Monica Austen is an attorney who practiced discrimination law in Los Angeles. She also served as head of investigations for the Utah Antidiscrimination & Labor Division. Most recently, she worked for Kaiser Permanente as a manager of its EEO Investigators in Southern California and also conducted investigations. In this interview, she shares insights and experiences in dealing with workplace sexual harassment.
Jathan Janove: Sexual harassment is major news these days. What’s going on?
Monica Austen: I think that the behavior has always been going on and it was a well-known secret. As the high profile cases have been covered by the media, there is a better understanding that the behavior is not acceptable and should not be tolerated, and that the victim will be believed when they complain even where it is a “he said / she said.” This also goes for male victims.
Jathan: What’s behind the reluctance of victims to take prompt action when the offense occurs?
Monica: In the past, the victim was made the target, and the spotlight was on the victim and not the accused. But I think the greatest fear is and remains the potential for retaliation. Where your employment is “at will,” it is not difficult for an employer to find a reason other than complaining about harassment to terminate even the best employee who complains about harassment.
Jathan: Can you share an example from your experience that illustrates your point?
Monica: When I worked at the Utah Antidiscrimination and Labor Division, we investigated a claim of sexual harassment and retaliation. The complainant alleged that she was terminated in retaliation for making the harassment complaint. Although we didn’t find sufficient evidence to sustain the sexual harassment claim, there was sufficient evidence to show that her termination had been retaliatory. Other males and females who had made the same errors for which this employee had been terminated had not been disciplined. When we gave the employer the decision, it was genuinely surprised. It erroneously assumed a finding of harassment is necessary to be held liable for retaliation. We had to educate it on the retaliation portion of the law and that the legal protections go beyond just acts of harassment.
Jathan: What’s the best approach to prevention?
Monica: Training and refresher courses for everyone, especially front-line employees to make sure they know the pathway to report issues. Second, if possible, have more than one pathway for an employee to complain, i.e., anonymous phone line, written form or even a verbal complaint to any supervisor and “advertise” these pathways. I have done trainings where employees had no idea who their HR representative was or how they could make a complaint.
Jathan: For HR professionals and others invested with responsibility to investigate internal sexual harassment claims, what are the key processes to keep in mind?
Monica: Communication, confidentiality and credibility. Although the accuser and the accused should already have a good understanding of the employer’s policy, it should be reviewed with them when a complaint is filed. It really helps to remind the accused that the policy will also protect them too should the situation occur. Communicate the general steps that go into conducting an investigation including what may happen if the complaint is or is not substantiated. Communicate to the parties if the investigation has been delayed without going into the reason. Employees won’t trust the system if they think their investigation is going into a black hole. Confidentiality of the investigation needs to be reinforced to the parties and witnesses, and encourage them not to speak about it to co-workers. Credibility should be assessed and be a part of the file as each witness is interviewed or documents are reviewed. This is especially important where it is a case of “he said, she said.”
Jathan: For someone experiencing unwelcome sexual conduct, what do you recommend?
Monica: First, ask the individual to stop the behavior. Second, document, document, document. Finally, if the behavior does not stop, report it to a supervisor or human resources.
Jathan: What other suggestions or advice do you have for people and organizations that want to create harassment-free environments?
Monica: Make it a priority to keep the employees engaged. If the employees are invested in their work, recognized for their contributions and the success of their teams, then they will respect each other and harassment will not be tolerated by anyone.
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