The Me Too movement put sexual harassment on the front pages in 2018, in response to outrage over reports involving the behavior of movie producer Harvey Weinstein. Repercussions for wider categories of harassment had already challenged workplace management for decades.
As a rule, such incidents involve offensive and unwelcome behavior based on the victim’s race, gender, religion, disabilities or age. These events usually occur in a pattern over time. There is no threshold number, and once can be enough if the misdeed is egregious enough.
Both management and employees have become hypersensitive to the risks of harassment charges, particularly sexual accusations. Both groups need to know not only what constitutes illicit activity but also what must be proved.
Assembling evidence
Employees who feel victimized start by collecting evidence to fill in the jigsaw pieces. As a manager, you may feel morally obliged to cooperate, but you should still be aware of the consequences for both the company and the team members. During any investigation, make sure any documentation is kept secure, with access restricted to only those conducting the inquiry.
Assume that both accusers and management are sincerely seeking the truth to get to the bottom of the case. Physical forensic evidence will be high on the list for establishing the facts. It may consist of:
- Witness statements with affidavits.
- Emails, text messages or comments on social media or in intra-office communications.
- Photos, taken as screenshots, or pdfs.
- Drawings.
- Audio recordings if legal in local jurisdictions.
- Inappropriate gifts.
- Medical records by doctors or psychiatrists describing any harm caused.
- Previous written complaints.
- Logs of notes made by an accuser, including timelines.
Among these types of hard evidence, direct witness testimony is often the most valuable. If the case goes to some form of mediation, this can capture an emotional connection. Since some witnesses may not have fully realized what was going on, it is useful to locate anyone who was present at the time. The sooner these people can be identified and their statements obtained, the better. They should include names, job titles, departments and contact details. Memories can play tricks; anyone can forget small details after a time delay. For affidavits, try to use an electronic device with a time stamp.
Circumstantial evidence
Sometimes an investigation must connect the dots, but the evidence can still be powerful. For example, someone in authority, like a supervisor, could negotiate with a subordinate for some benefit. It might be a raise, a promotion, a preferred assignment or a job recommendation. Or the employee might be afraid to reject the boss, for fear of demotion, termination, a negative performance review or losing a promotion opportunity. Those bargaining chips comprise what harassment law labels a “quid pro quo.”
Even without any specific sexual reference, written communications may offer a trail of evidence, permitting others to infer the scenario. For instance, invitations to drinks or dinners might be suggestive. Communications between both sides can also demonstrate the frequency or nature of their contact and relationship.
The next piece of evidence might show retaliation. If the worker turned down a dinner date, did they then receive a poor job review or lose compensation? Such tit for tat may indeed be subtle and difficult to prove directly. However, an employee may be able to show proof of demotion, undesirable assignments or a revised schedule with onerous duties.
A manager’s responsibility
It is on management to guard against condoning a harassing environment and to take measures if complaints arise. The consequences for turning a blind eye can be extensive: damages for job benefits, a lost raise and bonuses, or making up for vacation, retirement or sick pay. A company may be liable for higher compensatory or punitive penalties.
Be proactive by spelling out rules and procedures in the company handbook. Consult with your legal team to make sure you are handling such issues correctly.