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As workplace investigators, we notice time and again how organizations and workplaces feel the ripple effects of bigger societal movements. The power of movements like #MeToo is that they permeate beyond headlines, making individuals rethink encounters or feel ready to disclose something they long ago relegated to the back of their minds. For employers, this can result in receiving complaints of historical sexual misconduct about current or former employees. Below we will discuss some considerations and challenges when faced with these types of allegations.
First off, what to do? From our experience, ignoring historical allegations of sexual misconduct does not typically end well for an organization. While it could be easy to simply brush off such allegations as dated or with more cynical attitudes of “What’s the point?”, we would argue that, apart from any legal obligations that might apply, inquiring further into these types of allegations is quite simply the right thing to do. Further investigation could not only potentially assist in being restorative or providing closure for the victims of the abuse, it can also highlight larger cultural issues within an organization that need to be addressed.
That being said, this does not mean that an inquiry into historical allegations will be easy. With very dated allegations, the respondent may have left the organization, with little motivation to participate and nothing that the organization can use to compel them to do so (and in some cases, may even be deceased). While the lack of a participating respondent can be a challenge for investigators, findings can still be reached where the balance of probabilities standard has been met. A credible complainant and/or corroborating evidence can be enough to meet that standard of proof and make findings.
The passage of time and its impact on the memory of parties and witnesses can also create challenges for an investigator. Interestingly, while the passage of time is most often associated with reduced recall, from our experience, complainants and witnesses who have suffered a traumatic event or been witness to one often have certain aspects of the event burned into their minds and can recount these aspects of their experience with a surprising amount of detail. This can often be a compelling factor when assessing their credibility. Regardless of the time that has passed since the incident (in some cases, it can be 30 or 40 years), the retelling of the incident can nonetheless be traumatic, and such interviews should be conducted with the same trauma-informed approach one would use with any other complaint of sexual misconduct.
Organizations should also be prepared for the fact that investigations into historical allegations of sexual misconduct may unearth other allegations of similar behaviour, especially if the initial allegations or the fact of an investigation have been made public. While it may be overwhelming for an organization to be faced with an onslaught of complaints, it also presents an opportunity for an organization to reflect on its own practices and “get it right” going forward. In these instances, employers could consider conducting individual investigations into sexual misconduct alongside a wider, systemic review. The benefit of a wider review process is that more anonymity or confidentiality protections could be offered to participants than would otherwise apply in a traditional investigation process, thereby making participants more comfortable to participate. You can read more about systemic reviews and assessment processes here and here.
When we have conducted systemic reviews into sexual misconduct in the past, we have encountered a wide range of emotions from members of the organization, including at times resistance, skepticism, or mistrust. We encourage organizations who are contemplating a wider systemic review of these issues to do so with humility (what you hear may surprise you), and to the extent possible, be transparent in communications with members of your organization. Transparency — including with respect to the outcome of a review and the planned approach for addressing any concerns raised — will go a long way in creating a better appreciation for what is at issue and rebuilding trust in the organization.
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