Introduction
—Gregorio Billikopf Encina , University of California (gebillikopf@ucdavis.edu)

With the consent of the authors involved, I reproduce a number of discussions—over the HRnet and AG-HRnet e-mail forums—on how to deal with a sensitive sexual harassment case. First, we look at the effect of pressuring someone to make a formal complaint, and its possible effect on leading them to withdraw the complaint. When this happens, the issue may go unsolved, and resurface once it has escalated into a larger dilemma. Farm managers also need to be sensitive to an employee’s need for confidentiality, without backing themselves into a corner. Managers must act with an eye for good management practices, which includes concern for (1) the organization, (2) potential legal liability and for (3) worker morale.

Next, we look at mediation. Is there room for mediation in handling sexual harassment cases? What are some circumstances where mediation would be indicated? How would that mediation function? Are there abuses to the use of mediation in harassment cases? Certainly we welcome additional comments regarding any of these issues discussed here.

Confidential Complaints

Let’s keep this confidential
—Jack Hamilton, Wallingford, CT (former E-mail: jackham@nai.net)

During a job interview, Jack Hamilton was asked what he would do in the following challenging circumstance: "As Personnel Director you are approached by a female employee. She reports sexual harassment. However, she does not want to file a complaint and wants to keep the discussion confidential."

Jack’s answer was: "First, I would get a female member of my staff to sit in on the discussion. Next I would inform the employee to put her wishes to not make this ‘non-complaint’ official, by putting it in writing. Also, as the discussion continued, if it appeared as though this was a case of sexual harassment that could be substantiated, I would then advise the employee to file an official complaint or withdraw her claim."

Never agree to "just keep this between us"
—Kent Edwards, Vallen Corporation, Houston, TX (xbdh03a@prodigy.com)

"Once an employee complains or ‘expresses a concern’ to anyone in management—or management otherwise becomes aware of the complaint, the employer now has the legal duty to investigate. You should preserve confidentiality to the extent possible, but do not promise the complainant that her identity cannot be revealed. Explain to the employee that the employer is committed to a workplace free of sexual harassment, that a thorough investigation is necessary, and that part of a thorough investigation includes discussion with the accused harasser. If the employee requests that no investigation be done or says that she "just wanted to let you know" but does not want anything else done, say no. Explain your legal obligation to investigate and take corrective action, and possible liability [of ignoring the problem]. Never agree to ‘just keep this between us.’"

"That depends on what you tell me."
—Dan Thompson, Edge Training Systems, Inc. (dan.thompson@edgetraining.com)

"The manager has an obligation (legal and, I think, moral) to the organization and its employees to investigate such claims, whether that’s the desire of the reporting employee or not. Never make promises of confidentiality that cannot be kept. When employees ask ‘Can I tell you something and you promise it won’t go any farther?’ you must tell them, ‘That depends on what you tell me. You have to trust that I will do what is necessary and appropriate with the information you give me.’"

"Do not pull out your big guns."
—Peter Mlynek (mlynek@chem.wisc.edu)

We’ve faced a similar situation [as that posed in your interview] several times. We’ve found that this is the most common type of complaint, and handling it the way you’ve proposed seemed to have had a negative effect. It seems that blatant sexual (or racial) harassment is rather rare. What is more common is when a woman comes in and says something to the effect, "I kinda felt uncomfortable being around this guy; I guess it could be considered harassment, or maybe it isn’t, I just don’t know..." What we’ve done in such cases is to talk to her, convince her that we are on her side, get her to tell us what happened as much as she is comfortable with, but don’t really pry into it. We don’t make judgments whether she is right, or wrong, if she is too sensitive or not (you can’t consider that all the people have the same feelings; perhaps she has had trauma in her past, we just don’t know). Then we ask what she wants us to do about it, and 90% of the time she just wants us to talk to the guy(s), and have them knock it off. And we basically do just that. [We find a comfortable setting and] basically say, "Look Joe, I know things are tough, you may want to kinda watch what you do and say; what you say and do actually does have a great impact (building up his ego). It’s just that some people who work with you might be more sensitive to your actions than you think, and things might get construed in a way that could really be harmful to you." After this we just inform her that its been taken care of as we promised her, and ask her if that was OK, and tell her to keep in touch. And we keep in touch with her even if she doesn’t initiate it, as she still may [harbor] some anger to him—or us—in which case we’ll again do what we can to help her.

