“I Complained to HR and Nothing Happened”: Balancing Transparency and Confidentiality When Responding to Complaints

Elizabeth Bille

Senior Vice President, Workplace Culture at EVERFI

Learning Objectives

“I complained to HR and nothing happened.” This is an incredibly disheartening statement for devoted HR professionals to hear--but it isn’t simply a PR problem for HR. It can cause real damage to both companies and their employees. As HR professionals know, maintaining confidentiality is critical when handling highly sensitive issues like harassment and other workplace misconduct. However, transparency is also important for demonstrating accountability, earning trust, and preserving culture. While there is not a one-size-fits-all solution to this challenge, this session will provide several approaches to consider for increasing transparency around complaint handling based on your organizational culture, values, risk tolerance, and compliance obligations.


Key Takeaways:



  • Staying silent about complaint handling causes several detrimental impacts to your culture

  • There are several approaches for increasing transparency about accountability efforts while protecting confidentiality

  • Many organizations today are communicating more broadly about complaint handling and resolutions


"Leading organizations are also starting to share aggregated and anonymized information about how complaints are handled and their outcomes."

Elizabeth Bille

Senior Vice President, Workplace Culture at EVERFI

Transcript

Hello, everyone. My name is Elizabeth Bille. I’m delighted to be with you here today for our session, I Complained to HR and Nothing Happened: Balancing Transparency and Confidentiality When Responding to Complaints.


I serve as the Senior Vice President for Workplace Culture at EVERFI. Before coming to EVERFI about two and a half years ago, I was the General Counsel and Chief Ethics Officer at the Society for Human Resource Management or SHERM. Before serving in that capacity, I also served as a Legal and Policy Advisor to the former Vice Chair of the EEOC. I’ve also been a management side attorney in private practice at a large global law firm, helping companies from small community nonprofits to major corporations with their labor and employment needs.


So with that, let’s get started. In the next 20 minutes or so, I’m going to be sharing with you several strategies for increasing transparency around your complaint handling process. My hope is that you will be inspired to implement one, if not more, of these strategies after our time together today. Again, my name is Elizabeth Bille, and my pronouns are she, her, and hers, and I’m with EVERFI.


Many of you may be familiar with EVERFI and what we do, but for those of you who aren’t, we are an online training company that provides workplace training on a whole host of workplace culture and compliance issues, from harassment and discrimination prevention to diversity, equity, inclusion, and belonging to ethics, compliance, just to name a few.


Let’s dive in. Here’s a question for you. How many of you have heard an employee utter the words, “I complained to HR and nothing happened?” Or actually, perhaps I should ask it another way. How many of you have not heard that phrase? Probably very few of us. I think this statement is one of the most prevalent narratives to plague HR. Unfortunately, it’s an incredibly disheartening statement for devoted HR professionals to hear. Unfortunately, this perception is one that really gained traction during and after the MeToo movement. How disheartening was it to see media headlines like these? What to do when HR ignores your complaints? Or from the Los Angeles Times, She’s harassed at work, she tells human resources and they do nothing. It’s pretty tough to hear, isn’t it? Unfortunately, it’s not just the media that has this perspective, many employees share these pessimistic views about how employers are handling complaints as well. The problem is this is not just a PR problem for HR, this misperception can cause real damage to both companies and their employees.


So for example, according to a SHERM survey back in 2018, 76% of employees, non manager employees specifically, who experienced sexual harassment did not report it. They didn’t report it for two primary reasons. One reason was fear of retaliation. But the other primary reason was the belief that no action would be taken even if they did complain. Now, as this audience knows far too well, the reality is it’s really unlikely for nothing to happen after a complaint is filed, especially if it involves allegations of very serious misconduct like harassment or discrimination. In fact, on the contrary, it usually sets in motion a flurry of activity. There’s calls to legal, there’s urgent meetings, there’s consultations with legal counsel, and often an investigation will follow. But if that list of activities doesn’t include some sort of communication to close the loop with the person who filed the complaint and those who also participated in the investigation, employees may understandably misinterpret that silence as inaction when it’s actually, as we said, probably quite the opposite. The impact of that perception can really be devastating.


