The recent barrage of sexual harassment claims — in the realms of politics, news organizations, Hollywood and beyond — are a good reminder that there are best and worst practices when investigating allegations of misconduct.
On Friday, three women called on Gov. Dayton and top lawmakers for the creation of a task force. It would recommend, among other things, a new process for reporting sexual misconduct of elected officials and candidates. Two of the women have accused two Minnesota lawmakers of harassment.
We asked Penelope Phillips, an employment attorney who conducts training on how employers can recognize and deal with sexual harassment, to provide some guidance on how managers should handle these kinds of complaints in the private sector. Phillips represents employers and investigates complaints of employee misconduct.
What is the biggest mistake employers can make when they receive a complaint of sexual harassment?
"The most serious one is not to recognize the complaint," Phillips said. "You can't take a report and do nothing about it."
Under sexual harassment law, the employer is liable if it knew — or should have known — of the harassment and failed to take "timely and appropriate action."
But what if the person making the complaint insists that the manager not tell anybody?
"As soon as the manager knows, they can't keep it confidential," Phillips said, adding that the complaint should be forwarded to human resources. "You can't take a report 'as a friend.'"
But, she said, managers can take steps to protect the complainant's identity, especially if he or she is fearful of coming forward. "You can certainly conduct an investigation and talk to an alleged perpetrator without necessarily naming names, although usually the person who's accused can figure it out."
What advice do you have for conducting a fair and thorough investigation?
Find out as much information as possible from the person making the complaint. Follow up with any witnesses. And talk to the alleged perpetrator.
"That's straightforward, but it's not always that simple," she said. "Be nimble, because it will take twists and turns."
When you have all the information in hand, determine if the complaint is substantiated. If so, decide on the disciplinary action against the harasser. It could range from a written warning to termination.
How do you make sure the person who's the subject of the complaint receives a fair shake?
"One shouldn't make a decision as an employer unless you talk to the alleged wrongdoer," Phillips said. "Make sure you fully understand what happened and investigate all potential avenues. You need to make sure you get everybody's side of the story."
Rushing to judgment before all the facts are in can backfire, she said.
How many cases have you seen where the complaint turned out to be false?
"I've only had, in 30 years, one case where the person came forward and said, 'I lied,'" Phillips said.
More often are cases in which people have differing views of what happened, or in which the complaints simply couldn't be substantiated, she said.
Any other advice?
Once the investigation has been resolved, always go back to the person who originated the complaint.
Sounds obvious? It apparently isn't, Phillips said.
"I've had so many complaints or threatened litigation on that issue, and it's confounding to me: Why would you go through all the trouble to do it right," she said, but fail to "tell the person who had the courage to make the complaint what happened?"
You don't need to divulge exactly how the perpetrator was punished, she added.
It can be as simple as: "Thank you for taking the time to let us know. We want you to know we did a thorough investigation. Your complaint was substantiated, and we think we've taken action that is appropriate under the circumstances."