FEBRUARY 2018 HR MAGAZINE 37
reason to lie? The EEOC ofers
guidelines for determining credibility.
Cole-Johnson has seen some
investigative reports that dismiss someone’s account as not
credible because of their “
demeanor.” When asked to explain,
the investigator has said the individual didn’t look them in the
eye during the interview. The average HR person is not trained
to assess that, she notes. “It’s not
the most culturally competent
thing to be doing either,” she
says, since looking someone in
the eye is disrespectful in some
While EEOC guidelines recommend that investigators examine witnesses’ demeanors,
researchers have found that
it’s actually a poor way to spot
deception, says Michael Wade
Johnson, CEO of Clear Law Institute and a former U.S. Department of Justice attorney.
Investigators primarily look for
nervousness. However, a person
may be nervous or fdgety even
when telling the truth.
may fnd it difcult to reach a
decision because they don’t understand that they’re not running
a criminal case where the standard for evidence is “beyond a
reasonable doubt,” Cole-Johnson
says. Here, the standard is “
preponderance of the evidence.” In
other words, is it more likely than
not that the incident occurred?
In one investigation, Herskowitz came down on the side of a
female contract employee who
shared with a co-worker that she
had been sexually assaulted by
a warehouse supervisor. “What
I found compelling is that she
didn’t even want this [investi-gation] to be happening. She
felt very vulnerable because of
her job,” she says. “He had every
reason to lie. She had no reason
WRITE A REPORT
While the EEOC recommends
“prompt” investigation when harassment claims are made, that
doesn’t mean you should speed
“In my mind, it’s better to do
it right than to just get through
it and have some sort of public
punishment. That should never
be the goal,” Cole-Johnson says.
“The goal is to produce an appropriate fact-fnding document or
report … Sometimes that can be
done quickly, especially if there
are only a couple of witnesses,
and sometimes that’s not feasible,” she says.
If the allegations are supported, the employer should take
immediate and appropriate corrective action, which could range
from a written reprimand to
termination of employment depending on the severity and frequency of the misconduct, experts say. Make sure high-level
employees are given the same
treatment as low-level employees for similar conduct.
The EEOC recommends that
the written report document
the investigation process, fndings, recommendations and any
disciplinary action imposed, as
well as any corrective and preventive action.
After you’ve submitted the
written report to the deci-sion-maker and determined the
appropriate disciplinary action
(if any), follow up with both parties. Tell the person who fled the
complaint that appropriate action was taken, even if you can’t
share the details for privacy reasons.
Check back with that employee regularly to ensure that
no further harassment has occurred and that there has been
no retaliation, which could trigger additional liability.
That follow-up shows the person who made the complaint
that HR took it seriously, White
says. In many highly publicized
recent cases, the alleged sexual
harassment and abuse reportedly had been an open secret
for years. After one person came
forward, the foodgates opened.
“You don’t want to be the HR
professional in your company
who has 30 people come for ward
saying this has been going on for
years,” Snape says.
Dori Meinert is senior writer/
editor for HR Magazine.
This article relates to Critical Evaluation, one
of the nine competencies on which SHRM has
based its certifcation. To learn more, visit
WHAT IS SEXUAL HARASSMENT?
Sexual harassment includes unwelcome sexual advances, requests for sexual favors,
and other verbal or physical harassment of a sexual nature, according to the U.S. Equal
Employment Opportunity Commission (EEOC). It also can include offensive remarks
about a person’s gender.
Both the victim and the harasser can be either a woman or a man, and the victim
and harasser can be the same sex. The harasser can be the victim’s supervisor, a manager in another area, a co-worker or someone who is not an employee, such as a client
Sexual harassment is considered illegal when it is so frequent or severe that it creates a hostile work environment or adversely affects the victim’s job, such as being
fired or demoted. Would a reasonable person find the conduct offensive? That’s the
standard used by the courts and the EEOC.