innocent but guilty at work, now what?
November 12, 2021 11:49 AM   Subscribe

I would like to ask for some help with understanding my options at work, following a breakdown in a relationship with a colleague. Details inside.

For background, you are at a large educational organisation. For several years you had a good working relationship with a colleague (X) with whom you run a student-facing project together. Then about a year ago, the relationship breaks down to such an extent that X claims that they are feeling unsafe to work with you (even though due to Covid all work is remote). You are at a loss as to the reasons for this. Sometime before the breakdown X sent you an image that can be read as explicit, vulgar and racist, very clearly directed at you personally and at your ethnicity. When you find this message you fill a complaint with human resources. Some weeks later X also fills a complaint against you. Two investigations are launched. The process drags on, in the meantime, you have to act as if nothing happened. You can sense that behind the scenes X is working hard to undermine you try to influence the students to this end. The process is still dragging on. Finally, after about a year, the results are in. HR says very little, basically, they concluded X has a case to answer, but they don't tell you what was decided quoting data protection as an excuse not to say anything, only that X will remain in their role. HR also reveal that you don't have a case to answer. The powers that be write to you to say that even though you don't have a case to answer, you are not in the clear and meetings will be held to discuss your transgressions. HR recommended course of action is a mediation between you and X.
You know that mediation is not going to work because X will not forgive you for making this complaint. X is vindictive, angry and untrustworthy. It will not be possible for you to trust X again.
So, questions.
First, you need another job, but these are like hen's teeth, so...
Tribunal - can you take your institution to a tribunal for the way they have dealt with your complaint about the racist image?
How to continue working in what became an intolerably toxic environment? You tried to speak with various managers, no one is particularly interested and no one wants to touch it.
You were acquitted and X was found guilty, but you are still being treated as the problem. you are getting the sense that there might be something hostile towards you in the culture of this place.
If you have any questions, here is a throwaway email:
Thank you
posted by anonymous to Work & Money (17 answers total) 3 users marked this as a favorite
I would talk to a lawyer. Employment lawyers usually give the the initial brief consultation at no cost.

This sounds like a horrible situation. The company appears to be valuing X's employment over yours, and wants to play down the racial and sexual harassment you've been receiving from them. I wouldn't say anything or sign anything with your employer before talking to a lawyer.
posted by scruss at 12:09 PM on November 12 [14 favorites]

Are you in the US? If so, you need to talk to a lawyer. If you have documented proof of someone targeting you with racial/ethnic harassment and HR doing nothing, you might have a real case.
posted by pazazygeek at 12:18 PM on November 12 [6 favorites]

+1 lawyer up, not only did X send you a harassing, racist image, they also filed a retaliatory HR complaint against you. Do not participate in mediation until you've talked to a couple employment lawyers. Also, think about what you want. Generous severance? Being transferred to a new program?

Does your institution have a code of conduct or similar for employees? Do you have any allies you can talk to about this / what has happened in previous cases?
posted by momus_window at 12:23 PM on November 12 [12 favorites]

It absolutely sucks that X is doing this and that your organization is not protecting you like they should. Unfortunately, this isn't a "start looking for another job" situation. This is a quit immediately situation. If you continue to fight back against X and against the "powers that be" I have no doubt that trashing your professional reputation will be one of their tactics. Certainly you should consult with a lawyer and attempt to prosecute everyone involved to the fullest extent, but get out first (be sure to copy any relevant files/messages to a flash drive or other external source).
posted by Rock Steady at 12:24 PM on November 12 [1 favorite]

I have been in a not-dissimilar situation in a University. Lawyer. Internal politics, gender, power, etc., will all come in to play. HR is never your ally.
posted by theora55 at 1:12 PM on November 12 [3 favorites]

I think this is a constructive dismissal situation but that something else is at work that must be rooted out. I can't suggest you quit but instead get justice with a lawyer who specialises in human resource development. HR is almost always asleep at the switch because they are expected to know everything but only rarely is this the case and they almost never ask for help once they pass probation.