What we’ve found is this:

1. Take care of these problems when they are still little. Do not pull out your big guns (have hearings, keep notes, etc.) with these small but potentially devastating problems. Do not alienate either side by blowing this out of proportion. When you start having meetings, demanding that things get put into writing (either file a complaint or shut up), this turns people into angry monsters, and someone is bound to lose, and the organization will definitely be worse off. No side in these cases can be allowed to lose face.

2. We view others in the organization as our customers, and it is our duty to take care of such problems. It is essential that both parties be happy, that this was just a misunderstanding, and that neither has to go through a big painful procedure of having hearings, filing paperwork, etc.

3. Communication with all workers is very essential. Make sure that you are open at all times to others. Make them feel that you are there to serve them. When you start to demand that people make appointments (a friend always has time for a friend), when you start giving them copies of rules, and telling them what the grievance procedures are, you’ve already blown it. Give them your home phone number to have them call you at 3:00 am if they wish to talk. You are there to serve the company by making sure that these kind of things get taken care off.

4. We are very well prepared to take care of the really big problems when we actually have to use the big guns, and have used them in the past, and we tell both parties that these big guns are available if they wish (however, this approach is very expensive financially, timewise, and especially morale-wise). Very few people ever want to do this; they just want to have the problems taken care off.

"I would have liked assistance early on"
-Rebecca Lopez, M.A., Training Manager (rlopez@bethabe.org)

Yes, I have been the victim of sexual harassment [in a previous job]. Unfortunately the attempt to mediate came way too late, in my opinion. By the time anyone made a move to mediate, the entire department was so polarized in their viewpoints that either he had to go, or we (the victims and those who "sided" with us) were going to go. Had an attempt to mediate been made in the very beginning-at the first sign of trouble-I think that there may have been a chance that it could have worked and the department could have been salvaged.

Most people I have discussed this with don't seem to agree with me. They seem to think that mediation would serve to further victimize the victim. Many of the people who feel that way, may I add, have never been a victim. I do acknowledge that some victims may feel re-victimized and they have a right and I respect those feelings. But in my particular case I was offended by the assumption made by others (who never even bothered to ask) that I would not be able to "handle" a mediation and that I would be "re-victimized."

I would have preferred to keep the situation out of the legal system. What was most disturbing to me was the environment I had to work in for months on end while we waited for the trial. What used to be a group of people who, more or less, worked and coexisted peacefully side be side, became nothing more than a huge back stabbing game of "us" vs. "them." It was childish and uncomfortable.

It was no longer just an issue of sexual harassment and hostile work environment. Peoples' egos became seriously engrossed in the whole thing. It was almost as if vengeance and being "right" were the only outcomes anyone was looking for, whether they were the offender, the offended, or merely a coworker. No one was interested in finding the "win-win."

I would have preferred if early on I (along with the other victims) would have been offered assistance in resolving the conflict while still maintaining our work group. I would have been willing and able to work with the guy if we could have come to some sort of resolution. But because mediation wasn't even tried until well into the case, it was beyond hope.

In terms of facing the person who victimized me, it probably depends on who the person was and what they did. Generally speaking, I can't foresee myself as having much of a problem under almost any circumstance. But some of the other women involved in my case suffered a great deal, and their suffering was real.

Many women do not like that I did not want the guy to have to "pay" for what he did. My personal opinion is that we as a society have become way too willing to let the legal system handle things that we can sometimes handle on our own. Should some harassment cases make it to court? Yes. Should ALL harassment cases make it to court? No way. All I wanted was for it to stop, and I think, at least on my behalf, successful mediation would have done the trick.

