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HRs Delicate Balancing Act
 
Published Friday, April 13, 2018
by ANNE SAUNDERS

A new character was introduced on Saturday Night Live in November following a wave of reports about workplace sexual harassment. A frazzled “Claire from HR,” played by Cecily Strong, conducts an anti-sexual harassment training on the show, frustrated at marching through the same old exercise.

“When talking to a coworker in the office, where should you keep your [privates]” she asks? “There’s no wrong answers,” she adds—“just super wrong answers.”

While many companies may still rely on workplace training to protect against sexual harassment, Claire from HR gets a laugh by suggesting this approach hasn’t gotten us very far. In reality, human resources professionals often traverse a shaky tightrope when it comes to harassment complaints by trying to protect their employers from a lawsuit while helping an individual with a traumatic situation. “In any HR capacity, you should at all times be wearing a couple different hats. You’re an advocate for the employee, but you’re also looking out for the best interests of the company,” says Tonya Rochette, co-owner of Human Resource Partners in Concord and Dover, which works with companies that outsource their HR.

So aren’t these two hats potentially in conflict in cases of alleged sexual harassment? If HR is paid by the company, can HR really be expected to do the right thing when it comes to protecting an employee? “We always advise clients that they should follow their employer’s sexual harassment policy,” says Heather Burns, a lawyer at Upton & Hatfield in Concord who specializes in employment law and represents employees in cases involving harassment or retaliation.

Charla Bizios Stevens, an attorney at the McLane Middleton law firm in Manchester who typically represents employers, agrees, saying many of the harassment complaints brought to human resources don’t belong in a courtroom and are best resolved outside the legal system.

For example, misunderstandings arise, or employees may be unaware they’ve offended someone. “Sometimes the issue at work between people is not really one of illegal harassment but one person treating another poorly,” she says. “Unless a person is being singled out due to race, gender or membership in a protected class, that probably isn't illegal harassment, although the person being spoken to that way may feel harassed.”

Even in the worst cases, the interests of employers and employees shouldn’t be that far apart—employers benefit from maintaining a safe work environment and employees benefit from giving their employers a chance to address problems.

Based on best practices, NH’s human resources professionals say employees should have several avenues within their company for making a complaint. And, once reported, it should lead to an investigation into the allegations. In serious cases, an alleged perpetrator may be temporarily placed on leave. Once findings are reported, employers would have guidance on how to respond if the complaint is substantiated. This could include firing someone, issuing a reprimand or requiring additional training.

During the course of an investigation, when interviewing the alleged perpetrator, “you hope that they are surprised and embarrassed because then you know the perpetrator did not intend to harass or create those feelings, then you can change the behavior,” Rochette says.

Conducting an investigation and responding based on written polices and procedures is part of what protects a company from legal action. But that requires employees to report harassment, whether they have experienced it or witnessed it, and experts stress employees need to give employers a chance to remedy the situation in order to have grounds for further action if that is needed. “There is a defense that employers will have that if they provided appropriate administrative remedies, if they had a process, and you didn’t avail yourself of the process as an employee and you chose to go outside of that, then the employer could use that as a defense,” Stevens says.

Diverging Interests
There are a couple other arenas, however, where the interests of employers and employees may appear to diverge—confidentiality during an investigation and nondisclosure agreements afterward. As national news has illustrated, secrecy often means one victim remains unaware that other victims share his or her experience until someone finally speaks up, sometimes years later.

In almost all cases, HR wants its investigations to be done discretely and will talk privately to any alleged victims, perpetrators or witnesses, as well as ask them not to discuss the ongoing investigation with colleagues. This protects everyone involved, including the alleged victim, they say. In many cases, complainants are embarrassed and don’t want their colleagues to know what happened.

“We would not necessarily publicize or communicate specifically that a claim was made,” says Hope Kelly, human resources director at Granite State Manufacturing and president of the Manchester Area Human Resources Association. “If someone in a work group made a claim, and they either identified other possible victims or there were other folks in the department we suspected, we would contact them independently, but we wouldn’t necessarily say ‘Sally’ made a claim against ‘Bob.’”

That confidentiality doesn’t always apply when it comes to notifying top management or an owner, unless one of them is implicated in the complaint, Kelly says. “It may be a situation where you say, ‘I’m conducting an investigation, and I’m not comfortable even telling you who’s involved at this point, I just want to make you aware.’ Because they’re the person who’s ultimately responsible for the company’s risk, and they need to know.”

But the goal is certainly to limit the circle of people who know, and as a result, it remains incumbent on HR professionals to be thorough in their investigation, they say, and talk to anyone the alleged victim has identified as someone with knowledge, or who also may be a victim. They must remain objective enough to recognize a complaint could be false or find someone to take over an investigation if their own objectivity is compromised in any way.

