In this episode, restoration practitioner Jennifer Pernfuss talks about how to resolve harassment complaints (and conflict) using a systems inspired approach.
If you’ve not had a chance to listen to part 1, we'd highly recommend checking out Workplace conflict (part 1): The balcony view. In part 1, Jennifer and Katie discuss the importance of taking a systemic view in highly charged and complex workplace harassment cases. In this episode, Jennifer walks us through the typical process and procedure of a workplace harassment case; explains the different stakeholders in play; discusses the importance of creating psychological safety; and looks ahead to the type of reform she would like to see happen.
Jennifer Pernfuss is a non-practicing lawyer with a degree in Psychology and has maintained a consulting and coaching business for 27 years focusing exclusively on the prevention and elimination of workplace discrimination, harassment and the resolution of workplace conflict and employee complaints. Trained in systems theory, process-oriented psychology and relationship systems coaching combined with her understanding of the law Jennifer develops and implements restorative processes, helps repair strained working relationships and move parties to resolution.
For over 18 years, CRR Global has accompanied leaders, teams, and practitioners on their journey to build stronger relationships by focusing on the relationship itself, not only the individuals occupying it. This leads to a community of changemakers around the world. Supported by a global network of Faculty and Partners, we connect, inspire, and equip change agents to shift systems, one relationship at a time
We believe Relationship Matters, from humanity to nature, to the larger whole.
In this episode, restoration practitioner Jennifer Pernfuss talks about how to resolve harassment complaints (and conflict) using a systems inspired approach.
If you’ve not had a chance to listen to part 1, we'd highly recommend checking out Workplace conflict (part 1): The balcony view. In part 1, Jennifer and Katie discuss the importance of taking a systemic view in highly charged and complex workplace harassment cases. In this episode, Jennifer walks us through the typical process and procedure of a workplace harassment case; explains the different stakeholders in play; discusses the importance of creating psychological safety; and looks ahead to the type of reform she would like to see happen.
Jennifer Pernfuss is a non-practicing lawyer with a degree in Psychology and has maintained a consulting and coaching business for 27 years focusing exclusively on the prevention and elimination of workplace discrimination, harassment and the resolution of workplace conflict and employee complaints. Trained in systems theory, process-oriented psychology and relationship systems coaching combined with her understanding of the law Jennifer develops and implements restorative processes, helps repair strained working relationships and move parties to resolution.
For over 18 years, CRR Global has accompanied leaders, teams, and practitioners on their journey to build stronger relationships by focusing on the relationship itself, not only the individuals occupying it. This leads to a community of changemakers around the world. Supported by a global network of Faculty and Partners, we connect, inspire, and equip change agents to shift systems, one relationship at a time
We believe Relationship Matters, from humanity to nature, to the larger whole.
Key
KC – Katie Churchman
JP – Jennifer Pernfuss
[Intro 00:00 – 00:06]
KC – Hello and welcome back to the Relationship Matters podcast. We believe relationship matters, from humanity, to nature, to the larger whole. In this episode I’m delighted to be welcoming back Jennifer Pernfuss to continue our discussions around workplace conflict. If you’ve not had a change to listen to part one I’d highly recommend checking out Workplace Conflict – The Balcony View. In part one we discussed the importance of taking a systemic view in highly charged and complex workplace harassment cases. In this episode Jennifer walks us through the typical process and procedure of a workplace harassment case, explains the different stakeholders in play, discusses the importance of creating psychological safety and looks ahead to the types of reforms she would like to see happen. Jennifer is a non-practicing lawyer with a degree in psychology and has maintained a consulting and coaching business for 27 years, focusing exclusively on the prevention and elimination of workplace discrimination, harassment and the resolution of workplace conflict and employee complaints. So without further ado I bring you the brilliant Jennifer Pernfuss.
KC – Jennifer, it’s great to have you back on the show.
JP – Thank you Katie, it’s great to be here with you.
