Urgency and emergency in sexual harassment claims - Where there's smoke is there (always) fire?

He looked white as a ghost; the only colour in his face the darkness under his eyes after a weekend during which he had probably slept little. I went through my standard preamble; thanking him for attending, defining confidentiality, victimisation and verifying he didn't want a support person present. He replied "No - I thought it would make me look guilty". I assured him that would not be the case and reiterated again he could invite someone to sit in. He declined. Then I asked him if he knew what I had been asked to investigate. He choked. "Yes. I've been accused of sexual harassment."

My reason for telling *Bill's story is not to enunciate the finer points of procedural fairness. The fact that he used the word "accused" for what was essentially a civil workplace grievance is probably not worth clarifying here, much less debating. He knew he'd been alleged to have given unwelcome sexual attention to a female colleague and at some level appeared to understand we were obliged to treat the matter seriously without assuming he had done what was alleged. The facts and circumstances of the situation indicated he had developed a friendly and collegiate relationship with a colleague and that they "hung out together" at work quite regularly. One time recently he asked her if she'd like to go out for a drink after they finished work that day. She politely and innocuously declined and he was stunned when three days later, he was called in by his boss and told she had submitted a complaint. The doomsday scenario. The life-flashing-before-one's-eyes moment. The bewilderment that something he insisted was so innocent being used against him to tarnish his reputation coupled with the anger he felt at being "the last one to know" he may have offended much less intimidated her.

Ultimately, given his full and complete validation of the circumstances as the complainant had provided them, I had to determine on the balance of probabilities Bill had given her unwelcome sexual attention on the strict definition of sexual harassment that includes a myriad of behaviours from an unwelcome invitation for a drink after work to the "grope and hope" of intimidating or humiliating physical contact which in some cases would also constitute assault. And while it was probably at the lowest end of the scale, to the strict definition of law and policy, it needed to be addressed. In this case, beyond the first warning which was confidential to him and his employer (no matter how much a complainant insists it's their right to know), the complainant and he continued to work together. She was satisfied the matter had been examined and brought to closure satisfactorily. She had not discussed it with other colleagues much less proclaimed his guilt on social media and had chosen to go through proper channels in a company where she trusted they would do the right thing - no more and no less. The unique and most challenging feature of this case was her reluctance to tell him directly she felt uncomfortable to mix work with social life and that she would not go out with him. While many of us may not personally understand her reluctance to say this to him, we are obliged to respect it.

Harassment and sexual harassment can involve behaviour that is not merely uncomfortable but could be humiliating, or worse, intimidating, thus we cannot ethically or logically compel a grievant to confront the respondent directly as the policy and law must allow for what's reasonable in the most extreme of circumstances, not just those at the mildest end of the transgression continuum.

I have seen the same shock, followed by anger and indignation (even if feigned) in those who have perpetrated far more by scale than what Bill did.

In another case still vivid to me after all these years, a tradie working at a CBD building site received a bunch of unwelcome visitors on his floor almost every day. A group of women would come and look up his Yakka shorts while he was up a ladder doing lighting for a large office refurbishment. *Brad was an attractive young man whose mate eventually dragged him along to the foreman to say the young guy was so embarrassed and intimidated by the very lewd comments these women would make, the repeated requests for dates or drinks after work, that they loved his work because his lights were so "well hung" that he was starting to take sickies because he dreaded coming to work. Beyond the complication of the fact that he worked for a contractor and the women worked for the co-tenant, he was seemingly being shamelessly sexually harassed. He also didn't say anything to them. He told a young mate whilst close to tears he couldn't stand it anymore and that the situation was being made worse because an older tradie working on site with him told him he was mad not to play up to the attention and had started to speculate out loud about Brad's sexuality because he didn’t relish the attention. Brad chose not to make a formal complaint and I was not asked to investigate but rather to coach Brad to the point where he could tell the women that if they came by again and said any of the things (again) they were alleged to have said, he and his company would lodge a formal grievance against them with their employer. The behaviour stopped. His company also asked me to run a discussion (Brad chose not to be there) with his crew at the construction firm about people's right to choose what was and wasn't acceptable and that taunting him about the attention, his sexuality (which was irrelevant) or even the fact that we had a briefing about it) was unacceptable. I could see the wheels turning for these guys as we got them to think about the situations that would make each of them personally uncomfortable. I also told them that over the years many a man in construction had told me they had "waited years to be sexually harassed" and that that this was a nonsensical furphy as sexual harassment by definition was unwelcome. While some of the guys were very forthcoming, even humorous about the attributes and behaviours of a person they would find unwelcome, the point was not lost on them. I left reasonably confident they would be more empathetic and look out for each other better in future.

Another nightmare scenario recently involved what I came to believe was a vexatious complaint and it felt like it took all of my thirty years' skill and discipline to work it through. The facts and circumstances seemed to point to the fact that the two people in question had had a close work friendship for a long time. I will never know if it became sexual and I didn't need to. But they were not together now and one of them had become friendly with a new employee. Even as an organisational psychologist, my role in such matters when I'm asked to investigate is not to explore behaviour, use deception detection techniques or attempt to understand the motives of certain behaviours including decisions to lodge grievances. My role is to examine the known facts and circumstances of the case, apply the burden of proof and make one of three possible findings relating to allegations - substantiated, unsubstantiated and not substantiated (see below).

In this case, both acknowledged a close prior "friendship".

The respondent (who had to defend the allegations) was sure they would automatically be pronounced "guilty".