It's possible that WFH was so psychologically damaging to X in a personal, cutting way they lead themselves to believe they had figured out how to eliminate you. Don't let this woman succeed. She broke the law. Don't let her break it. She's going to continue to use it. By going forward with a formal legal complaint but remaining in your post, the publicity will out. Perhaps the student group will take the initiative to remove her as an advisor themselves and help you find a new colleague who is encouraged and motivated to succeed. Is there any reason they can't do that now?
posted by parmanparman at 1:44 PM on November 12

I assume you would have mentioned it if you're in a unionized environment but just in case, if you are, you should talk to your union rep.

Definitely if not, talking to a lawyer is really important before entering any "mediation" process.

Also, I would gently like to correct your phrasing. This situation is not "following a breakdown in a relationship with a colleague." That would be like "we were on a committee together and disagreed about the best course of action."

This is about "my colleague sent me an image that was explicit, vulgar and racist, very clearly directed at me personally and at my ethnicity, and then when they realized I had filed a complaint, filed a complaint as well, probably to cover their tracks."
posted by warriorqueen at 1:44 PM on November 12 [15 favorites]

(OP consistently used "they" for X, we don't know their gender and assuming they're a woman plays into nasty tropes.)
posted by momus_window at 3:10 PM on November 12 [7 favorites]

I think you are in the UK, right? Wherever you are, you need to consult with a lawyer. Your options/recourse depend on what legal protections are available to you, and that’s determined by where you work.

Broadly though. It sounds like what happened here is a colleague sent you a harassing message which you reported to HR. HR launched an investigation. Your colleague then made a complaint about you, presumably as retaliation for you reporting them. HR is being kind of cagey about the outcome, but it sounds like your colleague was found to have harassed you, whereas you were found not to have harassed your colleague. HR is now recommending mediation, which you’re reluctant to participate in because you can’t assume good faith with your colleague. (Which is fair enough given that they made a retaliatory report about you.) And it sounds like as all this played out, you have ended up getting blamed for the whole mess, even though officially you’ve been cleared of wrongdoing. And now the atmosphere feels hostile.

I have a lot of experience handling harassment claims. And I can tell you, what’s happening to you is extremely common. Specifically, it is very common for the person who reports harassment to end up getting blamed. People instinctively empathize with the harasser, especially when the harasser is their same race or gender. They see the person who made the complaint as exaggerating or misunderstanding. They see that person as a troublemaker or a drama queen. And they close ranks against them and start to freeze them out.

So that is all extremely normal. (Awful, but normal.) So if by chance you are blaming yourself for any of this or thinking maybe you mishandled it, you can stop worrying. You didn’t do anything wrong.

Unfortunately it’s hard to recover from. I would advise you to talk with a lawyer and get them to help you figure out next steps. If you get a lawyer to write a threatening letter claiming constructive dismissal, you may be able to shake some severance out of your employer in exchange for you quitting. Usually you can get severance in the ballpark of maybe one month of salary for every year you worked for that organisation, and sometimes more than that.

What you should do right now is write out a chronological order of events. What happened, in order. With dates etc. Be sure to include not just the original harassment/racism event, but any other experiences of harassment or racism you’ve had at this workplace. Also be sure to write down anything that could potentially be interpreted as retaliation. Like, whatever examples you have of retaliation (people denying you opportunities, freezing you out, not cooperating with you, being cold with you): write them down. That will help your lawyer assess your situation.

Do not quit before you talk with a lawyer. If you end up deciding to quit, they will help you do it in a way that gets you some cash.

Good luck and I am so sorry about this. It’s unjust and it sucks. You haven’t done anything wrong and it sucks that you will be the person to pay the price here.
posted by Susan PG at 3:35 PM on November 12 [12 favorites]

Oh and one last thing. Warriorqueen is right in reframing this. It’s not a breakdown in a relationship. You got harassed. That’s what happened here.

Your employer is framing it as a relationship breakdown because that way they can avoid taking responsibility for fixing the real problem. This is also part of framing the whole thing as ‘drama.’ And it’s why your employer is pushing mediation. It’s a way of sidestepping what really happened.
posted by Susan PG at 3:41 PM on November 12 [8 favorites]

If this is a government institution, at least in many parts of the US (I'm guessing OP is in the UK or Australia?), they may be extremely limited in what they can do. I'm very aware of people whose behavior in state higher ed institutions went far beyond a single ethnic attack/retaliatory report and whose direct management strongly wanted to get rid of them but whose hands were tied by policy.

