If you think that your workplace is immune to accusations of sexual misconduct, think again. The #MeToo movement and the disclosure of sexual misconduct allegations is affecting every industry, and all employers need to be prepared to address these difficult and sensitive issues.
With the extensive media coverage of high-profile individuals accused of workplace sexual misconduct, we have seen that reputations can be destroyed in hours and the impact on the company in question can be devastating. A co-ordinated legal and public relations strategy will be important in managing such cases.
While horror stories grab the headlines, the issue of sexual misconduct is more likely to surface in your workplace in a less high-profile way. Employees often come to their manager or to a co-worker with a confidential complaint of sexual harassment or other sexual misconduct and ask to have it addressed. So what, as an employer, should you do in these circumstances?
A critical first step in addressing such claims is often to initiate a timely and effective investigation. Employers have an obligation to ensure that claims of sexual misconduct are well founded before acting on them. Adopting a guilty-until-proven-innocent approach is a recipe for disaster when it comes to addressing workplace sexual misconduct.
It is important to act quickly. This means beginning the investigation in a timely way, but also ensuring that any interim steps that may be required are put in place. For example, should the respondent be removed from the workplace during the investigation? Should reporting relationships be altered? What, if any, communications need to be made in the workplace?
One of the first decisions to be made is who should perform the investigation. Conducting an effective investigation is a difficult skill to master, and employers should carefully consider whether they have the necessary skills in-house, or whether they need to find an external investigator. An investigator must be perceived to be unbiased and impartial, and should have the skill and experience necessary to suit the circumstances.
If you choose to do the investigation internally, ensure that your investigative process is fair, thorough and comprehensive because it will be scrutinized by the courts if the employee in question challenges any termination or other decision that is based on the results of the investigation.
A sexual misconduct investigation will normally begin with an interview of the complainant.
However, be sure to gather as much evidence as possible prior to beginning interviews and to plan your interviews ahead of time.
Preparing a list of key questions can be very helpful, but be ready to depart from any script you may have prepared as you hear the evidence or you will miss critical information.
Often a good investigative strategy is to employ a “funnel” approach to your interviews. This approach begins with broad, open-ended questions – who, what, where, when, why and how – and gradually narrows. During the second stage of the interview, the questions become more pointed and specific and are designed to pin down the details and test witness credibility. An interview should conclude with catch-all questions such as “Do you remember anything else?” or “Is there anything you wish to add?”
Keep detailed, accurate notes of interviews. Having another trusted person attend to take notes can improve the quality of the notes and allow the investigator to focus on the interview.
The most important part of a fair and reliable investigation is to ensure that the individual who is suspected of wrongdoing has the opportunity to respond to all of the allegations and all of the evidence against him or her. This is critical, and a failure to meet this obligation can result in serious consequences for employers.
For example, in Elgert vs. Home Hardware Stores Ltd., an employee accused her supervisor of sexual harassment. The accuser’s father was the respondent’s boss, and he appointed an untrained friend to investigate. The investigator approached the investigation in an accusatory manner, failed to consider all relevant evidence including the motivations of the accusing employee and, most importantly, failed to put the allegations to the accused either before or during the interviews. Rather, he used phrases like “You know what you did.”
Given the company’s failure to treat the accused supervisor with fairness and respect during the investigation, and especially given that he was denied a full and fair opportunity to respond to the accusations against him, the court found that the respondent had been wrongfully dismissed on the basis of the faulty investigation. Mr. Elgert was awarded two years’ pay in lieu of notice as well as $60,000 in damages for defamation and $75,000 in punitive damages.
Employers are well advised to get advice or assistance to ensure that they do not stumble when investigating highly sensitive and potentially reputation-destroying sexual misconduct allegations, especially in the current climate where these issues are the focus of everyone’s attention. The failure to ensure a full, fair and respectful investigative process can be a very costly mistake. •
Jennifer Russell is an employment, labour and human rights lawyer and a partner at Roper Greyell LLP. This article is for general information purposes only and does not constitute legal advice.