04:51

So if an organization is doing the due diligence to address concerns, it is really critical to communicate about that in some way, otherwise, our employees will understandably assume that nothing has been done. So the question we should be asking ourselves is not should we be sharing any information about how complaints are handled, but rather, how much information should we share? When should we share it? And with whom should we share that information?


05:25

Now, of course, maintaining confidentiality, about investigations and complaints, and really a lot of what we do in HR is a central tenet of HR practice, right? Particularly when it involves sensitive issues like misconduct allegations. It’s really expected and it does drive several positive outcomes. First, it helps maintain investigation integrity. It’s critical to have an objective and fair investigation for everyone involved. That can really be compromised if information is shared with people who don’t have a need to know or is shared at the wrong time. That could impact the destruction of evidence. For example, it can also impact what the witnesses say or what the accused says during the investigation if you haven’t talked to them yet. One of the times when the greatest degree of confidentiality is needed, is during this stage of the complaint handling process—the investigation itself. So this is not an area where a lot of transparency to employees is advisable, especially those employees not involved in the matter.


06:38

Allegations of wrongdoing are often very sensitive, and privacy is important. So on the one hand, for example, individuals who may have experienced harassment and come forward with that report, can be very deeply affected by that experience. They may be having anxiety, they may be experiencing embarrassment, they may even have physical and mental health impacts. Those are not uncommon, so it’s really important to keep information about their identity, what they’ve experienced, and the contents of their report, and really limited to those people who have a true need to know for the investigation and to protect them, to support their well being, and also to prevent against retaliation.


07:25

On the other side of the coin of the investigation, the person about whom the complaint is made is, if you will, innocent until proven guilty. Just like we can’t pass judgment before an investigation is complete, you don’t want other people in the organization to either. Allegations can really damage someone’s reputation. So maintaining the confidentiality of the identity of the accused, again, except as needed to conduct a fair and full investigation, helps really ensure a fair process for everyone, and a fair outcome as well.


08:01

Of course, avoiding gossip. Employers often want to keep things close to the vest about how they respond to complaints or the complaints themselves to avoid gossip, and to help the organization move forward from the incident in a productive way. But consider this, especially if the incident was witnessed by a lot of people or if it’s being talked about already throughout the organization, whether the employer says nothing or says something, employees are likely going to be talking about it for some time. So what do we want them to be saying? That nothing was done, or that the incident was taken seriously? So just pause it that we do have an opportunity to refocus the narrative and shed a positive light on the process by having some degree of transparency about the process or the outcome. I’ll tell you about how we can do that in just a moment.


09:01

Now, on the other hand, it’s important not to stay completely silent. If you provide no information whatsoever or a cryptic “we took care of it” specially to the person who filed the report and especially if misconduct was found to have occurred, that can really speak volumes to not only those people who were immediately involved, but to others in the organization as well. Staying silent can actually send several inadvertent messages, and I’ve listed some of those here on the slide. It can send a message that no action was taken, as I just mentioned. It can send a message that the employer is more concerned about protecting the privacy of the accused or the legal position of the organization than addressing the harm that was done or upholding the values of the organization. It can send a message to employees who are inclined to follow the rules and do the right thing throughout your organization that your rules are not actually enforced, and therefore, do they really need to be following them either? It can send a message to employees who may be tempted to engage in misconduct in the future that there are not actually meaningful consequences for doing so.


10:18

When people don’t believe that meaningful actions been taken following a complaint, that can lead them to become disengaged, it can cause them to lose their trust in their employer, can cause them to leave the organization. It can even cause them to get lawyers involved, and escalate the complaint in an external way.


10:40

To that last point about sending an inadvertent message about consequences, that reminds me of this quote from Dr. Anita Hill. She said, “Language crafts expectations, both for potential victims and for the people who prey on them.” So what we say or what we don’t say about how our organizations handle misconduct truly speaks volumes, and all of our employees are listening. So some degree of transparency is really essential to demonstrate that we take action, that we mean what we say in our policies and in our values, and that there will be meaningful consequences for misconduct.


