Published in NH Business Review (11/20/2018)
In an ideal world, sexual harassment allegations always would be buttressed by reliable eyewitnesses and/or physical evidence (surveillance footage, text messages, etc.).
As events of the past year have made clear, however, often there is little or no objective corroborating evidence. In the most difficult “he-said-she-said” harassment scenarios—where the only evidence readily available are the accuser’s and the accused’s statements of what occurred or did not occur—how should the employer resolve the case? Is there any default rule to fall back on?
“Innocent until proven guilty” is a governing principle of our criminal justice system for a reason: fundamental fairness and due process. Without clear proof, the employer risks punishing and perhaps irreparably harming the reputation of an otherwise valued employee for an act they did not commit, simply due to a grudge, mistake, or unreasonable overreaction. In the employment context, this can have real business and personal ramifications. At a minimum, the employer risks losing the trust and respect of an unfairly punished employee, and irreparably damaging the employment relationship. Alternatively, disbelieving a complaining party and taking no action absent proof “beyond a reasonable doubt” could lead to the loss of an employee who feels the complaint wasn’t taken seriously or could dissuade others who know about the complaint from coming forward when they have an issue.
The workplace is not a criminal court. The nature of sexual harassment is such that it is often committed furtively or behind closed doors, with only the accused and the accuser as eyewitnesses. In addition, some may be inclined to believe that employees willing to come forward and run the significant risk of retaliation are likely to believe honestly they have significant misconduct to report. (In a study cited in the 2016 Report of the EEOC’s Select Task Force on the Study of Harassment in the Workplace, well over half of employees who voiced concerns about workplace mistreatment reported experiencing some form of workplace retaliation as a result.)
Given all of the above, there is no perfect “default” resolution to apply in all cases. Instead, let the following principles help guide your approach:
- Keep an open mind. Particularly when problem employees are involved, it can be hard not to speculate on an accuser’s potential motives to invent or exaggerate a harassment story: e.g., jealousy, revenge, a last-ditch effort to save themselves from a justified termination. On the opposite spectrum, some people may be willing to assume the truthfulness of any harassment accuser in the absence of clear evidence to dispute her claim. Both positions are understandable, but can get in the way of thoroughness and objectivity. Be cognizant of how the accuser’s and accused’s gender, race, national origin, language skills, age, socioeconomic or educational background, relationship to you, and/or professional status may be subtly influencing your preconceptions of whether they are telling the truth. If you are not sure you can put aside any preconceptions and be reasonably objective in your investigation, or if you have no real training or experience in conducting objective investigations, consider yielding the job to someone else.
- Focus on facts. When there are limited sources of evidence, focus on cataloging each side’s story as thoroughly as possible — including any surrounding or supporting factual details. Even if you do not have witnesses or other proof to corroborate the actual misconduct allegation, verifying (or disproving) the accuracy of peripheral facts may help you reach some credibility determinations. And pay attention – if the accuser or accused suddenly changes part of their story, note and probe that shift. Thoroughly document the fact-gathering process.
- Dig a little deeper. In normal conversation, people often report information without making any distinction between what they have heard from others, what they have surmised or guessed, and what they observed personally. Ask follow-up questions. For instance, if the accused reports that the accuser was out of the office at lunch during a particularly relevant time period, ask the accused how he knows that. This will allow you to place the proper weight on that statement, and may lead you to additional witnesses or sources of evidence.
- Know when you are in over your head. In some cases, it may be better to leave the investigation to an expert. Examples might include investigations involving allegations against a relatively high-ranking executive or human resources representative, those that involve particularly sensitive or salacious information, or those with a scope that ends up expanding significantly. Your attorney can help you decide whether relying on an outside firm that specializes in investigating difficult harassment claims is appropriate under the circumstances, and if so, can refer you to and help manage a relationship with that firm. (Allegations involving a violent crime, like an attempted rape or assault, should be referred to the police in consultation with the reporting employee.)
- Don’t forget training. An ounce of prevention is worth a pound of cure. Educate employees early and often on what harassment is, how to avoid committing it, and the consequences for engaging in it, as well as on reporting procedures and non-retaliation policies. Employees who are repeatedly and accurately instructed on what does and does not constitute sexual harassment are better equipped to police their own behavior and to accurately assess whether wrongdoing has occurred.
Remember than an investigator can and should make credibility determinations and look for ways to determine whose story makes more sense and is more probably correct. There are many types of corroborating or mitigating evidence which can lead one towards a reasonable conclusion. To be sure, there may be scenarios in which no factual determination can be made, but, in reality, those circumstances are rare; and it benefits the entire workforce, not just the alleged victim and the accused, for an investigator to put the time and effort into “getting it right.”
Rachel Adams Ladeau is an attorney in the Litigation Department and Employment and Labor Practice Group at McLane Middleton, Professional Association. She can be reached at email@example.com.