The Increasing Complexity of Responding to Harassment Complaints After #MeToo

I have been tracking some of the developments in #MeToo pretty closely. And because a lot of what I do relates to investigations of workplace misconduct, organizational response has been a focus. This is the first part of a multiple part series on how harassment responses have changed under #MeToo. First, what has changed about the responses for internal investigations?

For decades, employment lawyers have understood “the rules” for preventing and correcting workplace harassment. One prevention tool mandates that when an employer receives a harassment complaint, the employer begins a confidential investigation, either with an internal or external investigator. Once a prompt, thorough, and impartial investigation is complete, the employer uses the information to make decisions that will correct the problem. While some litigation resulted from such complaints, lawsuits were rare, and it appeared the initial response resolved the issue.

In 2018, there has been a dramatic increase in the number of formal complaints at both the federal and state levels. This has heightened the need for organizations, and their attorneys, to revisit their harassment prevention and response efforts, including investigations. Leaders must develop a complex and thorough understanding of harassment, its causes, effective responses, and appropriate employer actions. Many of these needed actions are beyond the scope of this short article. Here, we focus upon the increasing complexity of the investigation phase of a complaint response.

There is increasing pressure to assure that harassment investigations are professional and thorough. An inadequate investigation will be publicly scrutinized and criticized. The investigation must be untainted by personal connections to the accused, which can lead to claims of cover-up. Witness the backlash involving Roger Ailes and Bill O’Reilly at Fox News. While both were eventually ousted, it was not without resistance and inadequate investigation at Fox, and resulted in a massive shareholder suit, including a dramatic drop in organizational value, because the complaints were allegedly not handled properly. Other organizations have seen similar business and economic impacts from harassment left unchecked.

In January 2017, the EEOC issued a Proposed Enforcement Guidance which details how the EEOC will assess employer internal investigation efforts. These factors are important:

***An adequate response system is fully resourced (i.e., Human Resources staff have adequate resources, from people to systems) and allows for a prompt, thorough and effective response.

***The system includes investigators who are:

(1) well-trained in the art of investigating complaints;

(2) objective;

(3) neutral (no internal alliances that might implicate bias);

(4) have the authority to make hard decisions and have their recommendations considered strongly;

(5) have the independence to determine the best methods and approach, and reach independent conclusions;

(6) have the resources to receive, investigate and resolve complaints appropriately;

(7) understand and maintain confidentiality;

(8) are skilled in using standard guidelines to weigh credibility; and

(9) are capable of documenting all steps of the investigation and findings.

***A response system must also be constructed:

(1) to take all questions, concerns and complaints seriously;

(2) to respond promptly and appropriately, and;

(3) to encourage reporting concerns.

Given these criteria, organizations should:

(1) develop written internal standards for investigations;

(2) assure that investigators receive adequate training; and

(3) assure that there are sufficient resources to conduct investigations promptly and thoroughly.

If these criteria exist, then an internal system for conducting investigations may suffice in many circumstances. However, there may still be situations that require an external, unbiased investigation.

In the next post, I will explore those factors that may require a decision to employ an outside investigator.

Sources:

A book published by the author, Bobbi K. Dominick, PREVENTING WORKPLACE HARASSMENT IN A #METOO WORLD: A GUIDE TO CULTIVATING A HARASSMENT-FREE CULTURE (SHRM Publishing 2018) details some of the additional issues, such as culture, leadership, policies, training, etc.

For the EEOC guidance: Proposed Enforcement Guidance on Unlawful Harassment, dated 1/10/2017, located at https://www.regulations.gov/docket?D=EEOC-2016-0009. It is unknown when a final guidance will be issued, as the EEOC continues its study of harassment, lacks a full complement of commissioners, and at the moment of this writing, lacks a quorum with the expiration of Commissioner Feldblum’s appointment.

Read the Fox complaint here: https://www.blbglaw.com/cases/00318/_res/id=Attachments/index=1/2017-11-20%20(EFILED)%20Verified%20Derivative%20Complaint.pdf. Settlement required a payout of $90 million dollars and massive changes in the harassment response systems, located here: https://www.sec.gov/Archives/edgar/data/1308161/000119312517356448/d495777dex991.htm.

See, e.g. Michael Sheetz, Wynn shares tumble 10% after reports of ‘decades-long pattern of sexual misconduct’ by CEO Steve Wynn, CNBC (January 26, 2018) available at https://www.cnbc.com/2018/01/26/wynn-stock-drops-7-percent-after-alleged-sexual-misconduct-by-steve-wynn-report.html; Emily Steel and Michael S. Schmidt, Fox losing more advertisers after sexual harassment claims against O’Reilly, (April 5, 2017), https://www.bostonglobe.com/business/2017/04/04/fox-losing-more-advertisers-after-sexual-harassment-claims-against-reilly/gQmrmdkvUfmijoAe6n2EgM/story.html; Tim Carman and Maura Judkis, Celebrity chef Mike Isabella declares bankruptcy in wake of sexual harassment lawsuit, WASHINGTON POST (September 6, 2018), https://www.washingtonpost.com/lifestyle/food/celebrity-chef-mike-isabella-declares-bankruptcy-in-wake-of-sexual-harassment-lawsuit/2018/09/06/0ae64a50-b12e-11e8-aed9-001309990777_story.html?utm_term=.f9c0099c82ba.

See Press Release, EEOC Releases Preliminary FY 2018 Sexual Harassment Data, EEOC (October 4, 2018) available at: https://www.eeoc.gov/eeoc/newsroom/release/10-4-18.cfm.