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Investigation Best Practices in the Wake of #MeToo

As a human resources professional, general counsel or employment attorney, you have seen many #MeToo headlines since the fall of 2017. In response, you have revised harassment policies, rewritten investigation procedures – perhaps with emphasis on sexual harassment complaints,1 and admonished against retaliation. You have trained and re-trained employees, supervisors and C-suite officers. You have helped foster a respectful organization that embraces diversity and inclusion. And yet…and yet…a casual call or breakroom discussion reveals a chink in the armor. Someone feels harassed; someone feels discriminated against. The process that will put all that careful planning and preparation to the test unfolds. This article will discuss some “best practices” to keep in mind as you navigate the complaint investigation process.

The Complaint

It’s important to recognize a complaint even when it does not look like the “textbook version” of what you believe a complaint to be. An employee who feels s/he is being treated unfairly or inappropriately at work may utilize a complaint hotline or approach a human resources business partner with his/her concerns. Or, the employee may simply tell a co-worker who tells another co-worker who casually mentions it to a supervisor. In either case, it is imperative that the appropriate individual becomes aware of the concerns and takes appropriate action, starting with the following stated policies and procedures regarding conducting investigations. Err on the side of caution when considering whether a rumor or casual conversation constitutes a “complaint.” At a minimum, take steps to gather additional information regarding the rumor or conversation, do not ignore it. Ignoring, minimizing or (worst-case) discouraging complaints can have devastating consequences for the employer. In a recent case, repeated complaints about sexual comments and pornography within the organization, which were ignored, resulted in punitive damages against the company.2

Avoid (Even the Appearance of) Bias

Start by utilizing the appropriate investigator. Investigators should be neutral factfinders who are far-removed from all things related to the complaint – the complainant, witnesses, accused, and department or organization that is affected. If it is difficult for the investigation to be conducted objectively using an internal resource, a third-party investigator may be the most appropriate option. Actual or perceived bias of the investigator can derail an investigation from its outset and/or skew its outcome. Worst-case scenario, a jury may award punitive damages if it finds a biased investigator affected the outcome of the investigation. For example, a Lexus dealership utilized an investigator who admitted to being biased in that he did not believe the complainant’s assertions, warned complainant that her complaint might jeopardize her future with the company, and failed to interview pertinent witnesses. The investigator’s behavior resulted in a significant punitive damages award against the company.3

Additionally, as addressed in Gyulakian, in order to avoid the appearance of bias and in order to conduct a thorough investigation, an investigator should hear all sides of “the story.” In almost every investigation, the witness list should include the complainant, any fact witnesses, and the accused. Witnesses often come to interviews with a file full of documents, which could include a written summary of their version of events, copies of emails or other forms of communication, performance evaluations and copies of company policies. While not all documents provided by witnesses are useful to the investigator, it is important to at least review these submissions and consider the relevant information that witnesses provide. Failure to do so could give the appearance of bias.4

The Investigation Plan

Another way to avoid bias and ensure a thorough investigation is to create an investigation plan.  The investigator should create the investigation plan after receiving the complaint and prior to engaging in any fact-finding activities. The plan should lay out the road map of the investigation, including a brief summary of the background and issues to be investigated, logistical contacts, report recipients, identity and order of witness interviews, method of interviews (in most cases, an in-person interview is ideal, especially if there are any credibility concerns associated with the witness), anticipated documents to be reviewed, and a timing estimate for the fact-finding portion of the investigation. The investigation plan is a living document, and changes may be made to it as the investigation progresses.

Once the investigation plan is in place, the investigator should follow the plan to the letter. If the investigator fails to interview a witness listed in the plan, the investigator should document the reason the witness was not interviewed. Conversely, additional witnesses who were not originally listed in the plan may be interviewed if during the course of the investigation they are identified as potentially having relevant information, and their names should be added to the witness list contained in the plan. Witnesses should be encouraged to provide information on any concern raised in the complaint, and should have the opportunity to comment on any documents, policies or evidence on which they may be able to shed light. This meticulous planning is in an effort to conduct a thorough investigation as courts have found employers liable for failure to do just that. For example, an Aramark employee complained that graffiti depicting her engaged in sex acts and being sexually assaulted appeared on a bathroom wall in the workplace. Additionally, she alleged that photos of the graffiti were being circulated around the organization and had appeared on Facebook posts. Evidence revealed that when the employee complained, a company human resources director and a company supervisor did not conduct a thorough investigation in that they failed to take notes during witness interviews and refused to look at evidence including photographs and the actual Facebook posts. Consequently, the court denied the employer’s motion for summary judgment and held that a reasonable jury may find that the conduct created a hostile work environment.5

The Report

A thorough, unbiased investigation based on a solid investigation plan should yield a thorough, unbiased report. The report may come in different formats but all reports should contain sufficient details to explain and justify the factual findings. If requested, a report may measure the factual findings against relevant company policies to determine whether the stated behaviors are inconsistent with relevant company policies. Taking this concept further, the information contained in the report should support any remedial action taken as a result of the investigation.

Generally, it falls outside the scope of the investigator’s responsibility to recommend appropriate remedial action, but the goal of the report should be to give the decision-maker enough information to make an informed decision. In Serrano v. Cinemark USA,6 the employer investigated and found that several assistant managers at a movie theatre violated the company non-fraternization policy. Two females who were terminated claimed discrimination because no male employees were terminated. A review of the investigation showed the female employees had committed more serious violations than their male counterparts, which justified their terminations, and the female managers’ claims failed as a matter of law. Thus, a thorough investigation and factually complete report provided protection for the employer when making appropriate remedial decisions.

Completing the Investigation and Retaliation

While fact witnesses involved in the investigation may be curious as to the results of the investigation, confidentiality considerations dictate that by and large, fact witnesses should never know the outcome of an investigation. The complainant should be told generally whether or not the complaints were substantiated and whether remedial action (but not what type of action) was taken. Finally, the accused also should be told whether the results of the investigation substantiated the allegations, and if so, what remedial action will be taken.

Though the investigation may be complete at this point, the obligation continues for employees to refrain from engaging in acts of retaliation against witnesses or other participants in the investigation. Because retaliation currently is the most common form of discrimination alleged with the EEOC, employers should take steps to ensure all participants in an investigation are treated fairly so that employers avoid even the appearance of retaliation. Regardless of the results, those who advise the employer should consider updating and delivering anti-harassment and sensitivity training to remind employees of their rights and obligations under company policies.

The #MeToo movement has created the impetus to sharpen best practices as it relates to harassment and discrimination. As investigations are a key component in addressing and preventing harassment within organizations, examining investigations best practices is a key step in creating a respectful organization in the wake of #MeToo and beyond.

This article was originally published in The Houston Lawyer, September/October 2019 Edition.

1 Susan Hance Sorrells, Special Considerations in Sexual Harassment Investigations, Aug. 2018, EPS Whitepaper.
2 Scuffle v. Wheaton & Sons, Inc., W.D. Pa. No. 2:14cv708, 2015 U.S. Dist. LEXIS 33549 (March 18, 2015).
3 Gyulakian v. Lexus of Westchester, Inc., 475 Mass. 290, 56 N.E.3d 785 (2016).
4 Wheat v. Fifth Third Bank, No. 13-4199, (6th Cir. 2015).
5 Meng v. Aramark (N.D. Ill. 2015).
6 (N.D. Ind. 2016).