Sexual Harassment Don't Forget the Emotional Stakes

October 1, 1998
Connfess. Even you think of sexual harassment as a legal issue—a finite series of acts that culminate in either a claim or suit being upheld or dismissed. It’s a very scary and expensive shadow looming over your workplace, indeed.

But admit it. Although you may know the legal "risk temperature" of your workplace, you don’t give much thought to the deep psychological injuries surrounding the process and aftermath of the acts and the investigation. No one really spends time addressing the human side of the recovery process or healing the wounds of sexual harassment. Yet claims of sexual harassment leave everyone who has been touched by it raw and vulnerable—the claimant, the alleged harasser and the other employees who either witnessed or were asked to speak about the incident.

Think about this situation: No one expects a patient whose high fever has just broken to stand up immediately and return to health, no matter how eager the patient is. But everyone expects to go to work as usual after a sexual harassment incident. Everyone wants the situation to return to normal, but that’s unlikely to happen without first ministering to the patients’ needs. HR can be instrumental in aiding this process by creating an environment that allows people to heal and get back to normal.

HR needs to anticipate the long-term aftereffects and establish practices upfront that recognize the psychological effects of sexual harassment. These procedures include creating a safe environment in which reporting can happen early (which is the most effective way to lessen trauma); offering a variety of solutions that encourage empowerment and cooperation between colleagues; and developing policies that focus on helping harassees and harassers, and that actively show the company’s concern with this issue and its willingness to aid in a recovery process when necessary.

"This is something you can’t pretend didn’t happen or sweep under the carpet," says Monica Ballard, president of Santa Monica-based Parallax Education LLC, a firm that has specialized in sexual harassment and diversity training for a decade. "You can’t just say, ‘the investigation is over, now everyone go back to work.’" To do that would be like expecting everyone to get back on the job immediately after workplace violence without at least talking about it first. No one would insist on these circumstances if violence were the issue, but because this is a sexually charged situation, people prefer to ignore it and pretend that everything will be fine.

Foster an environment that encourages communication.
With sexual harassment cases in the news every week, companies must be well prepared to deal with these issues. "You must factor in two ways of dealing with the problem—one is psychological and one is legal," says Ray Mulry, a clinical and organizational psychologist with Dallas-based American Network Services Inc.

While it’s difficult to separate the legal from the psychological aspects, the legal side is becoming more clearly defined because of the recent court decisions. But there are always more questions about the psychological needs of the people involved that effect the alleged harasser, the harassee and the various individuals who witnessed the sexual harassment.

"You must create a plan for the healing process," says Mulry, "You want to deal with those issues sensitively and squarely." The most critical salve to wounds is preventive medicine—to create a working environment in which people feel comfortable communicating their problems and are confident there will be resolutions.

Progressive, best-practice organizations combine several aspects for an effective overall plan. First is an open-door policy that encourages employees to communicate their problems so they can have help in solving them. Secondly, some companies have confidential hotlines. This voluntary process allows people to talk to a supervisor or person in senior management who will answer questions without any fear of retaliation. This can be part of a dispute resolution program in which one individual is responsible to oversee all legal questions and help resolve them before they fester. Next is the possibility for mediation, which allows both parties in a dispute to talk to a non-biased individual who will help them resolve the issue. And finally, some firms use arbitration, presenting the dispute to a neutral party for a final binding arbitration.

Building this type of an overall plan and communicating the program to employees goes a long way toward creating a positive work environment, and encourages support in all phases of difficulty.

Encourage empowerment and cooperation between employees and supervisors.
If you’re looking to help cure a potentially devastating disease, you want to create an environment that allows a wound to be dressed as soon as it’s open—likewise with a sexual harassment complaint.

To expedite the healing process, it’s a good idea to give employees the power to choose between an informal and formal grievance procedure. Some individuals may start with the informal process, decide it’s not helping them and move into the formal one. However, once you begin the formal proceedings, they take on a life of their own, so it’s helpful to provide the informal approach as an initial treatment. In formal proceedings, it’s more difficult to maintain confidentiality, more difficult to prevent others from becoming involved, and it makes the healing process more difficult.

An informal process can utilize the same individuals who handle formal complaints, but they do it on an informal basis, instead. For example, there’s a lot more discretion about how to handle the complaint in an informal process. In some instances, it could stay between the person complaining and the one who hears it.

"Sometimes people just need someone to give them a little encouragement and courage—someone behind the scenes, who can suggest that the person tell the alleged harasser that he or she doesn’t like it, and to stop it," says Christine Amalfe, director at Newark-based Gibbons, DelDeo, Dolan, Griffinger and Vecchione law firm. "Some companies offer an ombudsman program that allows the employee to see someone on an entirely confidential basis and just talk through the problem.

This option to handle a complaint using an informal process not only empowers the employee to try to solve the problem in cooperation with the employer, but it also fulfills one important legal aspect. This element is the requirement that the company take an active role in helping prevent a bad situation from occurring. The organization still needs a formal process in case the employee requires a formal investigation, but it allows the employee to choose.

