Employee Complaint Intake
As we interact with our clients and students in our HR investigations classes, we frequently hear, “So, what do we do when it seems every employee is alleging hostile work environment?” It is difficult today, because so many employees think they understand what a hostile work environment is. And, actually a lot of HR professionals are a little fuzzy on it too. Here is the actual definition of a hostile work environment, to ensure we’re all on the same page:
Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).
Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.
Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.
With that said, a lot of employees tend to stomp in to the HR office to complain of a “hostile work environment” and that initial point of contact with the complainant is incredibly important. Key facts need to be obtained in that complaint intake meeting, so the first step in how to handle an allegation of hostile work environment is to be ready to listen and document what the complainant has to say–without taking sides.
For starters: No Bias!
At complaint intake, an investigator needs to be completely unbiased in his/her approach. You wouldn’t want to say, “Ok, Alvin, I hear what you’re saying about your manager, Bob, creating a hostile environment, but I’ve known Bob for ten years. I think you just caught him on a bad day…” Yikes! That is most definitely not what an investigator should do–try to take sides. Also, a good investigator is not going to allow him/herself to get sucked into the drama of what the complainant is saying. Too often, complainants can play upon the emotions of the investigator handling intake, to the point of the investigator already being biased toward the subject and assuming he/she is guilty. Again…yikes! These are the things that can come up during litigation and cause an organization to lose a case, as having an investigator who was “out to get” the subject will indeed come up. So, always remain neutral when dealing with the complainant and, for that matter, all others involved an investigation.
Next, ask good, open-ended questions:
To conduct a thorough witness interview with the complainant, ask: Who, What, Where, When, Why, How and get the chronology of incidents, particularly if more than one incident. In a hostile work environment case in which, let’s say a female employee is being harassed by a male coworker, it will be important to establish at what point the harassing remarks or behaviors began. A good question to ask would be, “Ok, Ashley, you mentioned that Mr. Jones groped you yesterday, as you were standing at his desk. I have all the details regarding that. Now, please tell me about any other incidents you, or any other individuals, may have experienced that are similar to this one. (give her time to respond…) Ok, so another similar incident happened at the trade show three weeks ago. When exactly was that? Please tell me the time of day. AM or PM?” It is important to get the specifics, so continuing on with the open-ended questions to determine who else was around, what exactly happened, is critical. And, documenting the complainant’s responses.
After identifying the first incident that the complainant experienced, an investigator needs to work forward, chronologically, to understand a timeline of events. The reason this is important is to identify if the behavior the coworker demonstrated was an isolated incident or if this has been a repeated pattern of behavior. If this has been a repeated pattern of behavior, the seriousness of the case has now increased. And, HR, or another appropriate department such as Employee Relations, must launch an internal investigation. If the complainant has made the complaint in good faith and the evidence collected in the case substantiates the complainant’s allegations of groping and other sexually harassing behavior, the organization must then apply some sort of a remedy to ensure this doesn’t happen again.
There are many more steps to take in properly investigating allegations of harassment; however, in this blog I wanted to focus on the initial complaint intake. Stay tuned for future blogs where I’ll discuss other important steps of conducting HR investigations. To learn more of the “how-to’s” and to learn about our instructor-led programs in how to conduct HR internal investigations, just click on this link.
Until next time!
Natalie Ivey, MBA, SPHR, SHRM-SCP
President & CEO
Results Performance Consulting, Inc.