False Allegations of Harassment – Protect Yourself, Protect Your Company
In the workplace, false allegations of harassment are a great concern for many people. In the mutual respect courses I have led across the country, most (all?) of the people worried about it are men.
In many cases, it is a worry that can be largely alleviated by understanding the law – provided the organization they work for has both a good policy and educated, up-to-date professionals trained to implement it. For anyone in today’s workplace, it is worth taking the time to explore human rights law, and how it may impact your behaviour at work. For men – especially if you are not sure about what is, or is not, legal harassment – it is a basic survival strategy. Most of the people accused of sexual harassment are male.
“I have never and would never intentionally harass anyone, so it’s not an issue for me” is not enough protection from false allegations. The law does not care about the intent of the behaviour when deciding if it is harassment. The law looks only to how the behaviour lands on the person on the receiving end. The good news: it is not just their opinion of your behaviour. The perspective is that of the so-called “reasonable person” in the eyes of the law. Would a reasonable person – average intelligence, average sensitivity – know, or ought to know, that the behaviour would be unwelcome? If the answer is yes, and if it involves one of the protected grounds identified by law or by your policy, it is harassment. Sex (including gender) is one of the protected grounds.
Harassment can destroy people’s lives. Hence the consequences for proven cases can be harsh. Discipline for proven cases of harassment usually begins with an apology and a commitment to stop the behaviour, and may also include education and/or personal coaching, and time off without pay – up to and including dismissal.
Only more recently has it come to the attention of organizations that false accusations of harassment can also destroy people’s lives. In the rush to ‘proactively create a harassment-free workplace’ (the requirement under law for the company), many have erred on the side of investigating every concern. When employees have been educated about harassment, and subsequently feel disrespected, the immediate response may be “he’s harassing me!” (Also “she’s harassing me!” of course, but that cry is far less likely to be made).
When the workplace committee, or Human Resources Manager, hears “he’s harassing me!” the first response can be to investigate. For those interested in a thorough – and thoroughly readable – understanding of effective workplace investigations, I recommend Neena Gupta’s “Sexual Harassment: A Guide to Conducting Investigations”, LexisNexis Butterworths, © 2004. Gupta also includes a list of the many situations where an investigation is not an appropriate response – and it is a list I find myself bringing to a lot of harassment committees today. Trained to investigate, they may unwittingly see every concern as a nail – and fail to realize that the investigation hammer may be the least effective tool for resolution.
We should distinguish false and malicious complaints from those that are merely false. While both can have devastating effects on the accused person’s reputation, only the former has serious consequences for the so-called complainant (the person making a complaint). The discipline for false and malicious complaints is equally severe to that for proven cases of harassment – up to and including dismissal. Proper investigations will reveal possible motives and malicious intent.
The more delicate situation occurs where a claim is ‘merely’ false. Companies today walk a fine line. They need to create environments where people will speak up about concerns so that they can be proactively addressed, and create a process to handle concerns both quickly and as discreetly as possible. It is the latter that is more often mishandled, in my experience.
The first impediment to handling a formal complaint ‘as confidentially as is possible’ is found in the law itself. To ‘proactively create a harassment-free workplace’, the company must separate the parties (in the least disruptive manner possible) to ensure that no harassment is occurring while the complaint is investigated. While there is no assumption of guilt – it is only an assumption that something may be happening – it is usually enough to start tongues wagging.
While a timely investigation is crucial, the failure I see most often today is the enforcement of confidentiality. All parties to a complaint: the complainant, the accused, and any witnesses being interviewed, must be advised to refrain from any discussion of the issue in the workplace at large. The stress of the situation should be acknowledged, and appropriate resources (such as Employee Assistance Program resources, off-site counseling services) offered. However, under no circumstances should individuals be permitted to discuss a complaint with colleagues or co-workers, outside of the investigation process. If such behaviour is not stopped, by discipline including time-off without pay if necessary, the restoration of the workplace after a complaint becomes a monumental task. And the reputation of the accused – even if no harassment is found – is forever damaged.
The best defense against false accusations is a good offence: know the law and your company’s respect policy (harassment-free and discrimination-free workplace commitment), and keep yourself up to date (ongoing education for all employees is in everyone’s best interest). If you are accused, immediately document everything you can remember about your interactions with this person or the situation. Review the details of the company policy. Insist on knowing exactly what you are accused of – you have the right to know. It’s part of your right to ‘due process’, which also includes, among other things: no bias by the investigator, reasonable grounds for investigation, all pertinent witnesses interviewed, all parties present their information, a summary of findings to all parties (although the investigation report may or may not be made available), and the right of representation (anyone you choose, not necessarily legal counsel).
In the spirit of respect at work, be open to the possibility that your behaviour may have inadvertently offended someone. While intent does not matter in the determination of what is and is not harassment, it definitely does matter in terms of what is done about it after the fact. Miscommunications between the genders abound today. Be willing to hear another person’s perspective, and be open to understanding their point of view – even to the point of apology (not necessarily “I’m sorry, I was wrong”, but perhaps “I’m sorry you heard it that way, it is definitely not what I intended”).
Our common goal is respect: where every person is not only referred to with respect, but we can actually relate to each other with greater understanding and appreciation. Know that it will take ongoing dialogue to get there. “Common sense” is no longer common. What language, jokes, or what to call each other, that may be considered respectful for, say, a 20 year old 4th generation Canadian female, and a 20 year old Chinese woman who just arrived in Canada – may not be ‘common’. In fact, there may be little overlap! Add in the different expectations related to gender behaviour in many cultures and religions, and we all have opportunities to learn. Most Canadian workplaces have far more diversity than what anyone grew up with – and some are a virtual United Nations. When in doubt, ask – and keep your sensitivity and your sense of humour ready for the inevitable miscues!
Credit: The firstname.lastname@example.org
Author: Maureen Geddes
Originally Published: March 13, 2005