Investigating harassment claims in a #MeToo world

Historically, the U.S. government, corporate industries, radio, television, Hollywood film industry, music industry, and even the military have been perceived as “good old boys” clubs. Of course, these industries and professions have made significant progress in hiring and promoting women. However, in the era of #MeToo, the legacy of this gender imbalance has made these work environments ripe for internal and external harassment claims and allegations of sexual exploitation, improper sexual behavior and ethics violations.

Those who feel that they have suffered a lack of advancement, harassment, bullying and sexual advances, either directly or indirectly, are now willing to come forward. The reputation of these industries provides historical evidence of the complaints now being filed.

As an independently contracted investigator or an in-house human resource director supervising an investigation of this nature, your job is to conduct a thorough investigation in the search for the facts, documents and evidence which will support or deny the allegation made in the claim. You must conduct an unbiased, ethical and well-planned investigation and in doing so, make every effort to reveal facts and evidence which will minimize liability to your client or the firm, company or employer involved.

Lastly, the investigation should protect the rights, privacy and confidentiality of the employee making the allegation. Once the investigation begins, there should be no communication outside of the investigation team to the media until the entire investigative team, including counsel, has convened and agreed on the company’s stance, investigative plan and the verbiage to be presented in the communications released.

Following are three ideas to consider when conducting investigations into #MeToo allegations.

Determining the scope & type of investigation

Never rush into any investigation without a plan or considering the best and worst outcomes an investigation might produce. Assess each phase and the possible outcomes. If the client or company has access and the financial ability to retain outside counsel, they should be involved in determining the investigation scope and accessed as needed throughout the entire process. Discuss the benefits of outside counsel vs. in-house counsel. The investigative team should also consider the following questions in designing the overall investigative plan:

• How will we maintain confidentiality?
• Who will have access to the investigation plan, documents and evidence?
• How will we identify witnesses who will either support or deny the allegation?
• Who will be interviewed?
• Where will interviews be conducted?
• How many interviews will be conducted in each phase of the investigation?
• How much and what evidence, data and documents should be collected?
• What criminal and/or civil laws apply to the allegation?
• What criminal or civil laws may have been violated?
• Considering the allegations and the parties involved, could the case uncover further wrongdoing that may result in additional litigation?
• Is it possible that the allegation and investigation may attract attention from the news media, law enforcement or any other government agencies?
• Is mandatory reporting required given the allegation?

If the case moves into a “high risk” situation based on these considerations, retain external counsel to assist in-house counsel during the investigation.

Investigation factors

The scope of the investigation should be wide enough to collect, preserve and analyze all evidence and information obtained.

There are multiple aspects of evidence to consider, and some may require counsel to prepare a release to access the data:

• Phone data:
  • Call records to and from all parties.
  • Call records of multiple calls to friends and family during the allegation time period.
  • Texts between all parties.
  • Various digital messaging platforms and apps.
  • App logs and others.
• Other evidence sources:
  • Consider downloading all copy machine memories that could have been accessed by all parties to the allegation.
  • Photographs of a cubicle or office décor.
  • Past and current office party or gathering photographs.
• In-person witness interviews:
  • Victim’s list of witnesses.
  • Employer’s list of witnesses.
  • Co-worker witnesses.
  • Friend witnesses.
  • Family witnesses.
  • Associated witnesses — catering staff, janitorial workers, facility workers, etc.

An important factor involves keeping a continuing log of the documents, evidence and interview dates as they are collected during the investigation. Involved individuals will still communicate, especially as rumors begin to fly. Confidentiality is important and company policies concerning documents, emails, telephone use and surveillance should be in place and current.

The final report

An investigation report is a critical tool. Counsel and management may want more than one report such as:

• Investigation — Findings of facts and evidence.
• Recommendations report — A report compiled by a completely different assessing body of administrators.
• Counsel review — This report highlights the recommendations of counsel as to the potential evidence revealed and the possible need to defend a claim of harassment to include the subject employee’s sanctions or dismissal.

When investigating these cases and claims, the investigator must remember that counsel should be involved and that the attorney-client privilege must be maintained at all times. Choosing to be selective in disclosing the facts involved in the case in order to gain client or company advantage could result in an argument before the court that the attorney-client privilege has been waived due to the information contained in the report. Counsel should review and approve all reports before finalizing, placing into the case file and disseminating.

Consultants and collaborators

During the investigation, the investigator may enter areas outside of his or her personal expertise and require the assistance of consultants and other collaborators such as:

• Computer analyst — For inspection and evidence preservation
• Computer forensics analyst — For evidence preservation
• Cellular telephone analyst
• Social media analyst — For research and evidence preservation
• Case law researcher

Investigation cautions

Improperly managed investigations can go south fast. Some executives, unions, boards or supervisors will try to impede the investigation by concealing evidence or documents, or providing misleading statements. The client, counsel and investigator must make it very clear that truthfulness and transparency are vital and that statements from witnesses will be confidential, respectful and free of bias.

Traditionally, the employer bears the cost of the investigation by appointing an investigator with human resource oversight. Over the past year, the #MeToo movement has generated a 25% increase or approximately 1,000 new cases into the spotlight of corporate America.

These cases are not unusual, however, as investigators have been working to include gender investigations for decades despite interference by CEOs and those who are far less famous and influential than some accused today. Even the most experienced and principled investigators will find themselves being pressured by companies trying to mold an investigation into a desired outcome or shaping the “truth” into their own best interests.

The ethics of #MeToo investigations

Despite how hard investigators try to be fair and impartial, they will experience challenges to the ethics and professionalism by the powerful, rich and famous. The investigator must adhere to an unbiased and impartial approach to each case. It is far better to lose a case than to lose your integrity as an investigator.

On the other hand, ethical companies will seek to do the right thing during the investigative process. They truly want fairness and impartiality to prevail. Fact is, they might sanction the subject employee with a loss in salary or hold back a bonus but then be forced to keep the information contained in the investigation under wraps to comply with all privacy laws, restrictions and considerations.

In these situations, other employees in the victim employee’s company or department due to the confidential closure of the case are left with the impression that either the report was concealed, whitewashed, or the company chose to do nothing about the allegation. Caution the team involved in the investigation that ending an investigation properly and ethically is just as important as starting an investigation the same way, as a wrong decision in the ending of a #MeToo investigation can and has caused an explosion of #MeToo claims to follow.

As courageous women present claims based on fact and supported by real evidence and not conjecture, there will be more and more of these cases involving high-ranking public officials, politicians, corporate CEOs, powerful entrepreneurs and others who will not be able to escape the exposure and headlines of their behavior. As a profession, we must create and hold an ethical and professional standard and do more to ensure that every investigation is conducted fairly and every investigator is held accountable.

CW (cwsellers@tsigusa.com) and Sherry (ssellers@tsigusa.com) Sellers are the owners and managers of Sellers & Associates/The Sellers Investigative Group based in California.

See more:

#MeToo movement continues to impact workplace awareness, policies

Counting the cost of harassment claims