A director in your organization (Bob Smith) informs you that he has just received a verbal complaint from an employee (Anne Wilson) that one of his direct reports (a manager, John Jones) has engaged in sexual harassment. More specifically, Anne alleges that within the last year:
- Her manager (John Johns) continually asked her out after work for drinks (even though she refused him several times).
- John was sexually suggestive to her in the way that he complimented her looks and her style of dress.
- Many male employees in her group tell sexual jokes in her presence and on several occasions have shown sexually explicit cartoons and pictures to other male members of the group.
In addition, Anne claims that her manager is now retaliating against her for rebuffing his advances. She recently received a poor performance review and did not get an increase in pay even though she feels her performance was above average.
Part 1 - Initial Questions
- Is an investigation merited?
- What company policy, guideline or procedure may be relevant?
- How should you prepare for the investigation?
- To whom should you speak?
List the people to whom you want to speak, in the order you wish to speak to them.
Part 2 - Bob's Statement
In your discussion with Bob Smith, the director who reported Anne's problem to you, Bob tells you the following:
- In his opinion, John Jones probably did what Anne said he did. Bob feels this way because:
- John was divorced approximately eight months ago.
- John has made several lewd remarks to him (Bob Smith) about a couple of other female employees in the department within the last several months.
- Several male employees have joked that John is always bragging about his "conquests" on the weekends.
- Bob feels that Anne is "asking for it" because of her behavior. According to Bob:
- Anne is dating at least two male employees in the department.
- You can see "from here to Bakersfield" when she sits down because her skirt is so short.
- Anne uses the "F" word as a noun, adjective and adverb.
Questions
1. How should you respond to Bob's comments? What additional information, if any, do you want to get from Bob?
Does he have any knowledge of Anne's performance? Has he observed or documented any problems? Has John previously discussed Anne's performance with Bob?
Has Bob heard other employees joking? If so, whom, and what was the nature of the jokes or remarks? Has he counseled or disciplined anyone?
Has anyone else complained to Bob about John, about other employees?
2. What additional policies, guidelines or procedures may be relevant? Is there a company policy that prohibits employees dating? Do the other employees supervise or report to Anne?
3. What facts did Bob tell you that appear to be most relevant?
John's remarks to Bob and other employees about women or conquests may be indicative of his attitude.
Anne's language may be a defense to any complaints about jokes or remarks.
4. What facts, if any, are not relevant?
After completing your discussion with Bob, whom should you speak with next? Anne.
Part 3 - Anne's Statement
You call Anne in for an interview. When Anne comes into your office, she is dressed in jeans and a New York University sweatshirt. After Anne sits down, you tell her that her director has brought her problem to Human Resources for investigation. You tell her that you will be handling the matter and that you want to get all the facts before making any decisions about anyone. You confirm with Anne that she feels you can be objective and impartial. Before you continue, Anne asks what Bob Smith said.
What, if anything, should you tell Anne at this point?
Don't taint Anne's response. Ask her about her complaint. What Bob said is not relevant to her response.
Should you ask Anne a set of detailed questions, or should you just ask Anne to relate her problem to you in as much detail as possible?
In response to your questions, Anne tells you the following:
- Within the last six months, John Jones has asked her to go out with him after work eight times (Anne kept a diary of this activity). She has recorded the exact time and date of each request.
- On the last occasion, (two weeks ago) when Anne told John "No, and please don't keep asking me," John replied, "What's the matter with me? You go out with all the other guys in the department!"
- Anne says that on several occasions, John told her that she looks "like a stone fox," and that she makes it "hard" for him to concentrate on his job. She said that the way he put the emphasis on "hard" was sickening.
- Anne tells you that while employees don't tell her any sexual jokes, she can't help overhearing the comments from cubicle to cubicle. She says that two of her coworkers, Larry and Darrell, are always showing cartoons and pictures to each other. She once found a picture of a couple having sexual intercourse that was left by accident on the photocopy machine.
- Anne tells you that her friend and co-worker, Bonnie, has been the subject of John's comments and the butt of sexual jokes by other employees. She says Bonnie just laughs it off and says that's the way men are. Anne, however, says she does not think it's right that Bonnie has to put up with this kind of behavior.
- Anne tells you that her mother has encouraged her to go see the family lawyer, but that she doesn't want to make trouble. All she wants is "the sexual stuff to stop."
- She says she feels John should be terminated because he has poisoned the environment so much that she doesn't think she can continue to work with him.
Questions
What additional information, if any, do you want from Anne?
Were there any witnesses? Did Anne tell anyone else about John asking her out? If so, who?
How should you respond to Anne at this point in time?
Follow your company's closing process. Also, ask for a copy of Anne's diary.
What should be your next step?
Document the interview and decide who to interview next.
Part 4 - John's Statement
You decide to interview John. When John comes to your office, the first thing he says is "What's going on?"
You tell John that one of his employees has raised an issue of sexual harassment concerning him.
John's response is "WHAT?! Who the hell would do that?!" John then asks you a series of questions. What should your response be to each?
Who did this?
Anne didn't ask that you keep her name confidential. However, you may want to start by asking John if he has asked any of his employees for a date. If he denies doing so, then ask about Anne.
What exactly has been said?
You will have to reveal the details of the complaint in order to get John's response.
Did his director speak with you?
Yes, you have talked to his director.
What exactly did the director say?
What his director said is not important. The investigation will focus on the complaint against John.