Once an investigation is concluded, a nondisclosure agreement or settlement could involve either victims or employers agreeing to keep silent. That also prevents alleged victims from learning about other victims—and, as many news reports have revealed, it has allowed perpetrators to continue their bad behavior with a new employer. “That’s a huge issue, and that’s one of the issues that a lot of private schools are dealing with now,” Stevens notes. This has led to rethinking confidentiality agreements. Where there is strong evidence of misconduct, employers are now less likely to grant confidentiality, she says.

The HR Trap
But what happens when best practices are not followed? What happens when an employer wants to protect an alleged harasser and not the employee? Again, human resources will likely be on the frontline.

“HR is often in an unenviable position,” notes Burns. Some of the employees she has represented were HR professionals who did their jobs investigating harassment claims and ran afoul of their employers. “They are definitely [HR professionals] who have retaliation or whistle-blower claims,” she says.

HR employees can put their jobs at risk by investigating or reporting abuse the same as any other employee when sexual harassment is tolerated in the workplace. “I think that’s a real trap for HR professionals,” says Dawn Barker, vice president of human resources for RiverWoods at Exeter and president of the Seacoast Human Resources Association. She’s never been in that situation herself, but she knows others who have. “Absolutely, in smaller organizations where perhaps the CEO is the perpetrator, I think that’s absolutely true…. My best advice to those HR professionals is to find another job.”

That’s because regular workplace trainings, a thick stack of policies on sexual harassment and HR professionals receiving training and continuing education around best practices, on their own, are never going to be enough. Ultimately it’s the company’s leadership who sets the tone. Barker says some leaders are still stuck in mind sets of 20 years ago when sexual harassment was commonly overlooked, and women were reluctant to complain for fear it would jeopardize their careers. “Now, we’re raising a generation who say I’m not going to be treated that way,” she says.

Like any other department, human resources professionals need the backing of their employers. And employers need a strong and educated HR department to ensure the right systems are in place and followed. A report last year by a special task force set up by the Equal Employment Opportunity Commission looked at why sexual harassment continues to be a problem in the workplace. (The EEOC, along with the NH Commission on Human Rights, is where employees go if they don’t feel employers handled a harassment or discrimination complaint appropriately.)

The task force found it was not enough that leaders be committed to a diverse, inclusive and respectful workplace. Systems must be in place to hold employees accountable, the report found, and “that those whose job it is to prevent or respond to harassment, directly or indirectly, are rewarded for doing that job well, or penalized for failing to do so.” In most companies, that’s the role of immediate supervisors and human resources staff. “At the end of the day, we need to make sure the employees are in an environment where they feel safe coming to work,” says Rochette. “How you get to that point may anger some people, may [involve] some ugly truths for supervisors, may incur costs because of additional training or replacement of people. We [HR] don’t always deliver great news, but we’re there to do what’s right.”

Resources for Dealing With Sexual Harassment

U.S. Equal Employment Opportunity Commission (EEOC)
eeoc.gov
This agency is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity and sexual orientation), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination filed a charge of discrimination or participated in an employment discrimination investigation or lawsuit. Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases).

NH Commission for Human Rights
nh.gov/hrc
603-271-2767
humanrights@nh.gov
A state agency established to eliminate discrimination in employment, public accommodations and the sale or rental of housing or commercial property because of age, sex, sexual orientation, race, creed, color, marital status, familial status, physical or mental disability or national origin. The commission has the power to receive, investigate and pass upon complaints of illegal discrimination.

NH Coalition Against Domestic & Sexual Violence
nhcadsv.org
603-224-8893
The nonprofit collaborates with other advocacy groups, victims and legislators to draft legislation and advocate for policy changes to advance victims’ rights and protections at both the state and federal levels. It works with youth, educators and communities to prevent violence before it happens by identifying and sharing best practices, and designing and implementing statewide educational campaigns.​ It also implements statewide awareness campaigns.​

Prevention Innovations Research Center
University of NH
cola.unh.edu/prevention-innovations-research-center
603-862-5023
The center’s mission is to help postsecondary institutions, federal, state and local communities develop and model policies, procedures and programs relating to violence against women on campus.

YWCA NH
ywcanh.org
603-625-5785
info@ywcanh.org
YWCA NH Crisis Services provides free and confidential services to victims/survivors of domestic and sexual violence and stalking and offers support groups for domestic violence victims and sexual assault victims. It also provides information and educational presentations. Topics include: Domestic and Sexual Violence 101, Domestic and Sexual Violence in the Workplace, Bystander Intervention and more.


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