The Importance of Having a Confidential Reporting System in Place

“It took a lot of courage for me to come forward and to work with a therapist to get where I am today. I’m not sure I would have ever come forward without the guarantee that my name wouldn’t be made public. It is very painful to look back at my life and see how this has manifested in so many negative ways. If my name were to be public I would have to relive the abuse each and every time I was asked about it.”

— Anonymous letter from a survivor

When Naomi was promoted to work in the indoor store of the lumberyard, she was proud. She was good at her job and could run the forklift in the outdoor store as well as anyone, but the indoor store team had benefits she had not previously received. She saw long-time sales people with company cars, company cell phones, and commissions. She worked her way from the accounts receivable job to run the indoor sales. But, as time went on, she did not receive the same benefits as the men who were indoor sales people.

Even worse, when we first met she confessed to me with a great deal of embarrassment that her manager was sexually harassing her. He had pulled up a co-worker’s skirt, snapped bras, propositioned Naomi, and showed other invasive offensive behavior. This had been going on in one form or another for eight years. She was terrified because it seemed to have suddenly escalated to him fixating on having a sexual relationship with her. She explained to me that her hair had started falling out and that she would have panic attacks in the parking lot every morning when she drove in for work.

I asked her if she had reported to her company, and she explained that her general manager (the harasser) was who she was supposed to report to. Above him was the regional HR manager. I asked her if she had told the regional HR manager, and this is what she explained: Months earlier, a man who worked in the outdoor part of the store had called the regional HR manager to complain about this same general manager. He reported that the general manager regularly made discriminatory comments about him and other Latinx workers. So, what did the HR manager do? She knew the general manager, and rather than keep the report confidential and take training and intervention steps to stop the racism, she immediately called the general manager to let him know about the complaint. The general manager retaliated against the outdoor store workers. The discrimination got worse, but the employees were afraid to say anything.

Naomi saw this play out, and she knew it would not be safe to report what was happening with her. She knew the manager had a gun at home, and she was afraid of what he would do to her if she reported. So, in her mind, Naomi was left with the choice to either put herself in physical danger or file a lawsuit and leave the company. She felt she had to choose the latter.

Naomi’s story demonstrates the impact it can have not only on individual employees, but also on the business itself, when business owners do not provide employees with a confidential reporting option. In her case, the company lost at least two relatively high-level employees and had the public perception and financial costs of a lawsuit. I represented Naomi to a successful settlement, and as I talked about earlier, Naomi made amazing progress with power dynamics tools. But it’s possible that a confidentiality policy and mechanism for responding safely to complaints would have avoided all of those expenses both for Naomi and for her employer.

Now, the counter argument to what I am saying is that when there is a report of misconduct, business owners want to investigate, give each side a fair say, and evaluate what kind of discipline is necessary. I’m not totally discounting that system as necessary if and when discipline is called for and needs to be considered. When an employer finds out about misconduct, it is important to take steps to protect others who might be in danger. And, many employers want to give the accused employees a chance to share their perspective and follow progressive disciplinary standards that create a fair experience for everyone.

If an employer can find out about a problem early on, it is less likely to even require investigation because the problem behavior is often still at a level of interpersonal tension, not disciplinary issues. Also, in most cases that do not involve the government or a union, an accused employee does not have the right to an investigation in an employment situation. Like we talked about before, no complainants want an investigation. They want safety from harassment and fair treatment, so they will tolerate an investigation if necessary. Most harassment, discrimination, and bullying investigations do not result in significant discipline. Those that do result that way generally do so not because of an investigation, but because there is clear evidence at the outset of something that reflects badly on the employer.

As a lawyer, I am trained to do investigations, but my experience is that at best they lead to one employee being ostracized from the community – at worst they lead to many employees leaving.

The Equal Employment Opportunity Commission (EEOC), which is the federal agency that regulates employment in the United States, reported in a 2016 Task Force Report that roughly three out of four employees experiencing harassment never report the harassment that they experience. Those employees more often leave their jobs rather than face the potential retaliation, ridicule, questioning, blame, or even silence that most complainants face. The task force report describes that the most common response to a report of harassment is retaliation.

