Five things you need to know about harassment investigations

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When HR professional Morgan Endral transitioned into a senior role in her nonprofit organization, she discovered she had inherited an unresolved harassment complaint lodged by a female executive assistant against her male supervisor. In it, the assistant claimed that her supervisor failed to look her in the eyes when he addressed her, consistently left her out of meetings, and always spoke to her in a harsh tone. On the surface, the complaint appeared straightforward, but it wasn’t. Ms. Endral may not have known that, though, had she not made the smart decision to conduct an independent investigation, which revealed important information.

It turned out that as an immigrant to Canada, the supervisor regularly avoided eye contact with women as a sign of respect, his tone sounded harsh because he had not yet learned soft skills distinctions of communicating in English, and the meetings he excluded the assistant from were confidential in nature. As a result of these findings, the independent investigator recommended coaching to help both parties to understand each other better and work together more amicably, a measure that was not being considered before a proper investigation.

Interpersonal conflicts and misunderstandings happen in every workplace, but in the wake of the #MeToo movement, there is an escalation in complaints and greater pressure on Nonprofits to address them in a meaningful and proactive way. That’s tricky to do because too often, workplace dynamics and politics become as contentious as the complaint itself.

Understandably, HR or other leaders can start to feel overwhelmed and vulnerable to internal criticism as the nuances of harassment complaints unfold. They find themselves navigating new terrain in managing problems that used to be dealt with quietly and internally, if at all. Gone are the days when nonprofit organizations could look the other way or just encourage everyone to “be nice,” “take the high road,” shake hands and make up. It is now common practice to hire an independent investigator, who can operate outside office dynamics and politics, to look into harassment complaints, and best practices are emerging as a result.

It’s the law

The cultural tide is shifting on the harassment front, sparking new legislation and more litigation. Thanks to Bill 132, an amendment to the Ontario Occupational Health and Safety Act, organizations are required to have a “written program” outlining how workplace harassment complaints will be appropriately handled. The new Bill C-65 will soon place stiff requirements on how federally regulated nonprofits should manage and prevent harassment.

Courts are coming down hard on employers for improperly conducted investigations. A recent Ontario Court of Appeal judge found that an employer’s internal staff investigator was “utterly deficient” with “no experience or training in conducting workplace investigations.” The complainant was awarded 10 months of reasonable notice, along with $85,000 in damages. As well, the organization received significant negative press for its maltreatment of the employee and mishandling of the investigation.

Nonprofits are especially vulnerable to events that can tarnish their image because funding depends on a pristine reputation.

Make sure it doesn’t happen to you

The last thing anyone wants is a harassment complaint contaminating a positive work environment. How can you do your part to ensure a proper and efficient investigation as well as prevent future complaints? Just follow these steps.

1. Keep it confidential. By the time the investigation process has begun, the requirement that the complaint be kept confidential may well have been breached. That’s because at most organizations people work in close quarters and can’t seem to help but talk, or whisper around the water cooler. While spreading the word may seem innocuous, in harassment cases, confidentiality must be respected. Leaking a story compromises the investigation by fueling rumours, tarnishing reputations, and tainting witness credibility.

2. Be timely. If an investigation is warranted, you need to get on it — fast. Otherwise, you may find yourself with an even messier problem on your hands. The longer harassment goes on, the more likely it is that someone will get harmed, confidentiality will be breached, people will start taking sides, and the organization will be held accountable for exacerbating the conflict through delay. By handing the complaint to a neutral third party, you get the problem off your plate, reduce further risk to the organization, and avoid allowing a backlog of complaints to pile up.

3. Appreciate the opportunity. An investigation is a golden opportunity to fix what’s not working in your organization, so view it as a valuable learning experience. Of course, it’s human nature to feel defensive when we’re told we’re not running the ship perfectly, but the goal here is not perfection; it’s improvement. Good investigations don’t just focus on problems. They offer solutions that improve the work culture by preventing incidents from happening again.

4. Get the right training. The best way to head off harassment is to make sure everyone, at all levels of the organization, understands what behaviour is appropriate and not appropriate at work. That means putting into place not just proper harassment procedures but also making sure that training is mandatory, clear and accessible to all employees and leaders. However, not all training is created equal. Just because you have ticked off this box by downloading a white paper doesn’t mean your staff is properly educated.

5. Consider the cost. Proper harassment investigations that will stand up in court take time, skill and insight to be effective in generating lasting change. A legitimate business expense, external investigations conducted by educated and experienced investigators specializing in harassment, are worth every penny because they protect you from risk, save time and money while protecting you from liability and bad press. And then there are those “hidden” costs: sick days, mental health leave, poor performance, and low morale.

Research shows that today’s employees demand a healthy, respectful work environment where they can reach their potential, and Nonprofit leaders play a crucial role in making that happen. By engaging psychologically and legally sound harassment investigations, you will not only lower the incidence of workplace harassment but also help to enrich your Nonprofit’s company culture, setting it up for both short and long-term success.

Workright Investigations Ltd. is a premium full-service harassment consulting firm. Co-founders Randi Chapnik Myers, LL.M., Dr. Stephanie Bot, C.Psych. and Donna Marshall, M.A. address workplace conflicts from a unique psycho-legal perspective and provide resources to help organizations create healthy work environments, avoid harassment and limit liability. Contact them at info@workrightinvestigations.com.

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