Watch Your Language: Workplace Investigations & What We Say

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Fran S.

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#MeToo has been a powerful moment. Some of its aftermath has been good, such as employers paying more attention to their complaint process, employees feeling more empowered to speak up, and burgeoning models for bystanders and allies to add their voices to the need for safe and respectful conduct.

A less happy result, IMHO, is the well-intended legislative efforts in several states to mandate sexual harassment training (which is not empirically linked to an actual reduction in harassment), sexual harassment policies, and sexual harassment posters, among other things.

Why less happy?

Because sexual harassment is only one form of workplace harassment, and creating mandates about only sexual harassment seems to place it on a pedestal above racial, ethnic, religious, and other forms of toxic, harmful harassment, perhaps obscuring the marginalized groups who suffer mightily in many workplaces. It is, to my mind, a tactical error that will have unintended consequences – one I have written to many a state legislator and agency about.

Perhaps a more manageable problem is the drift of workplace policy language into the language of criminal behavior. I have increasingly heard HR folk refer to claimants as “victims,” respondents as “perpetrators.” This language, while more than appropriate when discussing criminal conduct and the rarely false report of sexual assault, is not helpful, and may be harmful in the workplace. The vast majority of workplace misconduct claims rise not to the level of criminal conduct, but rather, violations of employer policy. The conduct involved can range from a crass or unkind utterance to nonverbal gazing or ogling to insensitive references, to casual racism, sexism, ageism, ableism and the like. These SHOULD be reported, investigated, and corrected. Even persistent incivility is harmful and corrosive and employers should take concerns seriously. The criminal justice language, however, risks positioning those responsible for fact-finding and managing employee relations as advocates with predispositions, and jeopardizes the perception of fairness. I may well believe survivors of sexual assault, but as a workplace factfinder looking into a wide variety of misconduct, I must make no assumptions about what happened until the evidence ultimately supports a particular version of events. When those facts are found, it is rare (but not nonexistent) that terms such as “victim” and “perpetrator” are appropriately representative of the findings. Those are powerful labels, suggesting every infraction reported renders a moral dyad of bad (harmful) and good (vulnerable.)

It is important as part of this discussion to recognize that when workplace behavior is found to rise to a level of misconduct, it is common for an employer to determine that the infraction (an inappropriate email for instance) warrants discipline or a warning, but will not lead to termination. To say that this violation renders the disciplined employee a “perpetrator” attaches a label suggestive of an immutable, dangerous quality to that employee – one who may well have learned a lesson and never again engage in any inappropriate conduct. To be clear, on the other hand, several recent accounts of high-level executives coercing and forcing employees to engage in sexual behavior, once verified, certainly rise to the level of criminal conduct and, once verified, the conduct is appropriately referred to as perpetration.

To refrain from polarizing language when learning about workplace concerns does not in any way suggest a diminishment of concern, response, vigilance, and accountability, so much as a steadfast effort to be fair and proportionate. 

Facts are important.

Accuracy and precision are important.

Language is important.


Fran S.

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