11:24

So in fact, increasing transparency can really create a positive chain reaction of benefits. It can demonstrate accountability, as we’ve been speaking about. We’ve gone to all that work to respond, to investigate. So let’s maximize the benefits of that work, of that due diligence, and those efforts to hold our organization and our employees accountable by communicating about those accountability efforts to some extent. That, in turn, builds trust in what we say, and in our systems. That, in turn, encourages reporting. If we want to resolve minor issues before they become full blown crisis or turned into lawsuits, we really need people to come forward and report concerns before they reach that level of crisis. This is a good thing, not a bad thing. It helps protect us and mitigate risk in the long run, and it protects your employees as well.


12:27

With reporting and responsive action, we preserve our workplace culture. People will know that we take our issue seriously, that we are responsive, and that we really care about making our organization a great place to work. That, ultimately, also helps deter bad behavior in the future. Our employees are increasingly expecting responses, and we are really hurting our organizations in the long run if we don’t follow through. So how can we do this? Now, I want to emphasize there is no one size fits all solution for increasing transparency around complaint handling that will be right for every organization. But I’m going to provide you with three different sets of approaches that I believe do strike a balance between protecting individual’s privacy and the integrity of investigations, while at the same time demonstrating that the organization does take some action.


13:29

An organization can deploy all of these suggestions or you can start with one or two, for example. I do want to say as a caveat, it’s really important to determine which of these would work best for your organization based on your culture, based on your values, based on your risk tolerance, and then, of course, conversations with your legal counsel. You want to make sure that they are comfortable with these strategies as well.


13:58

The first thing that you can do to increase transparency about your complaint handling procedures is to explain your process. For many employees, it’s truly a mystery what happens after a complaint is filed. So for example, if they call the hotline, or if they file a complaint anonymously, or through some sort of reporting channel, or if it’s not anonymous as well. So what can we do to shine a bit of light on this mysterious process of what happens next to give them confidence in that process?


14:36

First, what you might do is consider publishing your report handling procedures just as a matter of practice before any complaint has been filed. You might consider, for example, creating an infographic or some sort of flowchart that you include either in your policies or in your handbook or on your intranet, for example, that outline what happens next after someone comes to HR, or what happens once you call that hotline. You can also share your standard investigation procedures. You could make them generally available as a part of your policies. I would know that, in some states such as New York, the law does require employers to tell their employees about the procedures for investigating harassment complaints. So there’s some legislation about this as well. Now, if you don’t have a documented set of investigation procedures written down, I encourage you to consider doing so. Writing it down can really get make you think about the process, how effective it is. That also helps ensure consistency.


15:46

Second, after a report is filed, it’s also an effective practice to explain your investigation process at a high level to everyone who’s involved, so they know what to expect.Of course, in certain situations, you might not want to share what you’ll be looking at particularly with the accused. But before the person who’s filed the report, you might want to set some expectations about what might happen next in terms of we’ll need to get the other person’s side of the story, we might talk to some additional witnesses, and the like.


16:21

The next bucket of strategies for increasing transparency is to close the loop. Setting up close out meetings after an investigation is complete to update everyone who was involved in the investigation about the results, if you will. You’ll want to do this with the person who reported the issue, the accused as well, and anyone who you interviewed as a part of that process. Then, you’ll likely want to share—please work with your counsel to make sure that this works for you—but you might share different amounts of information depending on with whom you’re speaking.


17:03

For example, for everyone involved, you might want to provide a high level overview of the steps that you took as a part of the investigation. It might sound something like this, “We interviewed several people, including some of the people that you recommended that we talked to. We reviewed documents, emails, and the like. Then, we developed our finding.” Then, of course, you will want to keep following up to make sure that the complainant and anyone who was interviewed as part of the investigation process. Check in on them, make sure that they haven’t experienced any retaliation after that as well.


