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Proceed cautiously with #MeToo harassment investigations

Posted On: Mar. 13, 2018 6:46 AM CST

Proceed cautiously with #MeToo harassment investigations

Employers conducting sexual harassment investigations in response to the increasing accusations being made in light of the “#MeToo” movement need to proceed cautiously, experts say.

All harassment probes should be conducted in an unbiased manner, regardless of the rank or importance of the accused, and should be broad and thorough, they say.

Many legal experts say more employers are turning to them for advice on how to appropriately conduct the investigations.

“These investigations are evolving, and I think employers haven’t always done a good job in terms of who does them and how they’re done and what’s done with the results,” said Paul E. Starkman, a member of law firm Clark Hill P.L.C. in Chicago.

It is important to treat everyone equally, experts say. Many companies over the years have treated high-ranking executives or star performers less harshly than brand-new or production employees, said Richard R. Meneghello, a partner with Fisher & Phillips L.L.P. in Portland, Oregon. “Even if it’s your star performer, you have to apply your policies consistently.”

One way to remain unbiased is to avoid selecting an investigator who knows either party to the complaint, say experts.

“Obviously, if someone knows or works closely either with the claimant or the alleged harasser, that appearance of impartiality is going to go by the wayside,” said Sage R. Knauft, a partner in Orange, California, with WFBM L.L.P., which does business as Walsworth.

“It’s better to have an investigator who doesn’t really know the parties involved very well, because they’re more likely to go into everything with an open mind, whether it is someone in a large company who does not know the parties involved or an outside human resources consultant or counsel,” said Robin E. Shea, a partner with Constangy Brooks, Smith & Prophete L.L.P. in Winston-Salem, North Carolina.

Depending on the organization’s nature and the level of the executives involved, companies “may have to create a special committee of the board or a group made up of human resources and legal and compliance” to determine where to go with these claims, said Philip M. Berkowitz, a shareholder with Littler Mendelson P.C. in New York.

“Companies need to make sure their boards of directors know what they’re doing when there’s a complaint like this involving somebody at a high level,” said Ms. Shea. Many boards “have no idea what to do if somebody were to come to them with a sexual harassment allegation,” she said.

“You may want to at least consider having an investigator retained by counsel” so that at least at first the report would be considered privileged information, even if it is subsequently decided to waive the privilege, Mr. Berkowitz said.

He suggested also that employers have a list of reputable third-party investigators prepared in the event of an emergency.

Make sure investigators do not jump to conclusions and that “everybody gets a fair opportunity to tell their side of the story” before any steps are taken, said Johanna G. Zelman, a partner with FordHarrison L.L.P. in Hartford, Connecticut.

Mr. Starkman said, “You have to be careful about investigators’ inherent bias and working towards a predestined result, and move away from what may have been, in the past, a presumption that person is innocent until there’s actual direct evidence proving them guilty,” he said.

He said also, “The old kind of ‘he said, she said’ and kind of throwing up your hands and doing nothing, I don’t think, is an adequate response any more, especially when you’re talking about multiple sources.”

“The right way to do it is to use standard questions, to get the complainant’s story straight, find out who the witnesses are, talk to them, then gather your evidence to present to the accused person,” he said.

Then, “you have to take appropriate actions based on the circumstances that are in front of you, without necessarily making an ultimate decision as to whether there’s legal liability there or not,” said Mr. Starkman.

Do not promise confidentiality, said Brian D. Hall, a partner with Porter Wright Morris & Arthur L.L.P. in Columbus, Ohio. People “have to understand — and it’s for everyone’s protection — that you’re going to take that investigation where it leads, and promising confidentiality is contrary to that.”

One mistake employers sometimes make is in failing to follow leads, said Ms. Shea. They will talk to only the two parties involved, or sometimes witnesses will recommend they talk to others, but the investigators never follow up.

It is also important go include evidence “not related to human beings,” such as documentation, evidence from surveillance cameras or text messages, she said.

“It’s critical to let the investigation go where it’s going to go,” said Mr. Hall. “Don’t wrap it up too quickly,” he said, adding that a sexual harassment investigation “needs to run its course.”’

However, avoid letting the investigation get out of hand, said Mr. Berkowitz, pointing to a report of a case in which there were 75 witnesses. “That can be an impediment to moving forward at all,” he said.

There should be open lines of communications as to the next step, he said.

Identify the boundaries of the investigation, conclude it promptly and get the results as soon as possible, Mr. Berkowitz said. “These things can be extraordinarily distracting to the business and the individuals involved.”