KC – I’m glad that we’re deep diving into this topic part two of workplace conflict because this is such a vast and complicated topic.
JP – Indeed it is.
KC – So, today we’re specifically looking at the impact of investigation and I’m wondering, we sort of touched on this last time, I’m wondering if you can walk us through the typical process and procedure of a workplace, say, sexual harassment case.
JP – Ok. So, when we do this let’s imagine that we’re actually occupying a workplace space. So kind of putting yourself in the shoes of a complainant because it’s a complaint driven process so when a complaint of sexual harassment comes forward it’s usually the complainant that’s bringing it forward. And you know, you can just pause there and imagine the courage it takes to bring these issues forward to a member of management or human resources or an Ombud’s office because we know that to bring complaints forward can be met with reprisal, retaliation, negativity. So, it’s a courageous act. Once the issue’s been brought forward to a member of management, assuming the member of management understands his or her legal obligations they have to respond to the complaint, they will then receive it and depending upon the policy and procedure will take it to human resources for example who will take full carriage of the complaint. And even as I’m describing it Katie it’s sounding so kind of legalistic and I’m reminding myself as I describe it that here’s this person who’s brought this forward, they’re living an experience that’s very uncomfortable, that is painful, that is challenging, and it’s not just happening at the workplace for that complainant. They’re bringing it home, it’s in their bodies, they’re taking it everywhere and it’s affecting all aspects of their life. Once human resources has the complaint, from a Canadian lens anyways, the complaint handler will look at the complaint, the allegations, and they’ll ask this question – if everything that that individual is saying, if it were true would it meet our test of sexual harassment? And if the answer is yes, that’s called establishing a prime effacing case of harassment, if the answer is yes that triggers the policy and procedure. And in Ontario, for example, there’s an obligation to conduct a formal investigation and in other jurisdictions across Canada and the United States. So, when it’s determined that they will be conducting a formal investigation it’s either done internally or they will hire an external investigator to conduct the investigation. Again, I invite people to pause and imagine that the respondent gets a letter to say this is to notify you there’s a meeting, just to let you know that we’ve received a complaint, you’ve been accused of improper behavior, we’ll be conducting a formal investigation. Just imagine receiving that information, it’s also terrifying for the respondent in many cases. Sometimes, depending upon the severity of the allegations, the respondent will go home with pay pending the outcome of the investigation. I’ve worked with hundreds of respondents who’ve been found responsible for inappropriate behavior in the workplace and I recall one man describing what it was like for him to be at home awaiting the outcome of the investigation. He said he had so much shame about it. He didn’t tell any of his family members. He got up in the morning, he got dressed as if he was going to work, he went to a coffee shop downtown until it was 5 o’clock and time to come home and he acted that out for several weeks whilst the investigation was underway. It was so difficult for him. So, once an investigator comes in and meets with the complainant, meets with the respondent, then we’ll meet with witnesses, gather the evidence, again thinking about the impact on that team or that area of the organization, it’s huge. Then the investigator will do an analysis of the evidence and arrive at findings of fact. Once those findings of fact are arrived at, that fact goes against a legal test and there’s a determination as to whether or not the legal test of sexual harassment has been met based on those facts. So, I’ll just pause there because I know that’s a whole lot of process that I’ve just described.
KC – It’s really useful to sort of see the zoom out that you take when you work with a case like this because I certainly hadn’t considered those parts of the system that are in play like the personal lives, for example, and how often those pieces just get completely neglected.
JP – They absolutely get neglected. And it’s, you know, it’s one of the areas of this work that I’m very passionate about because the policies and procedures are there to protect the dignity of the individual. And what can happen is the processes that we bring to bare the resolve of complaints actually can harm dignity. Can themselves cause disruption, anxiety and stress. And so it’s kind of counterproductive then, it’s the antithesis of the spirit of the legislation or the policy and procedure.