"Face-to-face discussion is very rewarding"
-Howie Wright (handl@futurecareerdirect.com)
Former ombudsman specializing in resolution of human rights complaints

I frequently used the following analogy: "Human rights complaints (sexual harassment being one of the issues) is very similar to getting a sliver or piece of glass in your finger. If the object is removed very soon, the finger heals quickly and the incident is soon forgotten. The longer the object stays in your finger the more difficult it is to remove, the longer it takes to heal and in the most severe situation amputation may be required."

Dependent upon the length of time, the severity of the harassment and what the complainant wants as resolution, mediation will work. I had great success in mediating complaints that had not traumatized the complainant. If the complainant agrees with mediation that was always my first choice. Having a policy, a procedure to deal with complaints, and having the employees aware that complaints will be dealt with is very important and I know would support mediation.

Confidentiality is absolutely critical and was paramount in any of my investigations. I used to start out my interviews during an investigation by telling the interviewee that what we discussed was to be kept in confidence. They were not told who else was being interviewed or details that they did not need to know. I also coached them to say, if they were asked by others, that the situation was being looked after and there was no need to discuss it. In most cases, my manager was not aware of who I was working with and would only be informed of the most severe complaints. All files were confidential. Others were informed on a need-to-know only, and not with details.

In my work it was always important to put the complainant first. If he/she agreed to a face-to-face meeting, I would coach the complainant on what to say (e.g. how they felt when the incident(s) occurred), what they are looking for (e.g., probably wanting the behavior to stop) and an apology. We would frequently role play so the individual would gain a comfort level.

I would also coach the accused and conduct a role play so that they would have some idea of what was going to take place. At this point I would bring the 2 parties together. I would sometimes start the discussion but usually the complainant would lead off the conversation. I have found that the accused did not always realize that what had happened was upsetting to the complainant. If I believed that was true I would coach them to say that to the complainant.

The meeting was always conducted in a neutral place. My preference was a room without a table so neither party could hide behind the table or desk. If it was a boss/subordinate, and the only place to meet was in an office, the boss could not sit behind the desk or in the power position. The complainant or I would usually sit in the power position or all parties would stand.

Helping someone gain the courage to have a face-to-face discussion is very rewarding for all involved as it usually always reduces the tensions and brings back more control to the complainant.

"Mediation concerns in sexual harassment"
-Gregory Encina Billikopf (gebillikopf@ucdavis.edu)

At times, sexual harassment can be complicated and not so straight forward. In one particular case I was sure that two men, involved in harassing a woman at different times, would have to be terminated. After a careful interview, the situation turned out to be much more complex. It is possible, then, that there is more to the mediation process than a one-way apology.

Mediation could potentially be very theraputic for all the individuals involved, if handled properly. I would add a caution, however. Do not place the burden on the harassment victim to decide what the organizational response should be to the perpetrator, if found guilty. In one case the victim may simply desire an apology and a stop to the negative behavior. While the perpetrator may be given the opportunity to apologize, the organization may take additional steps such as a written warning, suspension, or even employee termination if the situation was serious enough.

In a different case, the victim may strongly call for termination of the offending employee. If the nature of the harassment was serious enough, and if the organizational options were limited (such that both individuals would be forced into frequent interaction), I would strongly weigh the victim's desires in this case. In a case of similar magnitude, but in an organization with multiple locations, serious consideration to transferring the perpetrator along with an appropriate disciplinary response (e.g., suspension, written notice), may be better options. Certainly, vengeance should not play a role.

The value of mediation, then, would be to help the individuals involved to be able to move forward in their lives, finding some sort of closure. The opportunity to apologize and be apologized to, can be very powerful if it is sincere. The value of role-playing ahead of time, before the individuals are brought together, cannot be overemphasized.

My inclination would be to offer the opportunity for mediation before making a disciplinary disposition regarding the guilty party(ies). Obviously, early intervention is the key, in terms of preventive workshops and catching problems before they fester.

Sexual harassment is a special type of interpersonal struggle. Chapters of interest that deal with power and abuse of authority, mediating conflict, and employee discipline can be found in the on-line book, Labor Management in Ag: Cultivating Personnel Productivity.

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