This tenth post about people we meet in workplace investigations represents the employer’s most difficult challenge – the hardest employee complaint to prove (or disprove) and the hardest setting in which to take steps to avoid and/or detect future problems. Here we meet the malicious manipulator as harasser.

I submit that the malicious manipulator is a minority of workplace harassers. Some are not manipulators – they are clueless or insensitive but manageable after appropriate disciplinary measures. And most of the manipulators are not perfect – they leave electronic smoking guns, or are unabashed in their behaviors and attitudes so that third party corroboration is easily obtained. (The latter do not even warrant a Witness Files post – they are just busted.) Because of the significant “degree of difficulty” of this less common situation, however, the malicious manipulator is an important topic.

The Investigation Subject

Let me introduce you to Mike. Our company manufactures machine presses used by auto parts manufacturers. The machines are complicated, so we employ highly skilled field engineers who will go to our customer’s plant and address any mechanical issues. They are important to the success of our business and they are well compensated. A field engineer is assigned to a specific geographic territory. Mike was hired 18 months ago to be our field engineer in a relatively small but densely populated (with people and auto parts manufacturers) region.

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Our company has one other employee in the region – Mike’s assistant Vicky. Vicky is part administrative assistant and part customer service rep. Her job requires good interpersonal and organizational skills and limited secretarial skills; it does not require a degree. Sometimes Vicky works in the small field office for the region, and sometimes she will accompany Mike on customer site visits because one of her responsibilities is to be a customer contact. Vicky is a three-year employee, and has been a marginal performer, and a few months ago received a poor evaluation from her primary manager at headquarters for not being sufficiently effective to some key customers.

The Victim of Harassment

Mike is sexually harassing Vicky, and he is “smart” about it. He does not text or e-mail her, and in the presence of customers or company employees who may be at the field office from time to time, Mike’s conduct is completely professional and appropriate. When it is just the two of them in the office or a car, however, Mike makes grossly inappropriate and suggestive comments, and and occasionally touches Vicky’s arms or legs suggestively.

Needless to say, Vicky is extremely uncomfortable. But she is also scared. She needs her job, and she knows Mike will deny any harassment, is well-liked by customers, and that she cannot disprove what she knows will be his denials.

Finally, however, Vicky cannot take it anymore and contacts HR to complain about the sexual harassment. The company does what it is supposed to do, interviewing Vicky and Mike and others who might have observed the two of them and has no evidence of Mike’s inappropriate conduct. Mike denies, and nobody else has seen anything appropriate.

Weighing the Allegations

At this point, you cannot conclude that Mike has engaged in sexual harassment. You realize that Vicky has “motive” to fabricate or exaggerate allegations. But you also recognize that this is a worst case scenario as far as the company being able to manage and monitor behavior in the work environment.

Mike’s and Vicky’s jobs do not lend themselves to some measures you might take in “toss up” situations – you can’t rearrange the physical layout of their work or take other relatively simple steps so that Mike’s behavior can be more observed, and you can’t juggle assignments. Mike in effect is an abuser, and he has found a vulnerable victim. Of course, if Vicky can ever prove her case to a jury, the company is in deep water if it appears not to have addressed this sexual harassment.

Handling the Situation

I know of no tougher harassment situation for an employer to manage. A few thoughts:

• You probably do not have long term employees like Mike. At least you shouldn’t!  I am not a psychologist, but he probably has a diagnosable personality disorder, and it only takes one person besides Vicky to experience that in some context before you quickly determine that there is a pattern with Mike, and he will be terminated, or resign one step ahead of the sheriff.

• As much as anything, Mike underscores the importance of meaningful background checks. Mike will be a great interview, and he will very logically explain his series of relatively short-term jobs as career progression. Call me old fashioned in this era of more frequent job movement, but less job stability is still, if not a red flag, a demand to obtain meaningful references. Mike will have engaged in this or other antisocial behavior elsewhere – do everything you can to find it before you hire him.

• It would be easy to conclude that Vicky’s complaint is a smokescreen to protect her shaky job. And it could be. But when assessing credibility, you must factor in the unique circumstances of a somewhat isolated, remote working situation. On the one hand, you cannot prove Vicky’s allegations of sexual harassment. On the other hand, you must factor in that the work environment may, as in this scenario, be the cause of that lack of proof.

• The situation may call for more sophisticated and/or clandestine investigative tools. Of course talk to legal counsel about what those options may be in Mike’s and Vicky’s jurisdiction, but it may be possible to give Vicky the tools to capture the smoking gun that Mike has so carefully avoided leaving behind. Obtaining the smoking gun proves the allegations; not obtaining it despite the ability to do so may contribute to a conclusion that the allegations are not true.

• While there is some cost to it, you may invest more in having another company employee become involved in this relationship. Mike will not manifest the sexual harassment in front of the employee, but Mike’s game is premised on people not knowing him well, and the more another employee can spend time with Mike and Vicky, the more you might be able to figure out this situation.

The “good news” in this tricky situation is that Mike-like situations will resolve themselves in the medium term. The trick for the company is to make sure that you do not completely buy into Mike’s game in the meantime so that his legacy at your company is liability to the company.