Importance of Due Process

Jun 23, 2021

Recent public events have caused a flurry of conversation around sexual and other forms of harassment plaguing the workplace.  My firm performs internal investigations and we have seen countless cases both true and false.  I’ve been approached by various sources looking for professional opinion.

News of multiple claims of sexual harassment against the current New York State Governor are in the forefront.  Discussions and opinions have been hot and heavy, no pun intended.   Some are quick to condemn the accused.  Many automatically believe the alleged victims while other believe the allegations are totally false.  Many times, victims are quickly dismissed or criticized.

These various reactions are also common in workplace claims.  The history of handling claims of sexual and all forms of harassment in our workplaces are still shamefully flawed.  History will confirm how victims were ignored, paid off or fired.  Reporting and processes may be in place yet they are rarely followed.

The bad news is it seems no amount of training or policy impacts bad characters from behaving badly.  Like the case involving a female director who found out her fellow male directors were rating her butt on their cell phones when she gave presentations.  She complained to the President of the company, only to be told “they’re kinda bad boys and I think it’s funny.”  Wrong answer!

An even more recent case involved a young Asian employee who was being called a slur that means “tinker bell” by the owner and COO.  They claimed they had no idea the slang word was derogatory. Do you buy that?

Or the case at a local construction company where the foreman suggested for the company Halloween party it would be a fun for him to where a white hood while a black laborer walk behind him with a noose around his neck.  That case went to the Equal Opportunity Commission.

The good news is that society as a whole is not supporting this behavior.  It was a fellow male director who told the female director about the incident and told her he can’t condone the behavior any longer.  Having a witness validate a case is very powerful in support of the truth.  In training sessions, we always emphasize the fact that silence is complicit.  Silence equals going along with harassment and discrimination.

In my professional opinion, every case requires a fair, fact-finding, and no presumption of guilt investigation.  Due process is needed every time even when initial facts look damning and no matter if the case is large or small. We need to maintain the validity of a fair process so truth be told.  We have seen many young employees confuse discipline/performance with harassment.  No one benefits from an employee throwing out the race or gender card when it’s actually a performance issue.

The process includes what the organization does in the meantime.  One manager suggested that all female interns should be protected by making sure they never visit the Governor alone.  Wrong!  With this suggestion, we move from presumed harassment to discrimination.  Discrimination is all about treating a person or group differently based on their protected class.  This type of “protection” cuts off the female’s ability to acquire needed knowledge and learn how to work with supervisors.  It is wrong to move or alter the victim’s work status in any way.  And who says it’s only female interns being harassed.  We had a young male intern being sexually harassed by his female boss.

What we need is to beef up employees’ ability to report plus give them the skills to respond to difficult situations.  We need to improve the responses to claims equally and fairly.  Strengthen the mechanisms in place that seek out the truth.  Counsel and demonstrate to the most senior people that they are never exempt from behaving badly.  Put in mechanisms where HR is as an independent reporter that can’t be shut down when bringing forth a complaint.  Make sure HR is really HR and not Finance or someone ill equipped to handle claims.

Due process should answer important questions regarding even the most high-profile cases.  What did the people around the Governor do with a claim?  If the answer is a learned behavior of being afraid to come forward, isn’t that an indication the problem is systemic?  With society as a whole moving in the right direction, we need to examine systems in place that may contradict moving the needle towards a workplace free of harassment and discrimination.  Is anyone tackling how the system was complicit?  Isn’t that the real problem?

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