The Witness Files: The Clueless, Yet Compliant, Accused

People we meet in workplace investigations

Posted by Bill Nolan in Code of Conduct, Harassment, Human Resources on May 14th, 2013

Workplace investigations are like snowflakes – no two are exactly alike. Over time, however, it seems there are types of witnesses we meet again and again. Even across different types of investigations, we see complainants, alleged wrongdoers, and third party witnesses exhibiting very similar behaviors.

As we get to know these types of witnesses, we find out what strategies tend to work to best interact with these witness to meet our overall objectives:

  • gathering information
  • responding appropriately to our findings
  • optimizing future workplace conduct

With this post I begin a series of reflections and suggestions about witnesses who may sound very familiar.

Clueless, Compliant Carl

Our first featured witness is the clueless yet compliant accused employee. For reference call him Carl. Carl, a middle aged middle manager, has been accused of repeated sexually inappropriate comments in the presence of adult but much younger women in the workplace. Unlike many employees accused of such comments, when confronted Carl owns up to most of the alleged comments. No blanket denial, no spin, no questioning the accuser(s), no trying to defend the context.

Carl is old enough and intelligent enough to know better, but he doesn’t. He is not a pervert. In the company of these younger women, he is perhaps a bit transported to his younger days, and engages in topics of discussion in which somebody in a position of authority should not be engaging with these young women. Carl has not propositioned these young women, nor do I think that he would. He is simply clueless.

The Real Carl

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I have a composite Carl in mind. That real-life composite Carl got a pretty good kick in the pants from his employer, delaying a possible promotion. He also had to undergo training, including some from yours truly. Carl “got it,” corrected his behavior, got back on track, and by all accounts has not repeated the behavior. When he sees me, he actually thanks me for being part of the process that put him on the straight and narrow (not to mention probably preventing him getting sued had he continued his behavior).

It does not always work this way, of course. But you will meet Carls in workplace investigations and, on balance, when you do it will usually make your job and the company’s job easier. (Carl does not need to be a man, of course. My composite Carl is a man, and the fact is that most Carls will be men, but there could be a harassing woman, or somebody accused of things other than sexually inappropriate comments, who fits much of the description of Carl.)

An Easy Case

You will have many fewer credibility issues to resolve. And because Carl is owning much of the behavior alleged against him, any select denials will often be more credible than those of an accused who denies most or all of the allegations against him.

Carl also will make it easier to accomplish the forward-looking goals of our investigation, i.e. a plan to avoid future inappropriate conduct. If Carl is committed to correcting his conduct now that he has been jarred out of his clueless state and back to reality, this has all the makings of a successful investigation. In that sense, Carl is an easy case.

Dangers of Leniency

The challenge with investigating Carl is to not let his compliant nature influence the employer to be too lenient on Carl. For starters, we do not know when we are interviewing Carl that he is the sincerely remorseful and compliant wrongdoer that he claims to be.

We have all seen people who, because they are busted, fall on their swords thinking that will minimize the measures taken against them. A year later, they may be back on our desk with a new set of complaints. If that is the case, the potential liability to the employer has increased exponentially. Now we don’t just have a harassing supervisor, but we have a harassing supervisor of whom we are on prior notice.

Even if the Carl before us is in fact compliant and will mend his ways such that he is unlikely to present further risk of liability to the employer, how the employer handles Carl may affect other future legal matters not involving Carl.

If the employer responds to Carl in a manner that does not seem at all proportionate to the alleged behavior, the employer’s soft response may be used against it in unrelated future legal matters involving the complainant against Carl, or in matters involving neither Carl nor the complainant. (Yes your lawyer can and should object to the introduction of those matters in other court proceedings. That could be a post unto itself but suffice it here to say that maneuver will sometimes work, sometimes not.)

Appropriate Consequences

Certainly juries should understand that Carl’s misconduct would be dealt with somewhat less severely than that of a wrongdoer who was not entirely forthcoming in his investigation interview, but it will likely be important to a jury that Carl not be viewed as having “gotten off” without some consequences for his conduct. Even if more clueless than contemplated, Carl’s workplace conduct was inappropriate.

Please comment about Carls you have investigated and other thoughts you have about them.

Bill Nolan
Bill Nolan

Managing Partner, Ohio office of Barnes & Thornburg LLP

Bill Nolan opened Barnes & Thornburg's Ohio office in April 2009, seeking to bring a unique energy, geographic platform, and business model to the Ohio legal market. He strives to bring attentiveness and clarity to employment, contract, and other disputes, and on helping clients build teams, policies and processes to minimize the frequency and severity of disputes.

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