17:41

Now, for the person who filed the report or the complainant, you might consider sharing a bit more information. You might consider sharing your findings and whether corrective action will be taken or has been taken. So it might sound something like this, “We conducted an investigation. We interviewed several people, like I said before. We were determined that your report of a policy violation was founded, so we will be taking appropriate proportional corrective action going forward.”


18:14

Now, many employers don’t typically share details about what that corrective action will be, but there are some cases where organizations might want to do so or have decided to do so if they determined that the circumstances warranted it. Again, especially in consultation with legal counsel. Those situations tend to be, for example, if the individual who filed the report has already engaged an attorney, or if we thought that they might escalate it if they aren’t satisfied with the outcome. Some employers do sometimes share specifics about the corrective action to show that discipline will be imposed.


18:54

Finally, some organizations are creating a high level summary of the investigation and creating a summary report, which documents the complaint, the steps taken, the investigation, and the finding, and provide that either to the complainant or it’s something also that goes into the the accused or the respondent’s personnel file.


19:17

The final set of strategies is about sharing general information about your complaint handling with your workforce. Particularly if many in the organization were aware of a misconduct incident, let’s say, it was the subject of a lot of conversation, it became public very quickly. For example, you might consider communicating about any broad changes that were implemented since the event. For example, if after the investigation happened, policies were changed or additional training for the organization was implemented, make sure your employees know about that.


19:58

Leading organizations are also starting to share aggregated and anonymized information about how complaints are handled and their outcomes. Let me tell you a little bit more about that. On that last point, we’ve really seen an uptick in the number of organizations that are sharing information about the complaints that they receive, and how they are handling them. So as you can see from this slide, leading organizations are increasingly sharing aggregated, anonymized information about, for example, the total number of complaints they’ve received in a year, the types of complaints they’re receiving, so harassment, financial misconduct, buckets like that, and even the results of the reports or investigations. So they might say, this percent were determined to be policy violations, this percent was not enough evidence to determine either way, things like that. Some of them are also sharing aggregated information about all of the types of discipline that resulted.


21:07

So as you can see from this slide, in 2019, and this is information from Ethisphere World’s Most Ethical Companies list, 35% of the companies on that list made this type of information—reports about the number of complaints they receivem types, and the results, the outcomes—35% of them shared that information with all of their employees. 28% of those companies made the information available in a report to the public, such as their annual report or their corporate social responsibility reports. That number has tripled, by the way, since 2017. I forgot to note, the number who have been sharing that type of aggregated complaint information for their employees has doubled since 2017. Back in 2017, 14% of companies were doing that, now it is 35%. Then, 6% of these organizations are actually sharing these reports with the public.


22:17

This technique can be a great way to, on one hand, maintain confidentiality around specific matters of misconduct. You’ve scrubbed that identifying information, specific details about the incident, names, of course, and the like, because it’s aggregated and anonymized, and at the same time, demonstrating accountability and trust with employees, and of course, with customers in the public if shared externally as well.


22:51

As we conclude our session, I hope that you will consider implementing at least one of these types of strategies in your organization if you determine that it works well for you and your organization. So, again, perhaps shining a light on your processes, pulling back that curtain on how complaints are handled generally in your organization. You might consider amplifying the amount of information that you share through close out meetings after your organization. Also. consider compiling data about the types of complaints you receive and their outcomes. Then, sharing that with your employees or perhaps more broadly if your organization is big enough to be able to have anonymized, aggregated data like that.


23:36

I wanted to share one resource with you as we’re about to depart. I did write a white paper on this very issue, and I’ve included the link to that here. EVERFI.drift.click/balancing-transparency-and-confidentiality. That not only contains the information that I presented here today, but also a case study about one organization and a link to their report. That one organization who has started this process of documenting all of their sexual harassment complaints that have been filed against their employees, and the outcomes of those. They do make it available publicly on the internet, so if you’re interested in reading about that case study, download the white paper, and you can find out more.


24:24

I hope that today’s session has been helpful in perhaps reframing what’s possible in terms of transparency in your complaint handling. Again, it can not only help rewrite that narrative that HR has done nothing, but it also can be truly game changing for your organization as well. Thank you so much. Have a great day.


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