This post addresses the HR implications for an expected change in the landscape for reporting and investigating sexual harassment, specifically harassment that is alleged to have occurred years in the past. When receiving an allegation about long-past harassment, you should:

1. Let the employee know you appreciate the fact that they had the courage to report the harassment and that you take their issue seriously;
2. Be honest with the reporter that the time between the incident and report may make it more difficult to prove the allegation and the time between may also impact the outcome. Let them know that although your questioning may be lengthy, you are asking about more details in order to be in a better position to evaluate their claim.
3. Investigate fairly and take appropriate action.

Note: It is important to blame the “time between” the incident and the report and not blame the “delay in reporting” because the later could come across as blaming the victim.

Bill O’Reilly was taken off the air, apparently, as a result of settling a lawsuit for an amount that many believe was an admission of guilt. Harvey Weinstein was fired by his own Company largely because of a pattern of harassment over decades.  Michael Oreskes was removed from his position at NPR because of harassment that was reported in in the early 1990’s and again in 2015 (although it was not acted upon at the time.)  Kevin Spacey caused the collapse of “House of Cards” as a result of the reporting of a 30-year-old incident with a 14-year-old boy (and a bizarre admission from him.)  Mark Halperin was fired by NBC as a result of the discovery of serious harassment complaints from when he worked for ABC nearly a decade ago.  Amazon Studios chief Roy Price resigned under pressure as a result of an allegation that he made lewd comments in 2015.

The rash of reported incidents highlights the need for discussion in the human resources community about how to handle incidents that are reported long after they occurred.  While we should celebrate the fact that victims feel free to file a complaint, we can’t be oblivious to the fact that some men will feel threatened by the prospect of a decades old complaint to which they feel they can’t defend themselves – and these allegations will be more difficult to prove.

The issues in the world of entertainment (e.g. Bill Cosby and Kevin Spacey) are based largely on publicity, but the implications in regular corporate environments are as important.  I suspect the coming years will see more reports from victims and alleged victims of harassment long after the incidents occurred.  More reporting is a good thing, but we need to be prepared.

Before I detail a way to evaluate these issues, let me highlight a best practice or two about how to investigate normal harassment allegations.

First, it is important to establish a culture where harassment reports are welcome regardless from whom they come and whether or not they are timely.  Although HR will always encourage and would prefer immediate reporting by the impacted party, late reporting is better than never.  Make sure you are thanking the reporter regardless of how long it is after the alleged incident.

Second, during investigations it is generally important to avoid disclosing the name of the reporter and the name of the alleged harasser.  On one hand, you want to assure that there is no retaliation (even by peers) against the reporter.  You also need to make sure that a false claim of harassment does not destroy someone’s career and life.  When necessary, you can ask specifically about each member of the team: “OK – I want you to tell me if you have ever seen any member of the team act inappropriately or had someone act inappropriately towards them . . . Let’s start with . . .”

Finally, substantiating allegations is important before taking action.  The standards for private employers are not the same for a criminal case, and one could expect to have significant difficulty substantiating a 10-year-old claim, especially if the accused denies it. Often employers use what can be called “aggregated substantiation” – in effect, using multiple similar reports to determine that is more likely than not that the accused is guilty of harassment.

As more and more women feel comfortable reporting allegations, human resources professionals will have to confront how to handle untimely reports and will also have to determine what to do if a late report is substantiated, but the incident occurred many years ago.  Here is a model of how to handle the incidents:

1. Complete a more thorough investigation: In spite of the time that has passed, make your best effort to investigate the matter fairly. Ask more questions about time and place, witnesses, corroborating documents, other potential victims, etc. If you determine that the allegations are substantiated (even if by aggregated substantiation), but if the most recent incidents and/or threats of retaliation are more than a year old, complete a supplemental inquiry.
2. Supplemental inquiry: Ask very specific questions of current employees about the behavior of the accused, mentioning his name, to determine if any of the bad behavior has occurred more recently than the substantiated allegation. While the questions may risk hurting the reputation of the accused, you are only doing so because a previous allegation was substantiated.
3. Go back in time with your decision-making: Based on what was substantiated, determinate what action should have been taken when, and what implication that would have on the employee’s current status had the action been taken. In effect, determine what would have been done if:

• the report was substantiated at the time;
• the accused was disciplined;
• the accused behavior changed (assuming your supplemental investigation reveals no repeated behavior).

I realize #3 is where I may be accused of being too soft on harassers, but let me outline the realistic outcomes for different scenarios.  I believe that in some cases we have to allow for the possibility of redemption and/or recognize the reality that we are rarely 100% sure that the harassment occurred.   Also, unless we want never-ending unemployment to be the outcome for anyone guilty of any act of sexual harassment, we should provide an avenue for relief.

Your consideration for consequences should include:

Substantiated Criminal Activity: or close to it.  If you substantiate behavior that is evidence of serious criminal activity (e.g. sexual assault) that would have resulted in immediate termination, ineligibility for rehire, and potential referral to the police, then the associate should be terminated regardless of the time that has passed.

Pattern of Behavior including Recent Incidents: If you can substantiate a pattern of behavior, even if the more recent incidents are less severe, the employee should be terminated.  Even though the level of harassment may have decreased over time, the employee is clearly someone you do not want to employ.

Old Corrected Behavior: This is the toughest situation to address fairly.  Assume you substantiate harassment that occurred 10 years ago based on multiple reports and the accused’s admission that he may have done some things wrong in the past.  But what if the accused realized his behavior was unacceptable and corrected it (even without formal discipline by the organization), and you are comfortable that the behavior did not continue?  (E.g. The substantiated behavior is that the harasser was an immature, boorish, jerk who changed his ways 10 years ago and did not repeat the behavior.)  I would encourage that in this type of situation, the appropriate action may be to acknowledge the past, make clear that anything close to repeating the behavior will result in termination, and move on without terminating the employee.  The reason is two-fold:

First, in the corporate context we are never 100% sure that the alleged behavior occurred.  With old allegations, it is much harder to determine the seriousness of the harassment and hence, the appropriate level of discipline.  (Yes – there are different levels of harassment – it is all inappropriate, but the consequence varies based upon the circumstances.)  In effect, we are allowing 10 years of clean behavior to give the employee the benefit of the doubt that perhaps the allegations were not serious enough to substantiate terminating employment.

Second, we should encourage the current wave of reporting.  My fear is that if every after-reported incident results in complete unemployment, some (especially men) will be reluctant to report behavior based on their belief that the guilty party may have repented and reformed.

Ultimately, we need to support the victims of harassment while providing confidence to the accused that they will be given a fair opportunity to defend themselves in internal reviews that will be the only investigation because the claims are often time-barred in civil or criminal court.