By: Anne McCord
Businesses often balance the need to conduct a workplace investigation with other, less invasive, inquires into the workplace culture. This article highlights the benefits of both investigations and culture assessments and which approach to use based on circumstances.
Workplace investigations can be disruptive to employee engagement and productivity levels and may have minimal positive impact to the employee experience. Whereas workplace culture assessments provide insights into what is working and where the organization should invest to improve engagement and minimize risk. However, there is not a straight forward answer as to which approach is best as circumstances and underlying politics and culture are important factors to weigh when determining the best approach to problem solving.
To make the best decision to support employees and the business, Human Resources and Legal Counsel need to consider the source of the concern, the subject of the concern, and the relative risk to the business if the concern is not addressed adequately.
The following scenarios can provide guidance to this complex assessment:
Scenario 1: The Human Resources department has tracked turnover in the Marketing department over time and noted that in the past year more employees were leaving because of concerns with the leadership style of the Chief Marketing Officer. Of the 10 departures (30% of the team), four cited favoritism as a the primary reason for leaving, three said the CMO treated the younger team members better than those with longer tenure, and the remaining three said that they felt the environment was generally hostile. No departing employees raised specific concerns about different or hostile treatment based on protected class, although the feedback about younger team members being treated more favorably could indicate an age-based discrimination issue.
Based on these facts, HR met with Legal Counsel to discuss the concerning theme around turnover in the past year. The organization decided that a climate survey was the best approach to get a better understanding about leadership in Marketing, employee satisfaction and any themes that would necessitate further HR support.
To gather this information, the current Marketing team participated in an online survey that gathered information about leadership, communication, satisfaction, and whether or not the participant had witnessed or experienced behavior at work they considered problematic. The survey identified opportunities to improve engagement and satisfaction levels with more and predictable communication and strategy from the CMO, and themes that the new CMO tended to dismiss feedback from long standing employees to the benefits of newer (and younger) team members.
Armed with this information, HR was able to engage with CMO and other leadership to highlight a plan of action and mitigate potential liability in the future. The CMO was hired to turn around a marketing organization that was not meeting the needs of the growing company. Instead of presenting a clear strategy and engaging with the team to define how and why that strategy was important for the future, the CMO spent time with the newer team members they hired from a prior company which created an “us vs. them” mentality. With coaching, the CMO was able to change their approach and engage with all team members to align on strategy and roles. Turnover decreased, and the Marketing team excelled! Success!
Scenario 2: Over the past six months, the Compliance Department received three anonymous complaint through the ethics hotline about the VP of Research and Development. The first two complaints were vague in nature, but suggested the VP was prone to make inappropriate comments about gender identity and sexual orientation. The third complaint provided specific details and witnesses to inappropriate commentary based on gender identity and sexual orientation and stated that if something did not change soon, they would file a formal complaint with the EEOC.
The VP of Compliance met with Legal Counsel and they decided that a workplace investigation was warranted given the details provided in the third complaint. Because the subject (or respondent) was a high ranking executive, they hired an impartial outside investigator to look into the concerns.
The investigator developed an investigation plan based on the details from the third complaint, an organizational chart, and company policy. Starting with the witnesses identified in the third complaint, the investigator identified first hand witness accounts that supported the concerns raised in the complaints and received Teams messages corroborating inappropriate behavior by the VP. Although the VP denied that they made the comments attributed to them, a structured credibility assessment conducted by the investigator found that the VPs denial lacked credibility.
The VP of Compliance and Legal Counsel received the investigator’s report with a substantiated finding. The details in the report provided a tool for them to address the concerns with the VP of Research and Development and put in safeguards to ensure the conduct did not continue.
Conclusion:
Both workplace investigations and climate surveys can provide helpful and important information to the company to address conduct that could violate policy, codes of conduct, or laws. Climate surveys are most beneficial when concerns are identified before allegations of discrimination or harassment have been made. Once a company has been put on notice that behavior may violate Title VII or workplace discrimination or harassment policies, a workplace investigation is the best tool to protect the company and employees.
Companies should be mindful that once they have been put on notice, even via anonymous compliant, they have a duty to respond. Using a climate survey in lieu of a workplace investigation could create more liability and backfire. Thus balancing the appropriate approach carefully with guidance from Legal Counsel is imperative.