any reason uncomfortable with Zack, then he could discuss the matter with the president of the company. Finally, James should have been informed that Zack was required to discuss this claim with Rod. In sexual harassment cases, if a manager knows or has reason to know that harassment may have taken place, he or she has an obligation to investigate the situation. This involves discussing the situation thoroughly with both sides, using specific detail, including names. Rod has a right to know what he has been accused of and by whom. And the law protects James from retaliation.
Our panel continued to disagree the handling of this case and legal chimed in from a different perspective. To learn more, click here
Excerpted from Sex, Laws, & Stereotypes, by N. Elizabeth Fried, Ph.D.©