KC – When you mentioned about the respondent who pretended to still be working and put on that show for his family, my sort of immediate gut reaction was just well, the damage they’ve done, but it’s until proven guilty and that’s probably the challenge with that role is that just from having that sort of label, respondent even, which is less divisive than the accused, it’s a challenge.
JP – It’s a very big challenge. Because what happens is when people go home waiting for the outcome of the investigation, the optics are oh, they must have done something wrong. So whether there’s a positive finding of harassment or whether there is not evidence to substantiate it or it’s a false claim which is a rare occasion, the re-entry back for the respondent is very challenging. Because they’re entering a system different to the one that they left and they can feel the judgement of so many people around them, it’s really challenging.
KC – Yeah, so it makes me think about what we ended our last episode on around how we can look through the lens of relationship first and create the policies and procedures through that lens because it’s just not happening through what you’re saying there.
JP – That’s correct.
KC – Relationship’s been completely thrown to the side and forgotten.
JP – Yes because what’s dominating the decisions around that is protecting the company from legal liability. So the law is sort of the stakeholder, if you will, that is dictating the process. And to your point, Katie, it fails to take into consideration relationship. And I would suggest that we start the conversation from the place of relationship taking into account the law. It’s a different emphasis.
KC – Yeah. Because as a stakeholder, as you say, that I didn’t even think about. So how can we work with all these stakeholders who may or may not be in the actual physical room?
JP – Well they show up so, you know, when we think about the law as a stakeholder, there’s going to be whenever there’s an investigation issues around confidentiality. So the law will say it must be kept confidential, subject to any legal requirements to share information. So I understand, you know as a legally trained person, where that comes, the intention behind it, but from a relationship standpoint the impact is people are walking around with a lot of stress and anxiety and uncertainty and fear and the message is don’t talk to anyone about it. Go about your business, get the work done and continue, business as usual, although none of this is going on. Which is really an impossible ask. So, the law has something to say about confidentiality but the relationship has something to say about well, what do I do with what we’re in right now? How do I work through this chaos or tension?
KC – Yeah, it’s a challenging one because obviously the law limits what’s somewhat possible so within that framework that may be quite limiting how can you really bring relationship to the forefront?
JP – So when I come in as a restoration practitioner what I do is bring to light the different stakeholders and bring in the voices when I’m working with leaders on how to effectively address issues. And I always do this work with the end in mind. So if at the end of the day we want to land in a place I mentioned last time around psychological or relational safety, knowing that that’s where we wanna get too, how can that inform what we do now? So an example might be when you’re communicating with witnesses and telling them about the fact that they’re going to be engaging in an investigation process, perhaps you have a face-to-face meeting. You take some time to explain the process, you answer questions, you put them at ease. That exercise which takes time is done recognizing the importance of the lived experience of these and is protecting the relationship the witness has with its’s employer or the witness has with the other stakeholders. So it’s more time up front but it pays huge dividends later on.
KC – Mmm. Makes me think of damage control, the idea of thinking ahead of time about the long term ripple effects which in this case is going to be psychological damage among other things.
JP – Absolutely and because the stakes always feel so high and there’s these legal issues looming about, people sometimes feel paralyzed, they don’t know what to do so they do nothing. And one of the major themes throughout these processes is people feel that they’re not kept apprised of what’s happening, there’s lack of communication and when there is uncertainty that obviously creates more anxiety. So part of the damage control is having a really strong communications plan for example in place. Recognizing that that’s going to be the lived experience of people in a process that, remember, is naturally adversarial, it’s going to attribute blame, at the end of the day there’s going to be the optics of a winner and a loser and yet again when we look at it through the lens of the relationship there’s your truth and there’s my truth, there’s not that truth.
KC – Mmm. It’s like they’re playing a finite game but it’s not. It’s not something with really a clear cut outcome or a finish.
JP – Not at all, and often the finish is more chaos. I’ve said so many times, there’s the events that lead up to the complaint that need to be addressed, resolved, and then there’s the process used to address the complaint that often can be more harmful than the events leading up. Which is a frustration, it’s a systemic issue and we really must do better in this regard. There’s so much carnage.
