He Said, She Said: How to Handle a Harassment Charge

03/05/07

The Case
Bob was a highly effective regional manager for a retail chain. In charge of twenty-five stores, he’d worked his way up from shipping clerk and the company valued him highly. But now there was trouble, and HR director John was huddled with his boss, Susan, the chief operating officer.

“Tell me again what the sales clerk said,” asked Susan, taking out her notepad. “Well,” said John, “she said that every time Bob comes into the store—about twice a month—he asks her to have dinner with him. She always says no. Six weeks ago, she asked him to stop pestering her about dates. He said he would. He’s kept his word, but now when he comes in he makes a point of standing very close to her, and he’s berated her performance in front of the staff twice. She cried when she told me that. She said it was harassment.”

“What does the store manager say about her performance “That she’s average, but not in trouble. He said when he told Bob that, Bob said, ‘I know a slacker when I see one.’”

“Did you confront Bob with all this?” Susan asked.

“Yes,” said John. “He said she wasn’t meeting his expectations, and he told her so. He said she was probably making the whole thing up to divert attention.”

“Has he ever touched her?”

“No,” said John.

“Well, that’s good. I know the boss is grooming him to take over the VP for sales job once Ralph retires. Let’s just watch the situation and see what happens.”

The Analysis
Susan is about to make a big mistake. Here, a decision to “watch the situation and see what happens,” constitutes a failure to take prompt, remedial action in response to a clear complaint of harassment. That’s a good way to land in legal hot water, and it will rob this employer of one of its best defenses in the event of a lawsuit.

In such situations, it may be tempting to take a “wait and see” attitude, because it’s not clear who’s telling the truth. It’s a common “he said, she said” situation in which the employer may feel it is being forced to weigh the credibility of one employee against another. That’s not a comfortable place for an employer to be—especially where, as here, troubling allegations have been made against a valued employee.

First: Get All the Facts
No matter how conflicting the stories are, you can take some concrete steps that may help you uncover the truth. Conducting a thorough investigation is a good first step that can reveal information that will point to who is telling the truth.

In any investigation, ask the complainant if any other employees may have witnessed anything that will corroborate his or her story. Ask too, about whether tangible evidence exists—cards or notes, for example, or e-mails to the victim from the alleged harasser. Check phone records, which may reveal information about communications between the parties, i.e., who is calling whom.

In this case, I would suggest that John or someone else interview the sales clerk again to try to get more details—the who, what, when, where, and why of the situation. She may be able to provide enough additional information to cast doubt on Bob’s version of events or, at the very least, provide information that will allow the employer to conduct a more detailed investigation. If she can’t provide specifics, this may be an indication that her claims are untruthful.

Follow Through
Sometimes even a thorough investigation may not yield enough information to allow you to determine whether misconduct has occurred. That doesn’t mean it’s safe to stop there. Regardless of the investigation’s outcome, follow-through is critical. In this case, let’s assume that even after further investigation, the company has been unable to conclude whether misconduct actually occurred. Regardless, John should meet with the sales clerk to discuss the results of the investigation. She should be told that after a thorough investigation, the company was unable to conclude that the conduct complained of actually happened.

However, John should emphasize to the sales clerk that this doesn’t mean the company doesn’t believe her, only that her version of events could not be substantiated. He should encourage her to provide any other information she feels would shed more light. He should also remind her of the company’s strong stance against unlawful harassment, give her a copy of the company’s no-harassment policy, and encourage her to report any further incidents. He should tell her the company does not consider the investigation “closed” and will take further action immediately if circumstances warrant.

Finally, she should be reassured that she will not be retaliated against for having complained, and that if she feels she is being retaliated against by Bob or anyone else, she should alert company officials.

In these kinds of situations, it is often a good idea for the employer to write a brief summary of the conversation with the alleged victim and ask her to sign and date the statement. It’s also a good idea to follow up again with the alleged victim later on to ask whether there have been further problems.

Meet with The Alleged Harasser
To complete its follow through, the employer should also meet with the alleged harasser. Even if the allegations against Bob in this case are unproven, John should remind him of the company’s strict no-harassment policy and provide him with a copy. At a minimum, Bob should be required to sign an acknowledgement that he has read and understands the company’s policy. John should also remind Bob that he is prohibited from retaliating against the sales clerk and that retaliation will not be tolerated.

If, alternatively, the investigation has revealed evidence of misconduct, the company must take effective and appropriate remedial action. Terminating the harasser may be the right action but, depending upon the circumstances, suspension or a written warning may suffice.

And remember: The law does not require employers to administer the discipline the victim prefers, only what is merited under the circumstances. In other words, the punishment should fit the crime. The company should also consider arranging things so the alleged victim and harasser have little or no contact. Such action will be concrete evidence that the company took prompt action to limit the potential for future problems between the two individuals. However, employers should be careful about making changes that may adversely affect the complainant—such actions could later be characterized as retaliation if the complainant becomes vengeful.

Finally, document the entire investigation and retain it in confidential files.