Do you inform the accused?
Gregorio Billikopf Encina
University of California

A dairy employee, L, accuses a co-worker, X, of wrongdoing, some sort of harassment. This wrongdoing took place at employee L's home (in town, away from the dairy). L feels it was employee X who did this. The evidence points otherwise. Do you inform employee X that there has been accusation against her/him or try to "protect" and spare her/him the pain?

Once X knows he/she has been accused, the psychological damage has been done. But, if X is not informed, are his/her inherent rights somehow violated? What happens if X finds out later that she/he was accused but was never informed? Does it matter if X is a very sensitive person who could be traumatized by such an accusation? How should these issues be balanced?

While I am a great advocate of people talking with those who they feel have offended them, and trying to resolve problems at that level, I do not feel it is wise to confront someone with an accusation such as this without proof. Thinking aloud, it seems to me that each case has to be considered separately. Factors to weigh, include the people involved, the nature of the accusation, the strength of conviction of the accusing party, and the likelihood that this person might find out some other way. Or perhaps I am wrong, and it is better to always inform the individual who has been accused. I shall have to think about this some more.

Unethical not to inform
Don Avery

It is my firm conviction that, once the accusation has been discussed amongst several people (particularly those in authority), that it would be unethical to not make X aware of the situation.

Take each case individually
Randy Britton, SPHR
Director, Employee Relations, Regional Medical Center at Memphis

Clearly whatever you decide has to be conditioned by the individuals involved and what effect you believe your action will have on them. However, as general rule, I would say that you have to ask yourself what you would hope to achieve by informing X of the accusation.

If you need to question X as part of your investigation or if you are afraid of L creating trouble, these would be good reasons for telling X about the accusations. But, absent some good reason for telling X, you should inform L that you believe his/her suspicions are unfounded and leave it at that. You would probably want to warn L about the consequences of harassing X or spread gossip about X, etc. But, I don't see that there is any inherent right for someone to know that they have been the subject of a false allegation.

Need to be human
Douglas M. Max
Managing Director, LR Communication Systems, Inc.

First, I'm not a lawyer, just a mystery fan, and I think you've got a good mystery here. My impression is that right now your focus of thinking is on the wrongfully accused (you think and probably hope) employee X. One thought I have is to ensure you've made yourself well available to person L. Since you've said L thinks it's X, then I'm guessing the harassment (of whatever nature) didn't happen directly to person L, but to his or her property, but I could be wrong.

I'd discuss my concerns with L, perhaps encourage her/him to go to the police, but also encourage her/him to not discuss this with other employees until this accusation is substantiated with evidence. I'd tell L that if X is the perpetrator, what action you'd take.

I might also explain why you don't think it's X and why you think it's someone else. I'd also say that X's father died and you don't want to add to his/her misery...but will if the evidence points that way.

If L has already blabbed his/her suspicions around, then I'd agree with Don; bring it up to X, gather whatever "evidence" you can from him/her, and if it's incontrovertible that X couldn't have done as suggested, let L know. If the people in authority do know, presumably you can trust them not to blab it around, but you might want to specifically ask that they don't.

Regarding some of the other posts that suggest that this situation may not be of concern to the organization, unless it can be tied to a company activity, I have the feeling I'm about to get into trouble here. Here goes.... Not being a professional HR person, I nonetheless am sensitive to the need to separate where a job begins and ends, and that also there may be liability issues involved once you involve yourself in a situation you could otherwise legitimately avoid. But, honestly, I think if someone was to go to L and say "this is of no concern to the company," I think it would end up making it worse on everyone.

Can't an HR person get involved as a person without legally binding his or her company to liability issues? Can't he or she empathize, listen, suggest? This is an employee who's been harassed. Wouldn't a company offer EAP assistance to a victim of a crime, whatever help they could to an employee who broke his or her foot and needed a closer parking space? We don't know the nature of the harassment, that's certain; but L is obviously troubled by it and I think an employee's well being is, or should be, a concern of an employer. I think there are times to disagree with the fear that those of the legal profession might try to create throughout an organization and just act like a feeling human being.

