In the last edition, I looked at the criteria organizations can use to determine if an internal investigator is appropriate in a particular situation. Next, we can look at the criteria that might demand a neutral third party to investigate a complaint.
There are a number of factors that organizations should use to determine when an external investigator should be used.
Public Scrutiny
The media now treats an investigation as a newsworthy part of the harassment landscape. Before #MeToo, an organization might make its way from complaint to consequence with little to no discussion of the investigation. How does the organization send the message that the issue is being taken seriously without drawing a conclusion? Hiring an outside investigator to visibly demonstrate the seriousness of the response is one way to ease public concern.
The Need to Investigate More Complex Behavior
Sometimes an outside investigator is needed when the issue involves more complex behavior. For example, when multiple allegations surface at the same time, when the allegations are older and require more nuanced investigative techniques, or when victim trauma might be involved, such as when a physical or sexual assault is alleged. In these cases, the likelihood of criminal charges accompanying the harassment claim has increased.[i] The nuances of proceeding in these complex circumstances sometimes requires more expertise or time than an internal investigator can provide.
The Need for Well-Trained Investigators
Retaining external investigators may be even more necessary in Idaho, where the lack of internal, well-trained investigators is apparent. Idaho has several large organizations with well-trained internal staff, but the vast majority of Idaho employers are smaller businesses. These businesses may have internal HR professionals who are very good at their jobs, but who have not been specially trained in investigative techniques. A particular investigation may demand a well-trained investigator.
The Need to Investigate High Level Leaders
When a “superstar” or executive leader is the target, the need for an outside investigator is almost mandatory. This is particularly true in the post-#MeToo world, where there is a sense that internal investigators might be influenced by powerful people within the organization. In another recent case, the Faragher/Ellerth defense was denied because of investigator bias,[ii] which would be easy to allege with a high-profile harasser.
In high profile situations, even using trained internal investigators, with oversight from external legal counsel, has been criticized. NBC News, with an allegation against Matt Lauer, chose to use in-house legal professionals, with “oversight” from outside counsel. The resulting report[iii] absolved the organization of responsibility. The investigation was roundly criticized[iv] as many argued that an outside entity should have been retained to avoid even the appearance of bias.
Recent examples in Idaho include (1) the state controller’s office hired an outside investigator to examine complaints against a top aide, stating the move would: “keep the fact finding process independent and unbiased for all parties” and; (2) an independent investigation into University of Idaho Athletic Director Spear’s handling of assault and harassment claims led to his termination. Other examples may exist, but have not been publicly reported.
Potential for Shareholder Suits for a Publicly Traded Company
Several high-profile harassment claims have given rise to shareholder suits. The shareholder suit against Fox (after Ailes and O’Reilly) alleged an ineffective response, and perhaps even a “cover up” for the misconduct. To prevent these types of cases, the company may hire an investigator whose only vested interest is in discovering the truth, who has the ability to ask the tough questions, and who is able to reach an objective conclusion regardless of potential liability for the organization.
Other Factors
There are other factors that might call for an outside investigator. For example, where there is potential for a contentious fight or lawsuit that might require expert testimony from an outside investigator. Often, an outside investigator is a professional who can testify effectively and credibly about standards and best practices. An individual with the right experience, would be able to credibly speak about the investigation and standards. Outside investigators often have certifications, experience in testifying, and an in-depth knowledge of investigation protocol.
[i] Harvey Weinstein, the infamous Hollywood mogul who began the #MeToo movement with his abhorrent behavior, has been charged with multiple counts of rape. He and his company also face many lawsuits. See, e.g., Federal Insurance Co. v. Weinstein, Index No. 650952-2018 (N.Y. Supreme Court 2018)(insurance coverage involving coverages for eleven underlying lawsuits for assault or harassment); Noble v. Weinstein, 17 Civ. 9260 (RWS)(S.D.N.Y. 2018)(sex trafficking); Canosa v. Ziff, 18 Civ. 4115 (PAE)(S.D.N.Y. 2018)(rape, abuse, harassment). The Weinstein Company has also declared bankruptcy.
[ii] See Brown v. City of Allen Park, No. 17-12403 (E.D. Mich. 2018)(Individual who conducted investigation was himself accused of harassment, and failed to conduct reasonable steps to thoroughly investigate).
[iii] NBC News Workplace Investigation, located at http://media1.s-nbcnews.com/i/today/z_creative/NBCNewsWorkplaceInvestigation.pdf?icid=related.