But in general, I'd agree that you should talk to an employment specific lawyer in your locality and not say or sign anything at work regarding their "offer" until you do so.
posted by Candleman at 3:43 PM on November 12

While I wouldn't disagree with the above, I am curious what supposed transgressions HR have down against your name. If you get advice before they start listing them out to you, you will know how to respond (likely with silence, I would imagine, until you've had the time to consider the ramifications of any response - but that's where professional advice will help).

HR have their own interests at heart, and it's strangely coincidental how you're suddenly bad at your job at precisely the time that they need you to act in a certain way.
posted by How much is that froggie in the window at 4:28 PM on November 12 [4 favorites]

Ditto the solicitor. Please pay the fee and at least talk with one on whether you need one such to protect your interests.

HR's function is not to protect individual employees, but the employer. Any benefits to the employees is incidental (or in some cases, accidental). Depending on the benefit/harm ratio it may be easier for them to sweep everything under the rug, or ask you to "take one for the team" as you're not high enough on the totem pole, so to speak.

By reframing the workplace harassment as "personal issues" for you two to resolve they can avoid taking any blame on the institution and workplace.
posted by kschang at 4:32 PM on November 12 [1 favorite]

In my case, I threw every available resource into finding a new job in any industry and pivoted to a role in the private sector making 50% more.

I had a lot of complex feelings about leaving. I felt like "the bad guy won" because I was the one to leave. I was really frightened about giving up the job security I had in academia. I felt like a failure that I wasn't moving to a similar position at another university. I was so frustrated I couldn't tell my story in "the right way" that would inspire the administration to take action. I felt guilty that, by not following through*, I was failing students and other victims who may not have been in such a secure place to speak up. I was angry and disappointed I never got an answer to, "Why is he doing this?" I was deeply, severely depressed and burnt out from the awful situation at work.

It turned out that working in academia offered a unique opportunity to get professional experience with many high demand skills, though. Depending on your role, for you that might be project management, hiring/supervising, public speaking, technical writing, data analysis, instructional design, social media management or any number of skills related to your specific discipline. I hope, for your sake, you'll also find a workplace that values your unique skills even if it means expanding your search.

(*It was already clear the university was not going to take action and my next step was finding an employment lawyer willing to take a massive and popular local institution.)
posted by Gable Oak at 5:58 PM on November 12 [3 favorites]

Mod note: From the OP:
I am so grateful for your responses to my question. I wish I could thank each one of you individually. This is a quick follow up.

Some additional information that was omitted in the previous post.
You are in the UK. The union rep was involved from the start. You asked the rep repeatedly to meet with the union solicitor, but the rep’s reply is that it is not time yet, that the process has to run its course first. And yes, X is a woman. X accused you of making her feel unsafe, coercion, micro-aggression, bullying after you complained about X sending you sexually explicit, racist image directed at you personally. External investigator was brought in to look at both complains. The investigator found no evidence to support X complain. However the manager decided that the investigation is advisory only and the final decision is with him. The outcome of the investigation into your complain was never shared with you ‘due to data protection’. All you know is that X has a case to answer, but remains in her role. The manager is now saying that while you don’t have a case to answer you are not in the clear.

You understand that you probably need to leave, but you have a mortgage. A compensation at the value of several months of salary is not going to help much.
And now for the question: can you recommend an employment or HR solicitor in the UK? One that understands racism / antisemitism would be a plus.
Thank you friends.
posted by taz (staff) at 2:56 AM on November 13

I'll try and offer what advice I can as a UK person who's had his own 'mediation' issue with a bullying problem at an education workplace.

The union rep doesn't sound like they've been a lot of help, as they should be guiding you through the process and your options. That they allowed HR to sit on it for a year isn't good either. I think the first step is to see if you can get your case passed to a union full-time official; ideally, you need to be working with an full-time equality specialist, not a general rep. *However*, this may be complicated if X is also represented by the same union. Unions can be very helpful with collective bargaining over terms & conditions; they can also be less so when it comes to individual cases of harassment and bullying (I know this from personal experience in education alas); goverment action has substantially weakened individual protections, and how much help the union can be.

HR are not on your side; they are there to protect the organisation, not individual staff. If tossing one staff member under a bus is considered necessary (or just easier) to make a problem go away, then they'll do that without hesitation in my experience.

