Many superintendents, managers and executives first instinct, is to instruct Human Resources to bring the complainant and respondent together in a room to “work something out.” According to Amy Oppenheimer J.D. (Expert witness in my State and Federal Cases) and Craig Pratt SPHR, MSW this is an “unacceptable” HR practice. And I agree wholeheartedly.
There are a plethora of good reasons that a company or organization might want to take this advice. First and foremost it poses significant additional risk to the business or organization. Secondly, HR needs backing from organizational leaders to make sure HR or other specialized units such as; Equal Opportunity Employment, Affirmative Action or Human Rights Commission are notified of every complaint. If senior staff does not support this approach, there more than likely will be inconsistent reporting and inconsistent responses to the harassment. Such practice leads to the inability for the company to track harassment complaints. If there is not a record of an alleged harasser receiving counseling or corrections this causes problems for the organization, new management, and the complainant. Such deficiencies can have grave consequences for legal liability. This is one good reason why even the best superintendents, managers, executives should channel every harassment complaint to HR.
With that said, managers should be encouraged to help with the investigations by watching for and reporting any violations of instructions to witnesses regarding discussions about the investigation interview. Supervisors, managers, superintendents, principals should notify HR if they observe or suspect that witnesses are talking about the investigations.
Furthermore, it is not advisable for organizations with employees represented by unions to handle harassment complaints as grievances. Here are a few reasons the grievance process can be problematic:
- Harassment allegations rarely depend on an accurate application of contract language.
- Contracts rarely cover the types of situations that come up in harassment cases.
- Privacy and confidentiality. Harassment cases are very sensitive the handling of such information is paramount. The grievance process is set up to pass the information on to other parties. Thus, maintaining privacy cannot be maintained.
- Most grievance procedures have fixed time limits. This is unworkable for many harassment cases and insufficient for investigating.
- There lacks freedom for the grievance agent/representative to negotiate a settlement for the grieving employee.
These are just a few good reasons to consult with legal counseling.