Strange Bedfellows–Part 3
We also find significant flaws regarding Zack's discussion with Rod. This conversation needed considerable bolstering as well. Zack should have obtained a more thorough statement from Rod and arranged for a follow-up meeting. A second meeting would allow Rod time to reflect on the meaning of the charges and respond thoughtfully to each item. Although Zack appropriately informed Rod that retaliation would be grounds for immediate discharge, we suggest that Zack should have issued this warning in writing as well as verbally. Furthermore, Zack should have told Rod that any discussion of this issue with anyone other than him or the president would violate confidentiality and be grounds for disciplinary action.
Once the investigation was complete, Zack should have met separately with James and Rod once more to advise them of the outcome. (In this case he met with James and Rod's manager, but not Rod.) If we assume that Rod completely denied the allegations, then the investigation was inconclusive. As a result James should have been informed of such and thanked again for bringing the issue to the company's attention. Zack was correct in encouraging James to come forward if he experienced any future retaliation or harassment. These actions underscore the company's intolerance for sexual harrassment.
Regardless of Rod's guilt or innocence, Zack should have taken additional steps by meeting with Rod and educating him on the company's sexual harassment policies. Zack also should have reminded Rod that retaliation would lead to disciplinary action up to and including dismissal. Moreover, Zack should have informed him that despite the lack of evidence, if sexual harassment had occurred or would occur in the future, such behavior was totally inappropriate and would result in disciplinary proceedings
Additionally, we identified some side issues that warrant consideration. Zack expressed concern about this case before he began his investigation. Because this was Zack's first gay harassment claim, he felt that he "had to be extra careful with his investigation procedures." The key to properly handling gay harassment cases is to treat them exactly as you'd treat straight harassment cases.
Finally, Zack needed to consider whether these individuals could continue to work together. We suggest that Zack should have asked both men if they felt uncomfortable working together and arranged an appropriate (i.e., not to James's detriment) transfer if requested.
Either sex may be the victim or the offender in sexual harassment situations. This story also illustrates what we have emphasized numerous times in our other comments: the importance of adopting policies and procedures that minimize the risk of discrimination claims or, at least, maximize an employer's chance of successfully defeating claims, which will undoubtedly arise despite the employer's best efforts.
Zack's investigation of the complaint was cursory, and he failed to probe further when Rod denied the allegations. Sexual harassment complaints are not always easy to resolve. While employees' conduct may sometimes be blatant and may be publicly known or witnessed by employees other than the alleged victim, it is not unusual for a human resources manager to be faced with a situation where there is a complaint, a denial (e.g., the alleged victim's word against the alleged harasser's word), and no witnesses. The issue then becomes one of credibility. Zack could have asked James to come into the meeting after Rod denied the allegations. Such a confrontation may cause the truth to be forthcoming. However, employers need to be careful not to "force" an alleged harassment victim into a stressful confrontation meeting if the victim prefers not to participate.
In a situation where there is still a credibility issue after the investigation, it is appropriate to review the company's sexual harassment policy with the alleged offender. This will ensure that the individual understands that sexual harassment is unlawful and will not be tolerated by the company. The individual should also be advised that should further complaints arise, other disciplinary action, up to and including termination, may be necessary. Moreover, it is important to emphasize, as Zack did with Rod, that retaliatory action by the alleged harasser against the complainant will not be tolerated.
One important task that Zack appears to have neglected is a documentation of his investigation. Such documentation would be a vital weapon in withstanding any potential charges against the company in the event that either Rod or Zack filed charges.
Because it is unlawful to retaliate against a sexual harassment complainant, employers need to proceed cautiously if the complainant is discharged from employment for other reasons. For example, in this story, James was ultimately fired for poor performance. Thus, it is important to have documentary support (e.g., performance appraisals and probationary notices) in the individual's personnel file to withstand any charges of retaliation, and to refute the employee's likely claim that the alleged performance deficiencies were only a pretext to conceal an underlying motive–anti-gay bias.
Excerpted from Sex, Laws, & Stereotypes, by N. Elizabeth Fried, Ph.D.©