A Sexual Harassment Complaint? Ten Responses to AvoidJonathan A. Segal
When it comes to sexual harassment in the workplace, liability may hinge not only on the alleged wrong but also on how the employer responds to it. Here are 10 things you as a manager should never say or do if an employee complains to you about harassment.
1. Promise absolute confidentiality
The litigation spotlight begins where the complaint stops. Unless you want to be the star witness in litigation, do not promise absolutely confidentiality. For purposes of the law, you are the employer. If you are aware of the problem, so is your employer. You ordinarily have a duty to let human resources or someone else in senior management know.
2. Use legal labels
Many unacceptable things are not necessarily unlawful. For example, being rude and mean isn't unlawful unless you are discriminatorily selective in terms of who is the recipient of your rudeness and meanness.
So avoid legal labels that may not have validity. Don't use the word harassment; ask about behavior without putting a legal or other label on them. For example, ask "Did anyone else engage in conduct that you considered inappropriate?" as opposed to "Did anyone else harass you?" Don't call the accused the harasser; refer to him or her by name without using any label. Remember, the accused has rights, too.
3. Agree with the complainant
Assume that the complainant tells you her boss grabbed her breasts. A human reaction would be: "That's horrible." Well, it's horrible if it's true. But what if it's not true?
You don't want to raise the complainant's expectations before any investigation is conducted. You also shouldn't suggest guilt on the part of the accused before you have spoken with him or her. Of course, you could say "that's horrible, if true." But now you have suggested that the employee who is complaining about abuse may be a pathological liar to boot—at least that's how the employee may interpret it.
You need to be empathetic but still remain neutral. Acknowledge the feelings without agreeing with the facts. It's fine to say: "I know this is difficult. I appreciate your trusting me." But don't remark: "That's horrible. That's harassment."
4. Touch the complainant
Complaining about harassment is a big step. It takes courage. Of course, some employees claim a violation about virtually everything, but it's equally true that many employees put up with horrific conduct before they reach the point where they can take no more and finally complain.
The process of sharing concerns often feels cathartic for the complaining employee. Tears are not uncommon. So why not support and console the employee with a hug? A good idea only if you would like to be called a defendant, too.
Someone who complains about harassment feels vulnerable, and your power is at its peak. Don't touch, no matter what. I repeat: Don't touch.
5. Tease or joke with the complainant
Sometimes we use humor effectively to defuse a difficult situation. This is not one of those situations. The making of a complaint is a very serious step. Don't make light of it by teasing or joking with the complainant.
6. Complain about your schedule
Have you ever had an employee complain to you and thought to yourself: "This is a great time for him to complain. I have nothing to do right now."
There is never a "good time" for an employee to complain to you. You're always in the middle of doing something else. Nonetheless, never tell the employee how busy you are or gripe about your own schedule. It will come off as cold and callous, not just to the employee but also to the jury.
7. Deny the harassment component of the incident
At times, it may be clear to you that some part of an employee's complaint doesn't qualify as harassment. Harassment is a serious legal and moral wrong. But if everything is harassment, then nothing is harassment.
Nonetheless, now is not the time to argue or philosophize. Your job is to listen and then report. Even if you are the decision maker, you still don't want to give the employee the benefit of your thoughts when he or she is sharing concerns with you. Listening does not equal agreeing, so listen more and talk less.
8. Blame the complainant
In rape cases, defense counsel used to argue that the victim "asked for it" because of the way she looked, walked, or dressed. And tragically, the defense sometimes worked with juries. Fortunately, the law generally precludes lawyers from making this hateful defense.
I am not comparing harassment with rape because virtually nothing compares with rape. But we need to be careful not to suggest that the harassment complainant is responsible for that about which he or she complains.
You'll end up in the hot seat if you ask such questions as "Is that what you were wearing when he made that comment?"
9. Tell the complainant to talk with someone else
You may not have the authority to resolve the complaint. But don't tell the employee to talk with someone else. What he or she will hear is "that's not my problem."
In the same vein, don't encourage the employee to get a lawyer, file a charge with a government agency, or contact the police. Those are options available to the employee, but they should not be raised by you when you receive a complaint. Listen and then report internally as required by your employer. Seeking outside assistance for the complainant probably falls outside your responsibility.
10. Encourage self help
Don't suggest that the employee confront the alleged wrong-doer before you will do anything. An employee has every right to raise the issue with you without talking first with the person who is making him or her uncomfortable.
And of course, don't encourage the employee to fight fire with fire. Unacceptable conduct does not justify an unacceptable response.
When an employee takes you into confidence and complains about harassment, you can and must take the complaint seriously and treat the employee with respect and dignity. Avoid the 10 mistakes described above, and you're on the way to doing the right thing the right way.
Note from the author: This article should not be construed as legal advice or as pertaining to specific factual situations.