Due Process in the workplace and at school

Almost every day someone is complaining to their HR representative or to their manager that they have been sexually harassed.  Sometimes these complaints are about being embarrassed by looks or comments that are considered inappropriate.  Other times they are quite serious and represent a total violation of someone’s rights to safety.  Some are even criminal.

But, in addition to these genuine complaints which need to be carefully evaluated, there are false complaints – or at least grossly exaggerated ones. 

That’s why due process is so important – and often ignored.  Workplace complaints are typically handled in a one-sided manner automatically believing the account given by the person complaining and not allowing the accused to hear what is being said against him or her and not giving them due process. 

Not only is this true in the workplace – it is true at most schools as well.  Title IX, in its attempt to take children who complained seriously became over-zealous and forgot about due process.  That’s where the new ruling by Secretary of Education Betsy DeVos comes into play. 

Although some people might be upset by the new ruling, most will understand that due process is an important component in dealing with any accusation of misbehavior.  This is especially true when the allegations are about sexual misconduct and most often he/she accusations and denials. 

Education Secretary Betsy DeVos recently acknowledged the seriousness of this issue and need to protect the victim – while at the same time increasing the rights of the accused to due process. She put three new mandates in place to strengthen due process – while at the same time listening to and protecting children. 

I have been writing and training on this issue for years.  I am a strong advocate of fair-play and due process.  Indeed, I wrote my book:  Conducting Workplace Investigations:  Designated Investigator as a result of seeing how one-sided so many workplace evaluations and investigations were. 

I’ve also created two workshops for Illumeo that deals with this issue:  Interviewing:  The Art and Science and Investigating a Complaint in the Workplace. 

Although these courses were designed for the workplace – they are also applicable to allegations at school.  And, they tie in with the intent of Education Secretary De.Vos.

Yes, it is critically important to take any complaint seriously.  That doesn’t mean you should either believe or disbelieve what is being reported.  It does mean that some highly trained, intelligent and neutral person should carefully investigate and evaluate the situation.

In the workplace this might very well be a trained HR or OD manager.  Possibly even a consultant brought in especially for this purpose.  At school, as Ms. DeVos suggests it takes more than one expert to reach a conclusion.  Should we do that in the workplace as well? 

Not necessarily – if people realize they have to be fair and equitable to all sides in the complaint.  If investigators and evaluators are aware of their own “buttons” and biases and turn cases over to others if  they don’t feel they can remain neutral for any reason.

We are all biased in one way or another.  Almost all of us want to protect anyone that has been harmed and punish anyone who does harm to another. 

That’s not the problem.  There are a few main problems:

1:       We believe the first person to tell us something – so we are apt to believe the person making the complaint.

2:       We are biased naturally – that’s why it was so hard for children to be believed.  They were complaining about teachers, preachers, doctors, and coaches violating them.  Responsible adults could not believe that these professionals whose job was to protect children would actually violate them.  Of course, we have not taken huge steps to change this – and now they are mostly believed.

3:       We are biased naturally – that’s why all it takes is for someone to come into our office crying and we will believe they have been harmed. 

4:       If something similar to what is being alleged happened to us or to a loved one, the tendency to believe it is even stronger.

5:       Big lawsuits – big money – if one sues one’s employer due to not being kept safe.  And there are many such lawsuits – we read about them or see TV stories about them every day.  Indeed, there are lawyers who specialize in suing companies for not protecting women (usually women – but not always) from being violated.

In summary, it is so important to take complaints of misbehavior seriously.  It is especially important that we protect our children. We also need to keep our worlkplaces safe.   However, in the USA we believe in the rule of law.  We believe in the importance of due process.  A person is innocent until proven guilty. 

Yes, the standard of proof should be reasonably low – it doesn’t have to be beyond a reasonable doubt – but it should be fair and equitable for all involved.

Well trained investigators and evaluators who are dedicated to being fair and neutral are what is needed both at school and at work.