Because women, minorities, and other disadvantaged groups are most likely to face harassment, this has created a category of “career refugees” escaping from one job to another because they are targeted based on characteristics they have no power to change. Employees who have done nothing wrong are bearing the financial burden of harassment.

Employers, too, face the expense of retraining, and the EEOC alone reports that it recovered $164.5 million from employers on behalf of employees in 2015 (in 2018, the EEOC reported it recovered $70 million from employers based on sexual harassment claims alone). Those millions are only the “tip of the iceberg” when it comes to the investments business owners are making into ignoring and fostering harassing and discriminatory workplaces.

The only people even close to benefiting from this tremendous investment into a culture of silence are the worst of the worst – the people who intentionally want to harass and discriminate against others. I have seen rare instances of those employees, but the majority of actual harassers and people who discriminate, in my experience, have simply not received appropriate information, training, and consequences around discriminatory behavior. They have been surrounded by people who believe the same things as them, and so they have not had their biases seriously challenged or really considered the impact of their behavior.

Most people who harass are actually “good” people in other areas. They are engaging in problem behavior, though, and that problem behavior can even become dangerous. When that problem behavior is never spoken about, they have no chance to change, but they will keep driving away good employees and interfering with workplace productivity.

If you don’t know about the problem, you can’t intervene. But, you are unlikely to learn about the problem unless you put into place procedures to protect the employees who are willing to report, such as designated confidential reporting procedures for reports of problems that do not rise to the level of physical danger. For example, giving employees access to multiple reporting options like a manager, human resources person or other administrative staff, and an outside reporting person can allow them to choose a comfortable reporting person. In communicating a problem with a comfortable reporting person, the employee is also more likely to feel able to make clear choices about the type of response they want.

It is important to have employees designated as reporting options trained as to how to respond, however, because many managers falsely perceive a complaining employee wants confidentiality where she doesn’t or vice versa. Employees are also likely to perceive reporting people as encouraging them to do the opposite of what they want (for example, a complainant who wants confidentiality is likely to perceive a reporting person as discouraging it and someone who wants an investigation is likely to also perceive discouragement that way.) This typically stems from the employee’s own self-doubt and criticism, and it is an important component to hold space for but create clarity around.

To the extent possible, designated confidential reporting people should be trained to give options and to be guided by the complaining employee’s genuine preference, without encouraging the employee one way or another. If the complaining employee wants to resolve the problem while maintaining confidentiality and just needs some advice, the designated reporting person should still make sure to check in about the problem later. If the complaining employee wants someone else to lead the response to the problem, it is important that she understand clearly how the non-confidential process will go.

Some employees do not want their reports to be confidential. Others do. The best way to navigate that is to make no assumption about what the employee wants and to ask questions. A question like, “Have you thought about whether you would be comfortable with me talking to the other person about this problem?” feels more neutral than a question like, “Do you want to remain anonymous?”

It is pretty common for employees to feel pressured, whether you suggest that their report stay confidential or whether you suggest that it become public. Regardless of what you think is best, your opinion matters. Your obligation as an employer to keep a safe workspace is your obligation, independent of what the employee wants. But you can still work with the reporting employee in a productive way, even if you feel you have an obligation to confront the behavior. Sometimes, you can suggest that you feel you need to confront the behavior and ask the employee if she has any preferences or concerns about that. Other times, all the employee needs is permission, perspective, and advice about how to handle a problem situation. Most employees are willing to allow their report to become known if it is done in a respectful way.

Most employees who have the opportunity to maintain confidentiality come to realize that they are strong enough to go forward without it. But, when they are not given that option, they are likely to avoid reporting anything until it has gotten so bad that they are ready to quit. If you are able to do the hard work first of looking at your own biases, stepping into your power, and creating a safe space to talk about difficult things, you are more likely to hear about problems before it’s too late.

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This is a selection from The Inclusive Leader's Guide to Healthy Workplace Culture. For a free copy of the book, visit www.HealthyWorkplaceCulture.com. Or you can purchase online via Amazon.