Duty to investigate
John McLachlan
Fisher & Phillips LLP

You raise challenging issues on both a personal and legal basis. An employer has a duty to promptly and thoroughly investigate allegations of harassment and to take appropriate corrective action where it concludes after a reasonable investigation that illegal harassment did occur.

All of the evidence seems to you to point to someone other than the accused individual, although you doubt that the complainant will ever accept this conclusion. However, a careful investigation generally supposes that the investigator speaks to all involved parties. That would suggest that you interview employee X as you developed the facts. Perhaps you might learn something from the interview with X which confirms or further disproves his involvement. It seems very difficult, if not impossible, to leave her/him out of the picture if there is going to be a thorough investigation. You also have a duty and I find it difficult to see how you can establish that you did a thorough investigation without speaking to her/him about the charges.

There is another threshold issue related to the question whether the harassment at L's home is related to work. If it is not related to the work place, I believe that your investigation should indicate that. An employer has a duty to investigate but not to assume liability which is not fairly placed at his doorstep. The employer isn't responsible for every evil that befalls an employee. There may or may not be an employment connection on your facts. If there is none, it should be so stated.

After you have conducted the investigation, some of your conclusions may not be what L wants to hear, but so long as you have really worked to get at the truth, you are not required to be omniscient. You should let her/him know your conclusions and the basis for those conclusions and ask her/him to immediately inform you if there are further problems. Another reason for Employee X to be aware of the situation is so she/he can conform his conduct to your requirements. If she/he is unaware of the situation, some very innocent comment could be misinterpreted by L, which if he were aware of her concerns, could otherwise be easily avoided. Ignorance could well not be bliss for X on the facts as you have outlined them.

Can you really protect?
Gregorio Billikopf Encina
University of California

Many of the reasons for informing and involving the accused individual have been well presented above. I wanted to post a follow-up note that illustrates the lack of foundation in my original thinking. Yes, if this was a case I could re-do, I would handle it very different. For one, I should have told this employer that I knew the people too well to give good advice. There is a lot we did right in this particular case, but I want to focus on what went wrong, and some of the lessons I learned.

For the record, we did conduct an investigation that cleared the accused individual ... albeit not as "scientific" as some might have suggested. And talking about scientific, when my oldest son was about eleven, he fell off a drop of about three feet onto a cement sidewalk below. One knee absorbed quite a bit of the blow, and became swollen. The doctor who examined him used a metal measuring tape to check his good knee, and then measured the swollen one. When measuring the latter, my son almost cried with pain. With a very grave tone, the doctor then pronounced the obvious, "The knee is swollen."

I agree that trying to shield the accused employee was a mistake. While we took the situation very seriously, someone could argue that perhaps we had not, since we had not interviewed the accused employee.

It takes much skill to handle such situations in the best of cases. Knowing the people involved, however, can color our thought-process and behavior so we cannot be effective. I somehow felt that despite knowing the people, that I could remain unbiased. I was wrong.

I can see now, how management sometimes can get themselves into a deep whole, and do all the wrong things, when a labor issue hits too close to them. For instance, how natural it may be for a manager to defend a foreman being accused of sexual harassment, and tell the victim that this individual "would never do such a thing ..." when indeed the foreman had.

In the original post I had stated that there was a risk that the accused individual would find out anyway. At least three different ways that the accused can find out, include: (1) being confronted directly, or through a lawsuit, by the person who felt harassed, (2) gossip, and (3) something I should have thought of, through the changed interpersonal dynamics between the individuals. In our case, the person being accused noticed there was something strange going on, as L no longer returned her/his greetings (e.g., such as "¡buenos días!").

Does this mean that there are never cases when one would not inform the accused? The need to take cases individually and think things out, always has merit. Too often, people act out of policy or rule, without considering what is behind these. Nevertheless, this experience has taught me that more harm than good can come about by not confronting situations squarely. Next time, my advice to a farm employer is more likely to emphasize the importance of talking to all the individuals involved.

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