Click here to purchase your copy of Human Resources Guide to Workplace Investigations, Second Edition, a must-have practical guide to workplace investigations written by leading employment and workplace investigations lawyers Janice Rubin and Christine Thomlinson.

Serious insight for serious situations.

Serious insight for serious situations.

<< Back to all posts

The Emotional Investigation: Navigating the difference between feeling and being harassed

While you’re here, you may wish to attend one of our upcoming training courses:

Conducting Sexual Harassment and Violence Investigations
3 Dec - 4 Dec at Hyatt Regency Vancouver
If someone at your organization says they’ve been sexually harassed or sexually assaulted, how should you investigate and establish the facts? These complaints can be uniquely challenging for internal investigators — but are more common than ever before. This hands-on, advanced-level training is a must for any frontline staff who may respond to and/or investigate such complaints. Internal investigators leave confident and prepared.

When conducting investigations, I have often experienced the following scenario:

A complainant provides me with an email, a text message or a recollection of an interaction with a respondent and they say that this is a sign of the respondent engaging in harassment. I then ask, “Can you help me understand what aspect or aspects of this information you found to be harassment?”

The reason that I ask this question is because, on its face, the incident they are describing or the evidence they provide appears to be innocuous. I am looking for the underlying elements of this incident that makes the complainant feel as though the respondent is acting in a vexatious manner. The problem with asking this kind of question is that it is often surprising for them to hear. Complainants expect that an investigator will focus only on how they felt in a given moment, and not ask them to explain the basis for their emotional response. But this is a workplace investigator’s key task – to both understand and distinguish between the subjective and objective aspects of a harassment complaint.

In the types of cases where I pose the question above, the complainant and respondent are experiencing conflict at work.  If the parties are in a reporting relationship, the complaint may arise because the respondent is not a good manager. If the parties work closely alongside each other, the complaint may arise because the respondent disagrees with the complainant about how they should work together. Often it is these ongoing conflicts that lead a complainant to take a sinister interpretation of otherwise innocuous conduct.

This is not a sign of a fragile complainant – it is normal. Not only does common sense tells us that if you have problems with someone, you are more likely to interpret something they do as being annoying or threatening, science tells us that this tendency is exacerbated if we are losing sleep over it.  A recent study at UC Berkeley found that when people are sleep-deprived, they are more likely to interpret facial expressions that are neutral or friendly as threatening.

Complainants are not always able to distinguish between scenarios where they feel harassed and cases where, from an objective perspective, they are being harassed. Navigating the difference between the subjective and objective elements of incidents described in a harassment complaint is the job of the investigator. Here are three helpful tips to address this kind of scenario:

  1. Investigate with the right mandate

Ensure that any investigation into a complaint has the right mandate.

If you receive a complaint that includes not only incidents of harassment, but also incidents that appear to convey a troubled working relationship or that the respondent is not doing their job properly, you can inform the respondent that you are investigating a complaint, as opposed to a harassment complaint, and evaluating whether that complaint violates one of a number of policies, including, but not limited to, your workplace harassment policy. This accurately reflects your mandate and signals to the respondent that the complaint is about a number of issues that need to be resolved and it is not solely an investigation into a complaint of harassment.

  1. Meditate and mediate

If you are confident that the incidents complained of in a letter are not ones that need to be investigated and this is confirmed by your employment lawyer, you can offer the complainant and respondent the option of mediating some or all of their issues. If they consent to such an approach, and take the time to meditate on how this approach may address their concerns, then a mediation may be more satisfying than an investigation that results in a finding that says, essentially, even though you felt harassed you were not.

  1. Educate and elucidate

While many workplaces have thorough harassment training programs for staff, few take the time to explore how to address conflict in the workplace that is not harassment. How do you address a complaint against your boss when they are not responding to your emails in a timely manner? What happens when you frequently disagree with someone that you’re supposed to work with? Without training on how to deal with these types of conflicts, individuals may make a harassment complaint in these scenarios because they see no other way to address their concerns. Employees should be trained on how to deal with these kinds of conflicts, in addition to an employer’s workplace harassment policy.