Special note to BC readers:
If this subject is of interest to you, you may wish attend our related workshop. Some spots are still open for the following session – we recommend registering soon. We hope to see you there.
Conducting Sexual Harassment and Violence Investigations
November 27-28, 2018 in Vancouver, BC
This advanced-level training is a must for any staff who may respond to and/or investigate sexual harassment or sexual assault complaints.
As Michelle Bird pointed out in this blog post from last year, investigating anonymous complaints presents numerous challenges. While the promise of anonymity is often what gets complainants to come forward, once employers have that information, it can be difficult and sometimes impossible figuring out how to handle the complaint in a way that continues to protect anonymity. If the incidents described are specific enough and/or follow-up interviews identify the parties involved, the complainant is unlikely to remain anonymous for very long.
The loss of anonymity a complainant experiences in a workplace investigation should not be taken lightly by employers. For a complainant who is already feeling distrustful of their workplace, it can create deeper feelings of betrayal and resentment. It can also act as a deterrent to other employees from coming forward with their own allegations of harassment. Lastly, complainants whose anonymity cannot be guaranteed may refuse to participate further, leading to a frustrated investigation process.
So what can employers do to avoid the pitfalls of anonymous complaints while also supporting and protecting employees experiencing harassment? It is a difficult balancing act of wanting to encourage complainants to come forward with their allegations, while managing their expectations of what will be done with that information once it is shared. Similarly, there is a tension between allowing complainants agency over their complaints, while keeping in mind an employer’s obligation under Bill 132 to investigate incidents and complaints of workplace harassment. Here we have compiled some tips for walking the tightrope that is anonymous complaints:
1) Set out the Investigation
Lay of the Land. Some employees treat their HR department or manager’s office like a therapist’s couch. While having this kind of openness and transparency amongst staff can be beneficial, it can also create expectations among employees that, like with a therapist, whatever is said to HR and/or a manager is protected by a cone of silence. If you sense an employee is coming to meet with you to unload concerns that may trigger obligations under your workplace policies and/or the legislation, remember to give them a brief overview of what bringing concerns forward will entail before proceeding with the meeting.
In a similar vein, any hot-line or tip line that promises anonymity should also include a brief disclaimer that advises that the identity of the complainant may become apparent in the course of a further review or investigation of the complaint.
3) Review your complaints processes.
One of the main reasons people come forward anonymously is because they are scared that the situation will get worse if their name is known. The more transparent and fulsome your complaint processes and policies are, including the employer response to acts of reprisal, the less reticence a complainant will have in coming forward.
4) Educate staff.
Employees may be aware of harassment hotlines and where their HR department sits, but what happens after the email is sent or the call is made is usually a mystery to them. Often times we hear complainants and witnesses tell us, “I’ve never done this before, I have no idea what to expect.” While it may seem obvious to HR staff and internal and external investigators alike, employees may not understand that their allegations, whether submitted anonymously or not, cannot be taken at face value and will not automatically result in disciplinary action against the named perpetrator.
Employers should consider providing education sessions to employees on internal complaints processes, so that there is a better understanding of the steps involved when information or evidence of harassment comes to an employer’s attention. Equipping your employees with knowledge about the process will go a long way in alleviating fears and encouraging them to come forward as named complainants. This type of education will also be beneficial to employees should they ever be called upon as a witness in a complaint.
5) Consider engaging with anonymous complainants.
If you do employ an anonymous hotline service at your workplace, it may be worthwhile to consider whether it gives you the ability to correspond with anonymous complainants or provides any sort of mechanism for back-and-forth conversation. Similarly, if an anonymous complaint comes in via email from a “Jane Doe” account, you may want to consider replying to the email to develop a dialogue. This will allow you to continue a conversation with the anonymous complainant in order to not only collect useful information about the complaint, but to also encourage the complainant to reveal their identity.
6) Anonymity vs. Confidentiality.
It may not always seem obvious, but anonymity and confidentiality are not the same thing. While the anonymity of a complainant and/or witness cannot be guaranteed, you should reinforce to staff that every effort will be made to keep the process and the identity of the parties as confidential as possible. It is often very reassuring to parties and witnesses alike that information from an investigation will only be shared on a “need to know” basis.
Anonymous complaints are challenging. They can become a “hot potato” for your organization, as my colleagues have termed it. Think of the tips above as oven mitts to ensure you handle them with the right approach! At the very least, if you are struggling with how to proceed with information provided in an anonymous complaint, it may present a good opportunity to conduct a more general workplace review or employee survey to help ‘take the temperature’ of your workplace.