Jealousy and possibly even mental health issues may have been in the mix for the complainant.

The Executive decision-maker and People & Culture were thankfully as responsible, sophisticated, objective and ethical as I could ever hope for in a client organisation. The allegations were not substantiated. In fact my finding was not that the allegations were unsubstantiated (inconclusive and therefore not able to be proven) but that they were not substantiated (not found to have occurred). Again, my job when I'm investigating is not to recommend disciplinary action. The organisation decided to give a warning to the complainant. I would like to say things reset and returned to normal. The aftermath of this case was tricky but the company deemed it unreasonable for the two to be expected to work closely together again and felt justified given the finding in asking the vexatious complainant to move to another team. No-one asked the respondent (who was found to be "innocent") to move to solve the company's problem which can sometimes be an hysterical overreaction, particularly in the wake of the #MeToo movement. When I first began working in this domain in the heady days of the nineties, it was the complainant who often got punished/moved. Now some organisations appear trigger happy when complaints are lodged. Not all smoke indicates a fire.

Every situation is different. And sadly these situations when they arise whatever the circumstances in whatever the context, take no prisoners. Even in situations in which allegations are substantiated and respondents receive disciplinary action and moderate their behaviour, apologise or move on voluntarily, we still collide with the harsh truth that anything less than a dismissal will not appease some complainants. So what is the best we can hope for? A just and fair process exemplified by the following:

1.   Good policy and procedures with built-in flexibility for common sense in the plethora of situations that can emerge and that said policies and procedures are actually followed. Jurisdictions come down hard on companies that seem to throw out their own published procedures in the heat of battle.

2.   Do not promise confidentiality as such a promise may not be able to be kept (e.g. if a matter ultimately ends up in say, the Fair Work Commission or because someone makes an accusation of serious misconduct during the course of a different investigation or you have sufficient concern for the mental health of an employee you are obliged to escalate it).

3.   Being really clear and intentional about which organisational process you're in or what hat you're wearing. My role and my actions running a grievance investigation are quite different than when running a workplace review, a team facilitation, a mediation between two parties or an OpEd or media commentary where I'm often invited to give my professional opinion rather than an examination of facts to make a determination.

4.   Trust and confidence that if a complaint is made it will be taken seriously without anyone taking sides. The last case cited above demonstrates the potential for a "false positive" - believing in the 'guilt' of an innocent but we are morally compelled in a world post #MeToo and the haunting discoveries of institutionalised sexual abuse to safeguard against the inaction of a "false negative". In the cool light of day that will probably mean anguish even for the person who is falsely accused and which I feel compelled to say has been quite rare in my experience. But rare doesn't mean impossible.

5.   Sound judgment about appropriate first steps including conduct of preliminary reviews which may support a recommendation for a formal investigation or being able to head things off at the pass through a thoughtful apology or facilitation between the parties and a better understanding of how to work together effectively, safely and respectfully.

6.   According procedural fairness to all parties, including making clear the allegations (without compulsion to give them the original complaint letter itself or the Records of Interview that potentially risk victimisation of interviewees). This is often poorly understood and companies that insist on requiring this in their policies and procedures can shoot themselves and their potential witnesses in the foot.

7.   Offering welfare support to all parties, not just the complainant and potentially beyond the closure of the matter. We are human beings, not light switches.

8.   Well-written, "bullet-proof" documentation with a clear enunciation of facts and circumstances and a sound evidentiary base for conclusions and rationale for recommendations. Imagining that everything could end up in a jurisdiction one day is sobering and motivating.

9.   Willingness to give warnings (appropriately) and preparedness to take reasonable disciplinary action against other parties in the case of a vexatious complainant or potential witnesses who refuse to keep matters confidential as long as we make sure any "punishment fits the crime".

10. Real investment in conflict coaching and assertiveness training as professional development, fostering an open and safe culture where people can routinely give each other respectful feedback without fear of ridicule or retribution. Not only does this foster innovation and the sort of debate that results in sound decision-making and competitive advantage, it minimises the chance that people will do the wrong thing by others and be the "last one to know".

For the above to become the lived experience in organisations, people managers must always remember their roles as the custodians of culture and be prepared to call out and 'consequence' any bad behaviour early and proportionally. My feeling these days is that they should also regularly take opportunities to share their leadership ethos and what will and will never be appropriate "on their watch". Many people still meet their life partners at work. Friendship is an optional extra but can be a wonderful by-product of working alongside others and doesn't have to be something of which to be scared. But psychological safety, the comfort to say No, ensuring we don't shame victims or targets, being cautious about assumptions including the notion that where there is smoke there has to be fire, make for a safe and enjoyable workplace where people can thrive, not merely survive. Humans are flawed and imperfect, sometimes impulsive and obtuse beings. We cannot control for everything our people will say or do. But in a modern world we have to strive to ensure we neither over-react nor under-respond to complaints and concerns. The courage of people managers to act with honour and measure is as inevitable as the reality of discomfort and stress for those who must defend allegations of wrongdoing to ensure safe workplaces, great workplaces.

*Not their real names

Leanne Faraday-Brash is an organisational psychologist, executive coach, media commentator and Principal of Brash Consulting, a Melbourne-based practice specialising in organisational psychology, organisation development and "workplace justice" (Equal Opportunity, ethics and employee relations). Leanne is the author of “Vulture Cultures: How to stop them ravaging your performance, people, profit and public image”. Outside work, Leanne is the Integrity Officer for a large grassroots sporting organisation. She can be reached at www.brashconsulting.com.au