If an employee approaches you with concerns that he or she is being illegally harassed, are you prepared to have that conversation? Would you know what to do? If you are a manager, the odds are that your company's harassment policy requires you to report the complaint to the human resources department because HR will conduct the investigation. That's smart. But that doesn't help you get through the initial conversation.
If your first reaction to the employee is that he or she should take the complaint to HR, there's a good chance that the employee will not go. After all, the employee chose to approach you instead of HR. Employees are not necessarily comfortable coming forward with such serious allegations and the fact that the employee chose to approach you usually indicates some level of trust. If you send the employee away, the opportunity to find out if something inappropriate is happening may be lost. That doesn't help the employee, you, or the company. So best practice is usually to have the first conversation and then get all the information to HR. And that's true regardless of whether the employee is part of your department or another.
Here are some tips on how to handle the first conversation:
- Make time immediately to talk to the employee in a private space where you cannot be overheard. If you put off the conversation, the employee may not want to talk later and you may have signaled inadvertently that you do not care about what he or she has to say.
- Thank the employee for coming to you and invite the employee to talk.
- Let the employee engage in a narrative and do not interrupt.
- Do not ask judgmental questions or try to offer an explanation for the conduct the employee is complaining about.
- Write down everything the employee says as he or she is saying it. If taking notes during the conversation is making the employee uncomfortable, try to explain that you want to make sure you get everything down. If that doesn't work, take notes the minute the employee leaves.
- Your notes should reflect exactly what the employee said and exactly what you said. Do not editorialize or characterize what he or she said or did.
- Explain that you cannot keep the information confidential because the company is obligated by law, company policy, and the company's culture to look into the allegations. You can also explain, however, that the information will be shared only on a "need to know" basis.
- When the employee is done, it is sometimes a good idea to read your notes back to the employee and ask if you got it right and if there is anything else the employee wants to add. Then write down that you asked those questions and the answers the employee gave you.
- Explain that an investigation will be conducted and that HR will likely be in touch shortly to talk with the employee.
- You can offer to include HR in the conversation but if the employee hesitates to talk if HR is present, finish the conversation without HR and then contact HR as soon as the employee leaves.
- Explain the company's policy against harassment. If you have time, print it and give a copy to the employee.
- Explain that the company prohibits retaliation and tell the employee that if he or she believes they are being retaliated against, the employee should tell you or HR. Remember, the phrase "believe you are being retaliated against" is important -- just because the employee believes there is retaliation does not mean it is true. But the company would want the ability to look into it.
- Tell the employee that someone will get back in touch with him or her soon to talk about the next steps.
Remember, either federal, state, or local law requires most employers to investigate allegations of harassment regardless of whether it is based on sex, race, color, religion, or any other protected category. The conduct may be occurring, or it may not. Or perhaps it did take place but is not illegal. It may be inappropriate nonetheless and the company has an interest in putting a stop to it. Regardless, all employers have an interest in fostering a healthy and supportive work environment and how you react to an employee who comes forward will be a critical factor in how the issues get resolved and how the company and you are perceived.
Review your company's harassment policy to make sure you are familiar with it. Share it with your employees so they know how the complaint process works. Work with your human resources department to address any issues of harassment and cooperate with counsel if legal advice is sought. Your reputation and the company's depend on your professional handling of the situation.
Be sure to read the related article Manager's Guide to Receiving Harassment Allegations: What Not to Do.
Barrie Gross is former Vice President and Senior Corporate Counsel (Employment Law) for an international Fortune 1000 company and is a regular contributor to AllBusiness.com. She is the founder of Barrie Gross Consulting, a human resources training and consulting firm dedicated to assisting companies to manage and develop their human capital. Visit www.barriegrossconsulting.com to learn more about Barrie and the services BGC provides.
Note: The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal issue or wish to obtain legal advice, you should consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site or in this article establishes or should be construed as establishing an attorney-client or confidential relationship between you and Barrie Gross. This article is provided only as general information, which may or may not reflect the most current legal developments or be complete.