KC – Yeah, and it seems like what you said there about defensiveness, blame, it seems like the process itself engages some of these toxic behaviors or, as we call them, the four horsemen of the apocalypse to use the words of John Gottman.
JP – Absolutely, so if we’re confronted with allegations the natural response is blame, the natural response is to want to defend one’s self. When we get into the realm of sexual harassment and the 2% truth piece, that gets a little more controversial. Sometimes something is just plain wrong and unacceptable full stop and there isn’t a kind of 2% truth of it and because the investigation process is set up in an adversarial environment it lends itself to those toxic responses you’ve just described.
KC – Yeah so if it’s set up in that way it must be quite hard for people to shift into different patterns of communication within that framework.
JP – Yes in the way that it’s set up because that seems to be the only available avenue to seek relief or resolution. By the time somebody musters up the courage to bring it forward there’s so much strife already in the relationship where damage has been done. So, my aspiration or my hope for organizations is to pause. Take a deep breath and be quite intentional about making agreements and creating enough safety that if you do something that doesn’t land well for me, we know that we’ve got already an established agreement that I can bring it up to you and you know, use coin, one of the tools in the ORSC program to let you know how it’s landed and I’m doing it because I care so much about the relationship. It’s in service of the relationship. So imagine cultivating a culture where that’s just the norm and so we can bring it up early in our tension and work through it before things start to stack up and then by the time I’m in the land of harassment allegations we’re so far down the path of disconnection it’s harder to repair.
KC – So interesting because I didn’t even think about the fact that these toxic communication patterns and behaviors, they’re kind of being in some ways forced upon the people in the process. Even if they’re not necessarily a defensive person they’re pushed into that space because of the way the process and the procedure is set up. And so as a coach going into this kind of toxicity, how can you sort of help them see that there’s another way beyond just calling out the behaviors themselves?
JP – Yeah, such a powerful and important question. So again it comes back to what’s normalized in a culture, making agreements for me to be able to bring it to your attention, understanding that if it doesn’t work between us or I don’t feel able to bring it to your attention I can go to a leader or a member of management to assist and I’m not doing that as a tattle tale or a way to get you into trouble, I’m going it in service of our relationship. So part of it is creating different norms and different value systems around that. If it’s post investigation or even during an investigation, coaches can play a really important role in supporting complainants or supporting respondents, they can do some work around who that complainant or respondent wants to be in the face of this very challenging situation. There could be some allyship in helping the participants of the investigation request information and receive support so there’s more certainty and less fear involved in going through it.
KC – Yeah, it’s challenging isn’t it because it’s just not setting itself up for success right now, I see now that the whole process and procedure around this is setting itself up to be very toxic and damaging.
JP – Yes and then let’s add another complicating factor or more complexity. There are cases where there’s very serious allegations of sexual harassment or sexual violence and an investigation is the only way to go. You need those findings of fact and you need the outcome of the investigation to be able to justify a termination. So in some instances the process is required, and that all being said, there’s still lots of opportunity to cultivate an environment that encourages people to bring issues forward so that they can be worked through the relationship or worked out of the relationship, that is in everybody’s best interest.
KC – So it seems like a one size fits all approach right now in regards to the way this is handled, and as you say there might be some cases where this is exactly how this needs to be done but that’s being used across the board?
JP – Absolutely. That’s true. And managers, because they haven’t received training, specific training on how to effectively manage complaints because there’s a process, there’s a bit of an art to it as well because you want to be receiving these complaints in such a way to encourage low level resolution. It’s partly why we developed an online training program for how to do that, it’s a real skill set. And what happens is, when these issues do come forward it can feel a bit like hot potato and nobody wants to deal with it because it’s hard, it’s messy. And so people turn to process, it feels easier. They can hire an investigator or step into a more formalized process that is not focused on relationship so does feel less daunting to go through.
