In the first piece in this series, we started exploring sexual harassment.
Sexual harassment is a growing problem in the country, both in the State institutions as well as at private institutions, which needs intervention at the various levels. The piece on vicarious liability insisted that liability and responsibility for the incident which would have lies with the employer, for having empowered the harasser, and placed them in the position that they abused to commit the harassment.
Of course there is need to ensure that there are processes in place to adequately respond to reported incidents of sexual harassment. There is also a need to ensure that the processes are standardised, and do not do more harm to the survivors. This article looks into the processes.
It cannot be emphasised enough how important it is to report sexual harassment! Whether it has happened to you or you have witnessed it, the point is an official complaint must be lodged. It therefore follows then, that for an organisation to classify itself as progressive and committed to creating a safe and conducive work environment for all, its internal sexual harassment policy should make it possible for anyone and everyone to be able to report such incident.
A sexual harassment incident has been reported. What next? Ideally, the steps to be followed should be ascertainable from the internal document dealing with this issue. This way, expectations are managed and more importantly, effectiveness will be easily measurable.
Once a report has been made, it will trigger an investigation to determine whether or not the act complained of is indeed sexual harassment and follow up with a determination of sanctions to follow. The investigation ought to be done by an independent party in order to give the process the best chance of objectivity. Staff members at any level in an organisation are often so used to their work environment that they often do not notice when an act or speech is a ‘bad culture’. It is accepted as ‘normal’ or ‘harmless’ or ‘playful’.
Time is of the essence is sexual harassment matters, that is, the sooner the matter is reported the better! Harassers usually do so habitually therefore the sooner action is taken against them the less victims they will have.
Further to this, when an incident is reported soon after it occurs, it gives the best chance of reporting facts accurately with a fresh memory.
This notwithstanding, it is understood that sexual harassment, like other forms of sexual harassment, has traumatic effects for the survivor, which affects the ways in which people respond. So although there is a recommendation that the sooner harassment is reported the better, the intention is not to disqualify cases that are reported some time after the occurrence of the incident. The starting point for the investigator is to prepare set questions beforehand and some follow up questions. Of course the direction of the interview will be determined by the interview itself. The first interviewee is usually the complainant, followed by the person to whom the report was made.
The rest of the interviewees were going to be determined by the Complainant’s account of what was experienced, seen and heard which would provide leads to the Investigator to the rest of the witnesses.
Other interviewees were identified from the statements of interviewees other than the Complainant. Generally, the first two interviews will give a better scope of who the next witnesses to be interviewed are. The last person to interview is the victim, where he/she was not the complainant. This is quite similar to trial advocacy processes.
Confidentiality must be stressed with each interviewee both at the beginning and end of each interview.
Confidentiality helps to establish and ensure trust, both ways. It potentially allows for free flow of information. At this stage, the interviews are merely a fact finding mission. No one is to be wrongly accused or defamed over a complaint that has not been proven. Interviewees also need to be put at ease by reassuring them that the information which they share will not be used against them so that they are able to share information freely without fear or favour.
The only downside to this is that during this process often other incidents which are known in the organisation but have not been reported will come up. But because they have not been reported and are beyond the scope of the current investigation, there is very little the investigator can do to take them up. This goes to show how important it is for all incidents of sexual harassment to be reported.
Interviews are critical to establishing a sexual harassment case. Done well, and particularly ethically, it has the potential of creating a supportive environment in the workplace. It builds a resilient workplace, which is able to immediately respond to sexual harassment and eventually, ensure it’s overcoming.
This article was written in collaboration with Oratile Gaopotlake. Oratile has considerable experience in developing anti-harassment policies. She also has been engaged to review existing internal policies according to client’s brief and international best practice. In recent times she has conducted in house corporate investigations on sexual harassment reported incidents and presented recommendations accordingly. She has a great interest in the work and endeavours to make work spaces safe and comfortable for all.