No Witnesses

One of our employees went to her boss complaining about her male co-worker speaking innapropriately to her, referencing his sexual antics, inviting her and her friends to "get kinky" with him. Well last friday he went as far as to question her about oral sex and invite her to, er, well, you can probably gather what. She only came to her supervisor about this yesterday and they came to me immediately. Obviously this is beyond the pale (anyone know the origins of that phrase?)and I want to terminate immediately. The managers are with me but are concerned that there were no witnesses to any of the aforementioned. Her supervisor doesn't feel that she has any hidden agenda. I feel comfortable moving forward. What do you guys think?
Deez

Comments

  • 15 Comments sorted by Votes Date Added
  • I'm not so sure I'd terminate him without a full investigation. What does your policy state? Is sexual harassment grounds for immediate termination? Massachusetts is an "at will" state so I suppose you could terminate him for no reason but if you're using the sexual harassment as the reason you need to try to determine whether it actually did happen. Unfortunately, most of these cases do not have witnesses but you never know, he may have done this to somone else and there's your corroboration.
  • As her employer you have an obligation to conduct a prompt and thorough investigation into the incident and take prompt and effective steps to stop the harassment, if any occurred. You should definitely investigate, hear both sides of the story, and find out from both people if there are any witnesses (or alibis!). Then you can decide what action would stop the harassment. He might say it was "welcome" and if that is the case, you might be better off with some training for the entire department, a final written warning for him, and regular communication with her to be sure that nothing else happens. And you may want to transfer him to another department if you conclude that something happened but you don't know what and you simply want to separate them to avoid future liability. Since he is a co-worker, if you take those steps to be sure that it doesn't occur again, you have a good defense to any future claim of sexual harassment. Training is definitely in order.
    Good luck.
    Susan Fentin
    Associate Editor, Massachusetts Employment Law Letter
    [email]sfentin@skoler-abbott.com[/email]
    (413) 737-4753
  • Just had another conversation with management. They are very uncomfortable with a "he said, she said" termination. Unfortunately the alleged victim insists on remaining anonymous which further complicates the issue. What are our obligations in keeping her anonymous. I need help quick, he is coming in at three today.
  • She can't keep her identity unknown to her accused. You must investigate whether she likes it or not. If you don't, then you are responsible for the offending employee. Investigate now.
  • You are absolutely correct. You cannot guarantee absolute confidentiality in these cases. In any event, the "accused" would have to be a fool not to figure out who reported him.

    "He said, she said" sitations are very difficult to prove. What generally happens (but not always!) in these cases is that two people start kidding around
    about stuff and the conversation eventually gets out of hand and degenerates into something that the "accuser" may did not intend to get into. The accused might have thought since the conversation had already been started, that it was okay to proceed with the "proposition" stage of the conversation. Is this acceptable in a workplace. No way!! But these are the types of things that happen.

    I would do a full investigation and get the scoop on what the story was - how these conversations got started and who started them. I would emphasize to the accused that his comments were TOTALLY unacceptable in the workplace even if he felt the behavior was welcome. I would go back to the accuser and advise her that you had investigated this matter and had made it clear to the individual that this was unacceptable behavior and if it happened again, he would be terminated.

    I would reiterate to both individuals the importance of keeping conversations on a professional note and stopping the conversation when it deviated from what is acceptable, normal interaction between individuals at work.

    Unless the accused just simply said "I am a oversexed jerk preying on unsuspecting females on purpose and unprovoked",it is difficult to prove what really happened here.
  • Did you promise to keep her identity a secret? If you can't disclose to the harasser who is making the complaint, I would not proceed with termination. The accused has a right to know who is charging him with harassment. I would hope he could figure it out, however he may be harassing more than this person. As far as discpline is concerned what does your policy say? If the charges are true, I would use the strongest discpline my policy allowed short of termination. Send a strong message that your company does not tolerate this type of behavior!

  • >Unfortunately the alleged victim insists on remaining anonymous which further
    >complicates the issue. What are our obligations in keeping her
    >anonymous.

    This brings up an interesting issue. How much input should the alleged victims have in the process? The answer is none. You should let her know immediately that once the ball starts rolling down hill it rolls on it's own accord. The process moves forward regardless of what the victim wants.





  • Oftentimes "he said - she said" situations boil down to credibility. Does the accused have a "reputation" or has he been squeaky clean the whole time? Does the accuser have other motives that should be considered? Termination just based on the accusers side of the story is not the correct thing to do. After you have talked to the two parties, then you need to evaluate whether or not you need to investigate further. If the accused admits to the conduct, then you have to decide whethr of not to terminate or have a lesser form of discipline. If he denies the conduct then you need to decide if you need to talk to others. Remember that the mere talking to others will impact the reputation of the accused, whether he did the deeds or not, and you have an obligation to him as well. If you decide that you cannot terminate tell the accuser that while you understand her concerns you have obligations to protect both parties and you cannot terminate the person based only on an accusation that has been denied and tell her to come to see you if there are any other problems. Then tell the accused that you can't prove anything either way but if he did, don't let it happen again or he will be out the door so fast that no one will see him go.
  • [font size="1" color="#FF0000"]LAST EDITED ON 07-22-03 AT 09:58PM (CST)[/font][p]As part of my practice, I am often brought in to do an independent investigation in these types of situations. (I suppose my pre-lawyer days as a journalist has helped with that.) One thing that I have found is that the he-said she-said situations are not always as difficult to sort out as people think. One little war story...