KC – So I’m wondering, where abouts in the process do you typically get called in?
JP – I wish I was called in before a complaint was lodged and that’s not what usually happens. It’s usually post investigation, it’s because there’s a big mess, there’s lots of disconnection, there’s lots of fear and distrust that’s living in the system and organizations are saying help, now what? And that’s challenging. Because by that time people are very injured, they’re very entrenched in their positions. There’s been an outcome and an investigation that is, more times than not, dissatisfying to many of the stakeholders. So, not only do you have strain in a working relationship, as I mentioned before, there’s also this experience of this psychological violation with the employer because they haven’t felt that they’ve handled it properly. So it’s a big undertaking to try and piece that back together.
KC – You can really see why somebody wouldn’t necessarily file a complaint because it may lead, right now, to what in Buddhism is called the second arrow, you know it’s adding more suffering on suffering.
JP – Yes. That’s a very important point. And so what happens is the person stays in these relationships or the situation that is harmful and we know the impact of that is decreasing employee morale and team morale, decreasing team activity, increased absenteeism. More stress leaves, people become unwell, lack of productivity, the costs are really high – there’s the human cost and then there’s the productivity cost is significant. So whilst these interventions earlier on feel onerous in the moment, they’re nothing compared to the impact when it’s left to take on a life of it’s own.
KC – So I’m wondering, if a coach comes across what they think might be some kind of workplace conflict to this degree, harassment, sexual harassment, what would you suggest they do. If they’re seeing something like that in a team engagement?
JP – Yeah so they’re… if it’s between two people then taking that, looking at the relationship and seeing what it needs. If it was asked what do you need right now, what would that relationship say? And it may be I need a systems coach to come in and help us move through this, to bring in a systems coach to work with the team, to uncover, you know, what’s happening, what’s wanting to emerge. Recognizing that the conflict is a signal that something wants to and needs to change. So there’s this level of intervention that’s really quite easily made available, whether it be via the relationship or the team as a system.
KC – It just seems like it’s so obvious and avoidable if we bring people in sooner and I think perhaps these systems do need the outside perspective that a coach brings. But maybe it’s a budget issue, a resource issue up front, but as you say at the end the ramifications there are just so much larger than actually what they could have saved themselves if they’d paid for a coach upfront.
JP – Yes. Investigations run from 10 to 20 to 100 thousand dollars or more, depending on the complexity. What happens is all that money is spent on the investigation and when we come in as restoration practitioners there feeling like they don’t have the resources to do what I would suggest is even more of the heavy lifting. More the meaningful work. So that is the challenge. If you can get in before there’s a complaint the cost associated with that is so minimal. Cost, both the financial cost as well as the human cost.
KC – So in terms of reforming the investigative process that we’ve been talking about today, is that really what you love, is that actually we don’t even get to the point of having an investigation because actually we’ve dealt with the relationships up front before it’s got to that level.
JP – Absolutely. And even when people start to point to a complaint, that’s the flag, hold it. Because they don’t know how else to characterize it or how else to access support. If we can bring in systems coaching early on and work it through, there’s no reason to name it harassment or characterize it that way because they’re getting relief. Because at the end of the day, when people make a complaint it’s simply a request that they want to be treated with more respect, they want their boundaries honored, you know whatever it is, behind every complaint is a request. So the question I often ask is what is this person asking for? And let’s just go there. Let’s see if we can achieve those desired outcomes early.
KC – Yeah. So, I’m wondering, for coaches and leaders what are the early warning signs and signals that we should be… and I don’t want to necessarily call them warning signs, signals that we’re missing right now, at the moment.
JP – When I hear employees interpreting behavior and drawing negative inference from conduct I start to get really curios. What’s going on in that relationship that has you start to form this narrative that something’s going awry or we’re getting disconnected? Something’s happening here and it happens early on, where there is mistrust or where there is a narrative that I’m being mistreated, everything after that, typically a negative inference is drawn. And we’re actually built to do that. We’re built to be always looking, scanning the environment to see if there’s anything dangerous.
