Why is HR failing when it comes to harassment complaints?

Nearly three-quarters (71.4 per cent) of Canadians say they have experienced at least one form of sexual or non-sexual harassment and violence.

And the most common types of behaviours or practices include verbal intimidation, negative comments, persistent criticism of work, sexual conversations, sabotaged performance, invading personal space and sexual teasing or jokes, finds a survey from the Canadian Labour Congress and the Western University Centre for Research and Education on Violence Against Women and Children.

But also of concern? Many workers are not happy with the actions taken by those responsible for workers’ safety and wellbeing in the workplace – particularly HR, where 70 per cent of employees are dissatisfied with the response.

So, what is the problem? Is HR at fault? Or do employees have unrealistic expectations? Canadian HR Reporter spoke with two HR experts for their insights.

HR’s limited capacity

HR is an appropriate place to report any concerns but, really, their job should be to triage and make the appropriate recommendations to senior management and leadership in terms of whether external, third parties should be involved in resolving matters, says Sarah Coderre, partner and co-founder of Bow River Law in Calgary.

“Oftentimes, these sorts of complaints arise when there is a power imbalance in the workplace… [complainants are] fearful of going to HR because they figure what's going to happen is that HR will just sweep the matter under the rug to protect the higher ups,” she says.

“So what I think that a company needs to do is to make it clear what the reporting process should be. So when people need to go to HR and over what sorts of issues and circumstances but also make it clear that there are certain types of complaints where HR is likely going to get a third-party investigator involved.”

Having that stated and clearly outlined in any sort of complaint document or policy would take people’s fears away, if they knew at the outset that the company is committed to handling these matters properly, and that they are prepared to bring in third parties that are not connected with the company in any way to do a proper investigation, says Coderre.

Employees should definitely start by going to their HR department, but whether they're the correct people to do the investigation is questionable, says Janet Candido, principal and founder of Candido Consulting Group in Toronto.

“I often think that an external HR consultant is a better option for the investigation, because they can be more objective, they can be cleaner; not only do they not have a vested interest, because the internal HR person won't either, but it's more obvious that they don't have a vested interest in the results.”

In addition, the average HR person who's gone through the appropriate training and gotten their designation would not have a specialized skill set when it comes to harassment and bullying complaints, says Coderre.

“Frankly, from a company efficiency standpoint, it probably shouldn't be left to HR, because to do a proper investigation of this magnitude takes a long time of focused work. So you've got somebody with HR who's got multiple demands on their time, they're helping out with payroll issues or helping out with disability stuff… conflicts in the workplace, and now they've got this investigation plopped on their plate. Do they actually have time to properly go through it to do a thorough investigation, to follow up with witnesses, to go back and do some further interviews if new information comes up? Probably not.”

Unreasonable expectations

Sometimes people have unreasonable expectations of what HR can do, which could explain some of the dissatisfaction, says Candido.

“Some employees see HR as their advocate… and in the case of something like a harassment investigation, especially because that tends to be so emotional, to be done properly, HR or whoever's investigating, has to be neutral, objective and very thorough. And if they're doing their job, they may be uncovering things that suggests the harassment complaint is not well-founded. And so the person filing the complaint is going to be upset about that.”

On the other hand, a complaint may be well founded, “and then the executive team is not going to be too happy about that. So it's a difficult position for HR to be in,” she says.

Too often, people are afraid to speak up about harassment or uncomfortable situations at work. One of the top reasons is safety concerns and fear of backlash from the perpetrator (33 per cent), according to a recent report.

The longer things are left without being raised, the harder it is to get any sort of corroboration or substantiation of what occurred, says Coderre.

“Witnesses who maybe were at the company stampede party five years ago, they've moved on, they're not there anymore, no one can find them to corroborate what occurred… that stymies the efforts.”

How much transparency makes sense?

Another big challenge for HR is employees feel left out of or abandoned by the company when it comes to their complaint, she says.

“HR investigations into these matters typically are not thorough. So, at the end of the day, the complainant may submit something in writing and have a meeting with HR where they talk about what happened. And then they don't hear anything for months. And then they… finally get a letter that says, ‘Oh, sorry, the complaint has not been substantiated.’”

Often complainants have no idea what happens after they are interviewed or if there were any other witnesses, she says.

“When there's a lack of transparency, at least around the process, that can create the perception that the investigation wasn't fair. And it can make it hard for a complainant at the end of the day to feel like the company took the matter seriously.”

However, employers and HR do have their hands tied due to privacy concerns and obligations to the perpetrator or respondent in a complaint,  says Coderre, meaning they can’t tell the complainant what they've done to this person or what discipline may be meted out.

“They are allowed to know whether or not the complaint has been substantiated at the end of the investigation, but they're not allowed to know specifics of who actually said what or on what basis was a complaint substantiated. And that, in a lot of cases, is to protect the confidentiality of anybody else who may have been involved as a witness as well.”

Employees involved should be kept informed of developments, but there are limits related to privacy, says Candido.

“The issue may end up in the court so the HR person has to be very careful about what they say, and what they do,” she says.

“The employee is going to want to hear ‘So and so has been fired because of harassing so and so’… but most of time, you're not going to hear that because there may be a court case, because there may be an agreement made that guarantees some confidentiality or privacy.

“The person filing the complaint should be told more than other employees, but there are limits to what people can be told.”

Supportive culture

One way HR can definitely help is by building and maintaining a supportive culture. It’s about being proactive, indicating that your culture does not support that type of behavior, and ensuring that employees know what they can do if they feel they're being subjected to this behaviour, says Candido.

“Train your supervisors, your managers on how to deal with these situations... that's not going to solve the whole problem for you — because we all know that sexual harassment is wrong yet we know it still occurs… hopefully, what it does do though is empowers the people who may be experiencing it to know that they'll be supported if they bring a complaint forward.”

In January, Alberta announced it is expanding anti-harassment training to more public sector workers in the province

Especially at larger organizations, it’s important to have regular refresher sessions on the company's key policies, such as conflict-of-interest or harassment and bullying policies, says Coderre.

“It's not just empowering the complainant with knowing where to go but it's also about empowering bystanders to know that ‘If you see something, if you're at the company corporate event and you see that maybe people are intoxicated and you see that somebody looks uncomfortable with the way that somebody's speaking to them or how they're touching them, you have an obligation to speak up, to say something. And here are the appropriate channels that you can use.’”

Some organizations provide bystander training workshops to make it clear that everybody has a responsibility in keeping the workplace safe, she says.

“But on the proactive end of things, HR certainly should be making sure that people are aware of where the policies are, and that they're aware of the procedure and the process for raising the sorts of issues. Oftentimes, these policies are not standalone documents, it may be something that's buried in 100 pages, deep in an employee handbook or corporate manual.”