So first off IMO, don't agree to their planned mediation now - you've done nothing wrong, and their own process has shown that, while the mediation they have in mind is likely setting you up as an equal party to the problem which is bullshit. Tell them you are seeking advice from your union. Try and get your case handed over to a full-time union case officer rather than your local rep, and look to get advice from them in the first instance as they will have the best shot of resolving this 'informally' while you still keep your job.

If that does not prove fruitful, or you feel the need for a second opinion, then see if there's a Law Centre in your area; they specialise in discrimination and employment law amongst other areas of local justice. You can also seek independent legal advice; this can get pricy quickly, but you may have some legal assistance cover via your home or car insurance, which can cover *any* legal matter.

It would be worth a phone call to your local citizens advice. They won't be able to help you directly, but they will be able to refer you to other organisations or local solicitors that can.

For a legal case of discrimination in employment, you need to show that the purpose or effect of 'X's conduct was that it violated your dignity or created an environment that (any of):
humiliates you
offends you
intimidates you
is hostile
is degrading

And was down to a protected characteristic, such as your race or religion. It sounds like X's conduct clearly meets that level, and the employer is vicariously responsible for that. So this manager is likely looking to make this an interpersonal 50/50 problem, rather than have them on the hook for X's discrimination and harassment. (more on this here)

You may end up going to ACAS, an independent organisation that is there to mediate between employers and employees prior to legal action (i.e. an employment tribunal), but you're probably better off getting by getting referred through your union, law centre, solicitor, or other organisation that can help you navigate the paperwork, especially if you get referred to their discrimination arm EASS.

You also need to decide what you're looking for primarily as an outcome. Keep your job, and not have to work with X any more? See X disciplined? Claim for constructive dismissal? (i.e. leave your job, but gain compensation because your position was made untenable). Find a different job with a good reference?

Depending upon how difficult X wants to be, their seniority, and how the organisation values you vs X will all make a difference, and mean that persuing one outcome closes off others. Sad to say, moving on quietly with a redundacy package and your professional reputation intact might be the best outcome available; getting actual justice while staying in the same job may come at a significant cost for your career with that employer, and cost substantial time and even money, especially if it ends up going to an employment tribunal. Or it may not; chances are this is not X's first rodeo, and escalating may mean it's easier for them to get rid of X than risk defending an employment tribunal (those genuinely can go either way)

Don't wait too long; any issue that goes to ACAS needs to be pretty prompt, within 3 months I think - I *believe* that would be from when the manager told you you were 'not in the clear', overriding HR's internal investigation - you're effectively disputing their proposed resolution for the original grievance complaint (yours, and X's), but a specialist would know more.

Also, I really hope the union rep told you this right at the start, but document, document, document. Put everything down you can, in your own words, in a timeline. Add as much evidence (emails, letters) into that timeline as you can. Try and get everything from your employer in writing; if they insist on direct coversation (zoom or phone calls etc), ask to record it; if not, write down your recollection of the content as soon as possible.

Good luck.
posted by Absolutely No You-Know-What at 4:08 PM on November 14 [3 favorites]

This is very, very good advice from Absolutely No You-Know-What above. it's exactly what I would say, plus Absolutely No You-Know-What has UK-specific knowledge that I don't.

I would especially echo the advice to try to get an equity specialist at the union. Your instinct to find someone who understands racism is exactly right.

Absolutely No You-Know-What is correct that unions often do a bad job of protecting their members against harassment. The union has a legal obligation to represent all its members, which means it's supposed to protect members against harassment, but it also needs to protect members who are harassers. In practice, the research shows that unions often do the former poorly, and do the latter aggressively and well.

Unpacking that a bit: most union involvement with harassment consists of the union aggressively defending union members against punishment for harassing somebody. In doing that, unions often resort to really crappy tactics like victim-blaming, attempting to undermine the credibility of the person who was harassed, and accusing them of making it up or exaggerating what happened. So be careful. Because your own union rep/specialist may try to help you, and then that same union will send other people to attack and undermine you. It sucks. Unions are trying to do better (some of them) but their progress is very very slow.

Good luck.
posted by Susan PG at 5:35 AM on November 18

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