KC – Yeah, and that’s the danger of the single story as well which we’re very good at making up stories about things but also very good at quickly categorizing things as a certain type of person or a certain type of story.
JP – Yes.
KC – And if you catch it soon, as you said, if you catch it early well maybe you can change actually what that has to look like.
JP – Yes. And I also want to weave in another piece that, it’s quite current right now, this idea of being a trauma informed manager, complaint handler. There is trauma that lives in every system to a greater or lesser degree because as humans we carry trauma inside of ourselves. And that’s something to also be paying attention too in all of this work, think it’s worth just mentioning that.
KC – Mm. and I guess time spirits really come into play there because they say that a lot of the global time spirits, they’re in our bodies for generations, I think I read something that it was 10 generations of trauma that we hold in our bodies.
JP – Wow. So, whenever there’s an altercation or there’s tension or disconnection in a relationship that’s present.
KC – Mm. It’s another stakeholder.
JP – I love that, Katie, it’s another stakeholder. Yep.
KC – So, what’s your high dream for this work? I know we’ve talked a lot about what’s not working and what we’d love to see change but what’s your hope for the sort of the next iteration of how these investigations and this work looks like?
JP – It would be that there’s a greater understanding of the impact of our current processes, that we have the energy and the drive to get at the granular level in terms of understanding what is happening for the very stakeholders when there’s conflict. One of my high dreams is a department filled with systems coaches at the ready to come in and support relationships when something shows up, is getting in the way of them feeling safe, feeling connected, when there’s lots of trust. Imagine a world where that was available.
KC – It would save HR so much time.
JP – Oh yes. And people would be able to thrive and make their contribution and enjoy their work which is where we spend most of our time.
KC – Yeah. It’s so interesting because I so often mention this work, I love it, I live it, I breathe it, yet it does still feel like some people are very reluctant to step into it because it does create accountability. I think that’s also sometimes part of the issue, it’s that people don’t want to look in the mirror because then they can’t blame something else.
JP – Yes. They have to actually feel, they have to feel. And we’re a culture that spends a whole lot of energy trying to not feel what we feel. Yeah.
[Outro begins 29:12]
KC – Well, thank you so much Jennifer for such a useful and informative discussion around such an important topic.
JP – You’re very welcome Katie, thank you very much.
KC – Take care.
JP – You too.
KC – A huge thanks to Jennifer for that incredibly informative discussion around workplace harassment cases and the impact of investigation. My key takeaways are as follows. Many workplace investigative processes fail to take into consideration relationship. If we can start the conversation from a place of relationship whilst still considering the law we can limit the damage caused by the process and procedures themselves. Whilst the law has something to say about many parts of the process, for example confidentiality, the relationship will have something to say too. If we bring relationship to the forefront of the discussion we can work more skillfully with complex conflict. The process is naturally adversarial, it’s going to attribute blame. At the end of the day there’s going to be the optics of a winner and a loser and yet when we look through the lens of relationship multiple truths and experiences can co-exist. Conflict is a signal of something wants or needs to change. When people start to point to a complaint there’s the flag, we need to hold it. Behind every complaint is a request, when people make a complaint it’s a request. That they want to be treated with more respect or they want their boundaries honored. If we can ask ourselves early what is this person asking for we can work towards achieving those desired outcomes. To find out more about Jennifer’s work check out respectatwork.ca and for more information about relationships systems coaching do check out CRRGlobal.com. For over 18 years, CRR Global has accompanied leaders, teams, and practitioners on their journey to build stronger relationships by focusing on the relationship itself, not only the individuals occupying it. This leads to a community of changemakers around the world. Supported by a global network of Faculty and Partners, we connect, inspire, and equip change agents to shift systems, one relationship at a time. We believe Relationship Matters, from humanity to nature, to the larger whole.
[Outro 31:32 – end]