“It’s bullying,” “I’m being harassed,” or “this is creating a hostile work environment.” As a workplace investigator these are phrases that I hear on a daily basis from complainants and their colleagues, and even sometimes from the respondents accused of harassing behavior. “Harassment” and “hostile work environment” are actually legal terms, by which I mean they have been defined in the law and behaviors that meet those legal definitions may create liability for an organization. The definition of “bullying,” as I discussed in a prior post, is less clear under the law, at least in most jurisdictions. Beyond the law, most organizations have their own policies that specifically define harassment, hostile work environment, and often bullying as well. The role of a workplace investigator is to get past the language used by the interviewees, and understand whether behaviors themselves are occurring that violate the organization’s policies.

Gaining Clarity

The only way to effectively determine what behaviors are occurring is by gaining clarity, through interviews, and potentially review of relevant documentation. It requires continually asking for examples and explanations, and never assuming that the investigator has correctly inferred what the interviewee meant.

When a complainant asserts that the complainant is being subjected, for example, to a “hostile work environment“ the investigator needs to ask follow-up questions, such as:

  • What do you mean by that?
  • Can you tell me more?
  • Can you give me some examples?
  • What does that look like?
  • What does that sound like?
  • How often has it occurred?
  • Is it only directed at you or others as well? And if others, who, what happened with them, can you provide those examples?

Layers of an Onion

We often speak in generalizations, and use idioms, slang, and vague language in our conversation.  Perusing my notes from some recent investigation interviews I had conducted presented a range of such terminology, all cited as examples of “harassment” or a “hostile work environment”:

  • “has me on edge;”
  • X person “is targeted;”
  • “bad mouthing me;”
  • gave “illegal directives;”
  • it’s “gaslighting.”

With each of these phrases, it was not that I did not understand the literal words being used. But they provided no greater clarity as to the offending behaviors than the initial complaint of “harassment.”

Gaining clarity therefore requires digging deeper, almost like peeling back layers of an onion, to get to what the interviewee is actually experiencing or observing. We need to continuously ask ourselves whether we know what the interviewee means by the words being used or whether we are making inferences and assumptions.  If the latter, then we need to peel another layer back, with further questions, to seek specific examples of what the interviewee was experiencing:

  • What do you mean this person has you “on edge?”
  • How is this person “targeted”?
  • “Bad mouthing” you in what way?
  • What do you mean by “illegal directives?”
  • I have found people use the term “gaslighting” in different ways. What does that term mean to you?

Sometimes, the response provided to clarify a phrase is exactly consistent with my assumption. But there are plenty of times when it is not. Gaining clarity through further questioning provides an extra layer of detail, which enables the investigator to better understand the underlying behaviors at issue, question others to determine if those behaviors have occurred as initially described, and analyze the context to ultimately reach conclusions as to whether policies were violated.

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In this periodic Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

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The post Workplace Investigations: Gain Clarity as to Meaning appeared first on Levy Employment Law.