The #MeToo movement against sexual harassment and sexual assault gained momentum in October 2017 on the heels of sexual misconduct allegations against film producer Harvey Weinstein.
In the months following #MeToo, companies and organizations in all industries and sectors have seen a profound, unprecedented and persistent uptick in the number of reported employee complaints. #MeToo has empowered employees to come forward with complaints of sexual misconduct or harassment, as well as a variety of other complaints – including complaints of gender and other discrimination, retaliation, and bullying.
Investigations of sexual misconduct and harassment following #MeToo
The recent avalanche of complaints about potentially problematic behavior in the workplace has highlighted the importance of employers taking swift and effective action in response. When an employee alleges harassment, discrimination or retaliation, the law requires employers to promptly initiate an impartial and thorough investigation.
With the backdrop of #MeToo undeniably present in any sexual harassment investigation, workplace investigators can face greater skepticism from both sides of an investigation. The complainant may express concern that her (or his) complaint may be viewed as an opportunistic attempt to “jump on the MeToo bandwagon” or that s/he may be discredited for voicing a complaint for the first time about alleged misconduct from years prior. The respondent may voice fear that “as a privileged, white male in a position of power” he is “a sitting duck in this post MeToo environment.”
It has always been crucial that workplace investigators demonstrate impartiality and independence with their actions, language and tone. By employing existing best practices in performing investigations, workplace investigators can help to ensure that both complainants and respondents receive fair treatment in the #MeToo environment, and that employers feel confident in the integrity of the investigation.
In the aftermath of #MeToo, it is ever more imperative that the investigator approach each investigation as a blank slate, without preconceived notions about the facts to be uncovered during the investigation. Neutrality is a core principle of any workplace investigation; now more than ever, not only must the investigator avoid using language that may unintentionally telegraph a bias in favor of one side, but the investigator must be neutral and impartial. If the investigator cannot conduct the investigation in this manner, the investigator should not agree to undertake the investigation.
Thoroughness is also a necessary element of a good investigation, ever more so following #MeToo. The investigator can demonstrate impartiality by conducting a thorough investigation. As always, investigators must avoid the temptation to jump to conclusions before fully examining the evidence. A thorough investigation does not have to be an endlessly expensive investigation, but it must include a comprehensive investigation of the relevant facts. A less-than-thorough investigation is one that ignores relevant witnesses or evidence, and risks compromising the credibility of the investigator and the integrity of the investigation.
Increasingly, companies facing potentially damaging complaints are retaining external investigators rather than attempting to investigate the complaint internally. This is because outside investigators can more credibly assert impartiality and independence than internal investigators. It is understandably more difficult for a human resources or other company employee to convince a complainant that the company will conduct an unbiased investigation of a complaint that could be damaging to the company if the complaint is substantiated.
It is also understandable that complainants may be skeptical of outside attorney investigators, believing that a lawyer hired by an organization will be biased in favor of the client, the employer. However, attorney investigators are well-positioned to explain that their professional reputation is dependent on conducting unbiased, fair and independent investigations. The right attorney investigator is retained by an employer only for the limited purpose of conducting a neutral investigation and will include a provision in their retention agreement that there is no guarantee as to the outcome of the investigation.
Complainants, respondents and witnesses may be reassured to know that independent investigators play no role in next steps following an investigation; the investigator’s engagement terminates immediately after the investigator has delivered findings to the organization. This ensures that the investigator is not invested in the outcome of the investigation, but only in reaching an impartial, independent and substantiated determination of the facts (utilizing a “more likely than not” or preponderance of the evidence standard).
Investigations of generalized complaints following #MeToo
In the aftermath of #MeToo, employers are increasingly initiating investigations in response to complaints that do not legally require investigation or are more generalized in nature (Mr. Smith is a “bad manager.”). Post #MeToo, employers are also more likely to investigate complaints of sexual, racial or other unlawful harassment that appear unlikely to meet the legal threshold of “severe and pervasive.”
There are a number of factors influencing this increased desire to investigate claims that do not strictly pose a potential legal liability. From a public relations standpoint, companies do not want to be regarded as unresponsive to employee concerns. Further, #MeToo has resulted in heightened awareness of the importance of doing right by employees; employers are more motivated than ever to demonstrate that they take complaints seriously, even if the complaint does not present a serious risk of legal liability. As a result, employers are now more likely to investigate allegations of bullying behavior or other general negative treatment that is not connected to a protected category such as gender, race, sexual orientation, or age.
Some of these complaints present a level of ambiguity for the investigator. A good workplace investigator will always clarify the scope of the investigation with the company at the outset of the investigation. For example, does the company want the investigator to investigate the conduct of a manager who employees describe as rude and dismissive to male and female employees alike? A manager who treats both male and female employees poorly may not engage in gender harassment but nonetheless could negatively impact multiple employees. If so, what is the specific issue on which the employer wants the investigator to deliver findings? Rather than conduct a broad and undefined investigation of the manager’s treatment of employees, the workplace investigator and the employer should agree on concrete parameters of alleged conduct to be investigated.
If the investigator does not clarify the scope of the investigation at the outset, there is a considerable risk that the investigation will prove unnecessarily costly, will not serve as a useful tool to enable the employer to address problematic issues raised by the complaint, and could potentially create claims that do not otherwise exist.
Conclusion
Ultimately, #MeToo has increased the volume of complaints and investigations of those complaints, and it has amplified the importance of workplace investigators employing existing best practices. Retaining a competent investigator who employs best practices ensures the integrity of the investigation and enables the complainant, the respondent, the witnesses, and the employer to feel confident in the impartiality, fairness, and thoroughness of the investigation.
