On to more of your questions.
Q: Does it make a difference how HR should respond if an employee feels harassed by conduct that is benign or unintentional?
This is one of the more subtle points of responding to workplace misconduct, in that from a strict policy viewpoint, whether or not someone intended to harass someone is not particularly relevant for purposes of deciding whether the conduct was, in fact, harassment it certainly is relevant to the employer in deciding what should happen next. In my experience doing coaching for those who have been found to be “bad actors,” I find very few who wake up in the morning intending to make someone’s life miserable. Most of the behavior in the workplace that is labeled as harassment is inadvertent, ignorant or habitual. Depending on the severity of the conduct, an employer might take the position that even though someone was being the same jerk that they have been all along, someone has called them on it now, and they need to take responsibility, regardless of whether or not they intentionally harmed someone. By the same token, the company might decide that the alleged harasser is a good person who used bad judgment and assume that a slap on the hand will get their attention and stop the behavior. Remember, the goal of addressing harassment is to STOP it, and to assure that it STAYS STOPPED. If someone is enough of a jerk to ignore their employer’s admonition to change their behavior, it follows that the company can’t have a lot of confidence in their judgment. If someone is properly chastised and remorseful, well, it makes sense that the admonition or punishment is sufficient.
The toughest call is a particular species of “privileged” harasser– the one who has gotten away with all sorts of bad behavior for a long time. These folks are usually big producers or valuable contributors who management is afraid to upset, and the simple fact is that without an intensive and expensive intervention, it will happen again. These folks just don’t care if their behavior is a problem, and they are far more mindful in their use of power as a weapon than the average harasser. These people, when being called out for their bad behavior are like cornered animals, and a slap on the hand is likely to enrage, rather than chasten them. When these are the bad actors, the company has to make a decision about what kind of risk it wants to manage — continue to harbor the bad actor and pay off his or her prey, or take a hit by terminating the moneymaker, recognizing that the culture of the organization will be best served, and the business interests of the organization most preserved over the long haul. Coaching has some usefulness here, but about fifty percent of the true representative of this type of harasser is unable to muster the humility that successful coaching requires.
In summary, true inadvertent harassment will be responsive to proportionate remedies — mild discipline, education and clarity of expectations. If those remedies don’t work and the conduct recurs, the company should assume that the behavior is not so benign and be more aggressively punitive. In the case of the intentional harasser, however, the stakes are far higher and the consequences far more profound. Companies need to dig deep, do some examination of their goals, and either protect their moneymaker at what may be great expense (likely to be incurred repeatedly) or protect their employees at no less an immediate expense, but with a fairly high likelihood of a positive return over time.
Q. What is the best way to structure questions so as not to put the person on the defensive but to get to the truth?
In my five stage approach to investigative interviewing, I emphasize the importance of letting people tell their own story in their own words. Our job as interviewers is to ask the most open-ended questions that will help people tell us what we need to know. If someone is defensive, the best way to begin is by expressing a real interest in understanding how things look from their perspective. We might say things like, “I can see that you have some pretty strong feelings about what actually happened during that discussion. Tell me what you remember.” The key is to remember that people need to tell it from their perspective before they can tell us the facts. Our direct questions should only come after they have described matters in their own words.
Q. How should an investigator respond to please for a second chance/leniency after they have admitted wrongdoing?
You’ve hit upon a pet peeve of mine, and if you are an in-house investigator it’s quite possible you aren’t going to like this answer . Stated simply, I don’t believe that this conversation should ever take place because I feel strongly that the investigator and the decision maker should NOT be the same person. I think that finding facts and then being the one who has to manage those facts can legitimately be called out as a conflict of interest. After all, if my job is to fix a problem, aren’t I inclined to define that problem in ways that I know I can fix?
I feel that companies do HR a real disservice when they ask them to be an investigator and then to also be the disciplinarian. The disciplinary decisions should be in the hands of management. It is the job of managers, with the advice and counsel of HR, to manage their people, including their discipline and termination. Delegating this important management function to HR diminishes the significance of the decision and compromises HR. Too often, I see managers roll their eyes and apologize to employees for their consequences, shrugging gamely and saying that “HR made me do it.”
Ironically, the people that most often object to my thinking are HR people themselves. They argue that they, not managers should decide the discipline because they know what has happened across the company or that managers are ill equipped to make these calls. Frankly, I think that is wrong-minded. I believe that managers abdicate their role in running the business when they don’t make and take responsibility for tough personnel decisions (and therefore can say “this was my call,”) and that HR people have gotten into the habit of enabling them.
The answer to the question, therefore is that the response to such please should simply be “I am not the one who will be making that decision.”