It will come as no surprise to most of our readers that, in the 12 to 14 months following the advent of the #MeToo movement, we have seen a marked uptick in the request for advice and assistance in the conduct of sexual harassment investigations. Below are some thoughts to keep in mind when approaching this issue, and when to bring in the professionals.
What’s Different Now?
We all know that, especially in light of the current climate, sexual harassment allegations must be taken seriously and dealt with appropriately. The EEOC has reported a significant uptick in the number of sexual harassment charges filed in the last fiscal year (12%), the number of lawsuits that the EEOC itself has instituted involving these issues (50%), and the size of the settlements that the EEOC has extracted ($20 million rise). In short, this is not the time to be in the crosshairs of a state or federal enforcement agency.
Making matters worse, sexual harassment investigations are often some of the hardest proceedings to conduct. They frequently come down to a he-said-she-said scenario, in which individuals are viewing conduct through very different social lenses, and drawing wildly different conclusions about the import of their conduct. You’re also approaching a moving target: just when one allegation has been resolved, new claims come to the fore. So, with these complications in mind, what do we do?
First, don’t panic. As all human resources professionals know, the term “hostile work environment” has a colloquial meaning as well as legal significance. Just because an employee believes that he or she has been subject to hostile treatment, does not render that treatment unlawful discrimination. Talk to the complainant, and get the details. Identify the alleged harasser(s), all possible witnesses, relevant documents, and assess whether this is a claim of actual discrimination, or a personality conflict. If the employee cannot tell you why he or she is suffering harassment (my race, my sex, my age, my disability, etc.) then we usually have a less serious situation on our hands.
Identify Your Investigator
Assuming you have a valid harassment complaint on your hands, the next step is to identify your investigator. First, you need to assess whether this is something you can handle internally or whether it should be outsourced to a consultant or an attorney. Routine claims of workplace misconduct, especially coworker-against-coworker, can often be handled internally. The key is to identify an investigator who has the integrity, experience, and judgment to manage the situation. Remember that just because an individual is a trained human resources professional doesn’t mean they’re an ideal investigator—we all have strengths and weaknesses. Make sure anyone you select has the right disposition to do a good job.
There are also certain situations where an internal investigator just doesn’t make sense. First and foremost, any allegations against members of the human resources department or senior leadership should be outsourced for investigation, to avoid allegations of bias or impropriety. You should also consider an outside investigator when the complaint includes allegations of legal misconduct beside harassment, i.e. claims that someone has violated financial or environmental laws or regulations. These are areas where attorneys may be best situated to analyze the allegations, and retain other third party consultants (such as accountants) to investigate and verify what has occurred.
Conducting the Investigation
If you decide that an internal investigation is the best course of action, following are some steps to consider in crafting your approach. First, determine what you’re investigating. Define the scope of the inquiry. Are you looking at policy violations, legal violations, or allegations of poor management? Who are your witnesses? Remember that as you investigate, your scope may shift. But be careful not to bite off more than you can chew. Just because a complainant says that “everyone is miserable” doesn’t mean you have to interview every member of a 60-person department. Start with people who are alleged to have observed actual misconduct, and decide from there whether a broader investigation is actually necessary.
Second, be quick but deliberate in your investigation. As we have often said before, don’t over commit and under deliver. Never promise to complete an investigation in a set number of days, weeks, or even months. It’s not unheard of for your alleged harasser to catch wind of what’s going on, and suddenly require twelve weeks of FMLA leave in the middle of your investigation. Set realistic goals, but keep them internal, so that the complainant does not have cause to be upset when the entire process isn’t wrapped up with a bow in 7 business days.
Finally, prepare a report and share your findings, in a general sense, with the complainant, any other alleged victims, and the alleged wrong-doer. Keep in mind that reports to the complainant and other related witnesses should respect the privacy of the subject of your investigation. Human resources decisions are confidential. What you should do is validate the concerns of the reporting individual, even if you cannot substantiate their allegations. In other words, even if you do not find that the conduct at issue rises to the level of unlawful sexual harassment, assure the complainant that you hear and understand their concerns, that there is clearly room for improvement in the workplace, and the company is committed to resolving the conflicts at issue.
Investigations are hard, and the stakes are high. No one should panic upon receiving a complaint of harassment in the workplace, but you should take all of these allegations seriously, and think carefully and strategically about how best to respond to the claims presented. And remember, even if you elect to conduct the investigation internally, you can always obtain guidance from outside counsel if you’re unsure about the best course of action