    Company brought me on to do investigation. It was clear from the start that the company was very skeptical of the allegations, which were made by a terminated employee and her best friend (who also worked for the company and who quit after her friend was fired). The accused employee was one of the company's "golden boys." The accused employee denied everything. Sat across from me and showed me pictures of his wife and children. He seemed to be so genuinely saddened by the accusations. In retrospect, he was one hell of a performer.

    I ended up calling a former employee, who had recently left the company on good terms. Asked her if I could talk to her about her former manager. There's a strange silence and then she says, "You want to talk about the slimeball? I'd love to talk about the slimeball." Apparently, on day one, "golden boy" pushed her up against a van, stuck his tongue in her mouth, etc., etc. She was bigger than him and slammed HIM into the van. She proceeded to tell him that she believed in second chances and that this was his but that if she ever, ever, heard that he had tried this with some other women, she would fry him.

    On my recommendation, company ends up (grudgingly) firing the guy. Two weeks later, I get the most grateful telephone call. Turns out that "golden boy" got another job pretty quickly and, within two weeks, had been accused by three employees at the new company of sexual harassment...

    Anyway, all of this is to say, as some others have, that a thorough investigation can sometimes ferret out information even in a classic he-said/she-said situation.

    Good luck Deez!

  • Deez: You have lots of good recommendations here. Susan and Crout sum it up well in my opinion. There are quite a few 'How To Conduct An Investigation' booklets, even texts, out there, perhaps some right here on this site that someone can point you to. In all of them that I've seen, you will have a pretty clear roadmap for your legal obligations, how to proceed, on what basis, in what time frame, involving whom, saying what to which parties, reaching conclusions, giving appropriate feedback, taking action, documenting your investigation and filing it away. Never should we promise any level of anonymity or fire someone based solely on an unsupported allegation, at-will or not.
  • I agree that we should not discipline on just one person's accusations. Unfortunately the supervisor who she had initially informed of his behavior brought the guy into my office yesterday and closed the door, which immediately put him on notice that something was up but I just told him that something had been brought to management's attention and we needed to further investigate.We had told the spvr. not to do anything at all but I think the situation was completely freaking him out and he just got flustered. What I had wanted to do was talk to her before ANYTHING was done to see if she was willing to give up on the ananonimity (sp?). I had been calling her yesterday to see what she would do but didn't get ahold of her until this morning when her shift started.
    I told her that we couldn't go forward without her cooperation. I decided to bite the bullet and told her that he had an idea that something was going on.
    Well she agreed to go forward and we will be meeting with him today.
    Ugh this is sticky and I can't shake the feeling that I am doing everything wrong. This is the third harassment allegation I have dealt with but all the others had witnesses etc.

  • Witnesses notwithstanding, we cannot decide to 'not proceed' if the employee cannot be bargained with to 'give up on the anonymity' piece. Once it reaches our attention we are obligated, period, with or without the complainant's acceptance of anything at all, and without allowing her/him to impose conditions, such as anonymity. As soon as the word is mentioned, if it is, I immediately state our requirements.....to proceed with a company investigation of the complaint, period. And I would tell them immediately that anonymity cannot be guaranteed, and in fact, will, insofar as is possible identification of the complainant will be revealed only to others on a need to know basis. But, that WILL include the alleged offender and in some cases a very few others.

    Another thing that always chapped me, in a union situation, was that, right out of the chute, the union rep had to be included in sit down pieces of the investigation. That was always the source of leaks, but we cannot exclude the union representation, even in sensitive investigations like this.
  • Again, THE VICTIM IS NOT PART OF YOUR PROCESS. You should NOT be bargaining with the victim over issues of anonymity. What's next? Will you then bargain over the appropriate disciplinary action as well? Take her statement, tell her that appropriate action will be taken and move forward with your investigation.
  • [font size="1" color="#FF0000"]LAST EDITED ON 07-23-03 AT 01:38PM (CST)[/font][p]I agree with Crout. Most sexual harassment policies that I've seen have a clear process. The victim needs to tell the harasser to stop and that they are uncomfortable with the situation. If it continues, then it needs to be brought to the attention of the supervisor and HR. Then follow progressive diciplinary action. I dealt with a similar, situation. There were no witnesses, or so the "victim" thought. The victim accused a co-worker of harassment. During the investigation the alleged harasser stated that the "victim" had intiated the conversation and he said he had a witness. He did. It was a female co-worker that sat across the hall and she said she heard the entire conversation. The "victim's" motivation was never discovered.
  • I agree with all the advice here, and especially with Crout. Having dealt with several harassment claims, mostly of the sexual nature, once I hear of a complaint I always perform an investigation. You control the situation, not the accuser nor the accused. Ask yourself, what happens if I ignore the complaint based on the victim's desire for anonymity and something actually happens down the road. The victim now hires a lawyer or reports you to the DOL. You are immediately put on the defensive for not providing adequate protection to an employee.

    All our supervisors and managers are trained to immediately inform me of any harassment complaints and they know I will investigate. Usually, more comes out of the woodwork than what appears on the surface.
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