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When Sexual Harassment Involves HR Employees
Investigating when complainants are in HR, or accused is HR boss

By Tamara Lytle  6/25/2014
 

Sexual harassment complaints are tricky enough. But, when any of the people involved are HR employees, the situation can get really complicated.

How does the department investigate when the complainant is someone they eat lunch with every day? Or when the alleged perpetrator is the HR boss?

“We have to be held to a much higher standard of behavior,” said Cornelia Gamlem, SPHR, author of The Big Book of HR (The Career Press, 2012) and president of GEMS Group, a northern Virginia HR consulting firm.

How to handle harassment complaints involving HR employees depends on the size of the company, whether the accuser or the accused—or both—work in the department, and other factors.

“If you’re talking about a big company, there’s always someone else who can be called in who can be objective,” said Gamlem, who worked in a corporate headquarters where she sometimes was dispatched to business units to investigate complaints. “I could act in an unbiased manner; I didn’t know all the players.”

In a small- or mid-sized company where “people tend to know everyone else, you want to bring someone in from the outside,” she advised. And the shared services model means that even bigger companies consolidating their HR functions sometimes have a harder time finding someone objective in-house.

When the alleged harasser is the boss, or both people involved in the complaint work in HR, it’s definitely time to get outside help, Gamlem said.

Larger companies often have policies about where to take a complaint if employees can’t go to their supervisor or to the HR department. So should all companies, said Deborah C. England, a San Francisco attorney who represents employees.

“An employer should want to know if harassment is going on so they can step in quickly,” said England, author of The Essential Guide to Handling Workplace Harassment and Discrimination (Ingram, 2012).

If there’s no policy, she advised people who can’t go to HR—such as those whose cases involve HR employees—to “take it up higher on the food chain.”

If a complaint ends up in court, a company will need to show it addressed the problem after an objective investigation, whether that’s done by the HR team or someone from outside, said Mark Flynn, a Denver attorney who heads specialized legal services for the Mountain States Employers Council.

“The law really requires the employer exercise reasonable care, which is reflected in a neutral investigation process,” Flynn said. The U.S. Equal Employment Opportunity Commission requires that the investigation be prompt, impartial and thorough.

Having an HR person involved can change more than the logistics. Alexandra Bodnar, a shareholder at Ogletree Deakins in Los Angeles who specializes in litigation defense counseling for employers, said complainants from HR tend to be much more familiar with how the process should work. On the upside, they often are less angry at the company and just want to stop the person. “They’re more practical,” she noted.

But on the downside, they can be more sophisticated in how they present the complaint and may have more knowledge about how other cases were settled, Bodnar said.

And when the complaint is against an HR leader, she said, “you’d be less likely to just send the manager to training. They’re demonstrating they are unqualified for the [HR] position.”

Hiring outside help for the investigation brings objectivity and expertise to the process, Flynn said. But it also means losing the institutional knowledge of having the company’s own HR department handle it.

The number of contractors available for such investigations has skyrocketed, Flynn said.

So where do you find help from outside HR?

-          Companies with employment attorneys on staff can use them to investigate.

-          Outside legal counsel can be called. Flynn said, however, that lawyers aren’t always the best investigators because they worry about legal angles instead of sticking to investigating facts.

-          Third-party investigators who specialize in harassment fact-finding are increasingly available. Employment law firms can offer recommendations on finding one. So can the Association of Workplace Investigators.

When deciding whether to look for outside help, Bodnar said, ask “is the person investigating the case able to be neutral?”

Tamara Lytle is a Washington, D.C.-based freelance writer.

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