You're the HR manager and an employee comes to you and says, "I'd like to report sexual harassment." You pull out your notepad and a pen and say, "Sit down, and tell me what happened." 

Moments like these are a dime a dozen when you're an HR manager. Some of them are silly. ("Jane asked me out on a date!") Some of them are easily fixed. ("John told a dirty joke during a meeting" can often be fixed by speaking to John and saying, "Don't do that again.") Some are horrifying. ("On a business trip, Henry raped me.") All HR managers hope such claims are of the first two varieties--easily investigated and rather easily fixed.

But, when it's on the horrifying side of things, several things happen. First, the company cannot legally brush it aside. It is required to investigate, in which case the accuser cannot remain completely anonymous. Second, if the company concludes that the accused is guilty of the horrible behavior, it has to make a decision as to the punishment.

The law does not require that you terminate a sexual harasser. All it requires is that you fix the situation without punishing the complainant. This can be done by sending the harasser to training and transferring him to a new position. This can be done with a suspension. This can be done with a termination. But none of these things have to happen. 

What do you do when the complaining employee accuses a senior executive of the bad behavior?

A lot of people assume that HR acts separately from the company--kind of like an outside consultant who can punish people. It doesn't. The chief human resources officer reports into the company structure just like the chief marketing officer or the chief financial officer. In some cases, the CHRO doesn't even report to the CEO, but to a VP in finance or some other ridiculous reporting relationship. So you are asking the HR manager to investigate someone she reports to.

You can imagine how difficult this is from a career perspective. These things are often delicate and not straightforward. For instance, just yesterday I read a case where "Jane" complained that "John" had sent her inappropriate text messages. She had screenshots. Slam dunk, right? Well, John had screenshots too, and Jane had initiated the sexual conversation. Without an investigation, John would have been punished for something that Jane started and actively participated in. (Further investigation showed that both of them had not limited their sexual talk to each other.) 

Even with sexual activity, you have to determine if it was consensual in the past and now is not. And if it was consensual, was it really "consensual" because the lower-level employee felt her job was at risk if she didn't sleep with the boss, even though nothing was specifically said? (See Harvey Weinstein.) 

Hire an outside firm to investigate.

Investigating your own boss, or someone else who yields a tremendous amount of power over you and the company, puts undue pressure on the HR manager. In such cases, you need an outside firm that will be paid no matter how the investigation goes. 

Decide in advance.

Would the chief financial officer consent to sign the papers to hire a consultant to investigate him for bad behavior? He'd be likely to argue that the accuser is lying or exaggerating and it's a waste of money. He may be 100 percent correct, but that doesn't change the company's obligation to conduct an impartial investigation. So it's critical that there is no one in the company who can override the decision to hire an outside firm. Set your criteria in advance for what will automatically trigger an outside investigator. For example:

  • When the accused or the complainant is a vice president or above. (A high-level accuser can also skew an investigation.)
  • When the accused is an HR employee. (Having your friends and direct co-workers investigate doesn't work for a fair investigation.)
  • When the accusation involves multiple people and multiple incidents. (You may need a specialist to sort this out.)

What do you do with the results?

Amazon did the right thing and hired an outside investigator for accusations against Roy Price, but then did the wrong thing in what it did with the information. How do I know it did the wrong thing with the information? Because it suspended Price when the accusation became public. If it had acted correctly, the issue would have already been resolved and it could have issued a statement saying, "We investigated and found X,Y, and Z and therefore we did A, B, and C." But, obviously it felt uncomfortable with the results so it preferred to do a panic suspension. (And Price resigned a couple of days later.)

Can you really fire or suspend a rainmaker?

The board of directors of Harvey Weinstein's company gave him a contract that basically allowed him carte blanche to sexually harass women as long as he paid out of pocket for the legal messes. Wrap your head around that--a group of intelligent people decided that this was the best solution.

This is not now, nor has it ever been, the best solution. There is not a single person who is so valuable that he or she should be allowed to continue terrible behavior and remain in your employ.

You can replace everyone. Even owners, managers, and the person who invented the world's best mousetrap. 

Published on: Oct 19, 2017