"I tell employers to do their investigations in stages," says Amalfe. "Interview the smallest amount of people first, and see how they feel about it. If you still have questions, broaden out a little more, and a little more. The more people you talk to, the more chance there is for a breach of confidentiality."

These informal dialogues go a long way. However, you can’t have them so informal that you leave solutions to chance. "Let’s say [the victim] speaks with Joe, and Joe laughs it off and continues to make lewd comments. Then you have to sit down with [the victim], and explain the options and ask what she’d like to do about it," says Amalfe.

When the procedure is formal, the process can become much more difficult for the complainant. For example, Amalfe had a client who was working in a unionized workforce, but she was not a member of the union, and neither was the harasser. She went to HR and made a complaint. HR investigated the matter, found that the complaint was valid and then fired the man. When the woman went back to her job, every time she walked through the employee cafeteria, a group of men in the union would call out to her, "Don’t talk to her. She’ll sue you for harassment."

Even though the complainant didn’t tell any of these people, and neither did HR, the co-workers were able to find out because it’s so difficult to keep quiet. "People love gossip, and sexual harassment is [easy] to gossip about; but people don’t often think about how it affects the person who made the complaint," says Amalfe.

What happened to this client? She left the company, even though it did everything it could to take care of her. There’s no way the company could have avoided it, but at least it did everything possible.

Demonstrate active concern and caring for employees who are suffering.
Whether the claim is formal or not, remember to keep the complainant employee aware of what’s happening. If the investigation goes forward, let the employee know about it.

Often what happens is the employee involved doesn’t hear about the status of the process for weeks, and everyone else around him or her knows what’s going on. It’s not necessary to tell the individual who’s specifically being spoken to and what each person says, but at least let the employee know the result of the investigation. For example, was there sufficient evidence to establish sexual harassment or not? If sexual harassment was established, what’s the remedy going to be? Is the company going to fire the harasser? Is there other disciplinary action going to take place?

Along with keeping the employee informed of how the investigation is going, HR should inform him or her of what kind of support is available. Most companies make the EAP available to the claimant, but it’s important to determine if the company will pay for necessary counseling. Let the recipient know that this is available. It aids the healing process when HR goes out of its way to explain exactly what’s available. Some companies actually allow the victim to leave work early two days a week to go to EAP for counseling if he or she desires; others provide some short-term alternative work schedules if the employee requests it.

Small gestures on the part of the company can go a long way to preventing further problems. These acts can be as simple as giving the employee a paid week’s leave-of-absence while the investigation is occurring, or offering to pay for his or her legal fees. Every attempt by the company to make the process easy helps the healing. Ask anyone who handles sexual harassment claims, and they’ll tell you that when employees feel cared about by their companies, they feel soothed and some of the tension is relieved.

Turn the situation into a training opportunity.
One of the more important things that needs to happen during a formal process is to have employees team up with employers to make sure everyone understands what has happened and what should happen. The company should use these discussions as a training experience about the past events—the harassment.

"During this critical juncture, after people have been through the trauma and the experience of being the victim or the harasser and before everyone goes back to work, is probably the most persuasive—and successful—time for training because everyone is actively listening," says Lindy Korn, attorney and diversity consultant for Buffalo, New York-based Diversity Training Workplace Solutions, Inc. "You can teach from the scenario that created the workplace problem and use it in a respectful, dignified fashion."

Clearly, if you’ve done an adequate job, everyone is aware that the company has a handbook and policies. But distribution of your policies isn’t enough. The policies must be operational and in use.

Brainstorming sessions in small groups between supervisors and employees that focus around the policies and appropriate behavior are exceedingly helpful. Not only is this beneficial after a sexual harassment issue flares up, but it also helps reduce general stress in the workplace (which is on the rise) and decreases the possibility of retaliation claims after an investigation. (According to the EEOC [Equal Employment Opportunity Commission], retaliation claims have spiked.)

In addition to the small-group discussions, you must have a sexual harassment policy that has a clear, strong provision on retaliation. If any retaliation occurs, then it should be treated just as the first incident of direct sexual harassment.

"When you talk about the healing process, it isn’t just for the people who were directly involved, but all the people who participated in the process—possibly even co-workers—and it has a very far-reaching ripple effect," says Korn. These discussion groups nurse some of those feelings. For example, take the woman who won a judgment against her employer, not because she had been personally sexually harassed, but because she worked in the same department as a woman who won a suit for being harassed (read as "hostile environment"). Yes, the second claimant recovered money.

"The point is," says Korn, "When you talk about the healing process, healthy relationships do more than anything else to help problems get solved."

Often there’s enormous resentment and anger on the part of the alleged harasser, who deems the action as only a "joke," anyway. Furthermore, the other employees often take sides. This is a situation when small discussion groups with trained facilitators work well.

Like when recovering from a debilitating disease, the proper environment and medication speed the healing process from sexual harassment. Certainly, it’s best to avoid a sexual harassment situation altogether, but that’s not always possible. When the ailment occurs, HR can help tend to it and nurture the individuals involved back to health.

Woorkforce, October 1998, Vol. 77, No. 10, pp. 52-58.