Did the director think John sexually harassed anyone?
What his director thinks is not relevant. You are interested in getting the facts - from John.
After you tell John the specifics, his response is "BS! It's all BS! Anne is just making this up because she's on the verge of being terminated." John tells you that Anne's performance has really declined during the last six months. He says he thinks Anne is taking drugs, but "who knows?"
At any rate, he tells you that he is "into a happy relationship" with a woman he met about a month ago. He says that his life is finally turning around after a very painful divorce. He again denies all of Anne's claims and says he hopes none of this is going to be put into his personnel file because people will think he is guilty even though he didn't do anything to anyone.
Questions
How should you respond to John's statements?
What questions do you want to ask John at this point?
Has John documented Anne's decline in performance? If "yes," you'll need a copy of the documentation. On what does he base his remarks about Anne taking drugs? Has anyone else voiced this suspicion? How long has John been in this "happy relationship?" (Only since the time Anne last documented that John asked her out?)
At the end of the interview, John asks who else knows about this. Should you answer John's question? If so, what should you say?
Emphasize confidentiality and need-to-know basis.
John then asks whom else you intend to speak to about this matter. How should you answer John's question?
Ask John if there is anyone else he thinks you should speak to.
Whom should you speak to next?
Any witnesses or other people identified by Anne and John as having pertinent information.
Part 5 - Larry and Darrell's Statements
You next decide to interview Larry and Darrell, the employees mentioned by Anne.
What information should you provide to Larry and Darrell?
They have not been mentioned as having knowledge of any sexual harassment of Anne by John. Focus on the complaints of sexual jokes and pictures. Do you have reason to believe that Larry and Darrell may have overheard any comments made to Bonnie by John?
What questions do you want to ask Larry?
What questions do you want to ask Darrell?
You call Larry into your office first. Larry tells you that the guys do tell jokes from time to time, but that he has never told a joke to Anne. He says it's possible that Anne may have overheard someone telling a joke, but that she has never spoken to him about it. With regard to sexually explicit pictures, Larry tells you that he and a couple of guys were passing around a copy of a magazine's swimsuit issue, but that's about it.
Are there any follow-up questions you want to ask Larry?
What about sexually explicit photos or cartoons?
You then speak with Darrell. Darrell confirms everything Larry said. He says he does remember the magazine swimsuit issue. In fact, it was his copy. He said that he remembered that Anne did see him and Larry looking at the magazine and said that they were "wasting their brains looking at trash." He said that Larry commented that Anne "was just jealous." He thinks Anne heard the comment. Darrell says that he has never told Anne a joke, sexual or otherwise. He said he heard Anne was dating someone in the department, but he wasn't sure whom.
Is there any additional information you wish to get from Darrell?
Has he overheard any remarks of a sexually explicit nature made to any employees? If so, who made the comments and to whom were they made?
Who do you wish to speak to next?
Part 6 - Bonnie's Statement
You next decide to speak with Bonnie. Bonnie gets to your office and before you can say anything, she tells you that she doesn't want to get involved. Bonnie says that Anne is "just a little too sensitive for her own good" and that maybe she should work someplace else. She says that she (Bonnie) is very happy here and that she likes all of her co-workers. She especially likes John, who she says is a lot more "fun" than the "old fogey" that supervised her on her last job. She says she doesn't want to get anyone in trouble so she would rather not say anything about anybody.
Questions
How should you proceed with Bonnie?
Bonnie has indicated willing participation in the jokes and kidding around. However, if willing participation was at issue, the investigator should determine whether the subject's conduct is or is not consistent with the subject's claim that the conduct is unwelcome. 1
What should you say to her?
Emphasize that Bonnie may help someone not get in trouble.
What investigative skills should you use to get information from Bonnie?
Why is it necessary to investigate the claims Anne made regarding what was happening to Bonnie?
If Bonnie admits that what Anne says is true, it reflects positively on other statements made by Anne. If jokes and comments of a sexual nature are being made, you must put an end to it now. Letting it go could increase the company's liability for future claims of hostile work environment. You must take action if warranted. Consent and participation is a defense to future claims by Bonnie. But are there other employees who might find the behavior offensive, and have not yet complained?
Part 7 - Investigation Results
Based on this information, what action would you take? Why?
What action would you take to train managers and employees, especially:
- Bob Smith - Anne is "asking for it."
- Bonnie - Anne is "just a little too sensitive."
Warning
If Bonnie later complains about sexual harassment, what action would you take? Remember, her conduct (by her own admission) has been consistent with welcoming the conduct. For Bonnie to complain now, she must have indicated to any of the sexual harassment participants that she no longer welcomes the conduct and wants it to stop. Simply ceasing to participate is insufficient to show that the continuing activity or conduct is now unwelcome. 2 Occasional use of obscenities or telling of sexually explicit jokes does not indicate that more extreme, abusive or persistent comments are welcome. However, physical assault or quid pro quo harassment would not be excused because of prior conduct.
Similarly, Anne's consensual relationship with two other employees has no relevance to the alleged harassment by John. The question is whether the conduct by the harasser was welcome or unwelcome. 3
1. EEOC, Policy Guidance on Current Issues of Sexual Harassment (Mar 1990)
2. Loftin-Boggs v. City of Meridian, 633 F. Supp. 1323
3. EEOC, Policy Guidance on Current Issues of Sexual Harassment (Mar 1990)