Employers conducting sexual harassment investigations in response to the rising accusations being made in gentle of the “#MeToo” motion must proceed cautiously, consultants say.
All harassment probes needs to be performed in an unbiased method, whatever the rank or significance of the accused, and needs to be broad and thorough, they are saying.
Many authorized consultants say extra employers are turning to them for recommendation on appropriately conduct the investigations.
“These investigations are evolving, and I feel employers haven’t all the time executed a very good job by way of who does them and the way they’re executed and what’s executed with the outcomes,” mentioned Paul E. Starkman, a member of legislation agency Clark Hill P.L.C. in Chicago.
It is very important deal with everybody equally, consultants say. Many corporations over time have handled high-ranking executives or star performers much less harshly than brand-new or manufacturing staff, mentioned Richard R. Meneghello, a companion with Fisher & Phillips L.L.P. in Portland, Oregon. “Even when it’s your star performer, you need to apply your insurance policies persistently.”
One method to stay unbiased is to keep away from deciding on an investigator who is aware of both occasion to the grievance, say consultants.
“Clearly, if somebody is aware of or works carefully both with the claimant or the alleged harasser, that look of impartiality goes to go by the wayside,” mentioned Sage R. Knauft, a companion in Orange, California, with WFBM L.L.P., which does enterprise as Walsworth.
“It’s higher to have an investigator who doesn’t actually know the events concerned very nicely, as a result of they’re extra seemingly to enter every part with an open thoughts, whether or not it’s somebody in a big firm who doesn’t know the events concerned or an out of doors human sources marketing consultant or counsel,” mentioned Robin E. Shea, a companion with Constangy Brooks, Smith & Prophete L.L.P. in Winston-Salem, North Carolina.
Relying on the group’s nature and the extent of the executives concerned, corporations “might must create a particular committee of the board or a gaggle made up of human sources and authorized and compliance” to find out the place to go along with these claims, mentioned Philip M. Berkowitz, a shareholder with Littler Mendelson P.C. in New York.
“Corporations want to verify their boards of administrators know what they’re doing when there’s a grievance like this involving any person at a excessive degree,” mentioned Ms. Shea. Many boards “do not know what to do if any person have been to return to them with a sexual harassment allegation,” she mentioned.
“Chances are you’ll need to a minimum of think about having an investigator retained by counsel” in order that a minimum of at first the report can be thought of privileged info, even whether it is subsequently determined to waive the privilege, Mr. Berkowitz mentioned.
He steered additionally that employers have an inventory of respected third-party investigators ready within the occasion of an emergency.
Make sure that investigators don’t bounce to conclusions and that “all people will get a good alternative to inform their facet of the story” earlier than any steps are taken, mentioned Johanna G. Zelman, a companion with FordHarrison L.L.P. in Hartford, Connecticut.
Mr. Starkman mentioned, “It’s important to watch out about investigators’ inherent bias and dealing in the direction of a predestined consequence, and transfer away from what might have been, prior to now, a presumption that particular person is harmless till there’s precise direct proof proving them responsible,” he mentioned.
He mentioned additionally, “The previous sort of ‘he mentioned, she mentioned’ and sort of throwing up your arms and doing nothing, I don’t assume, is an satisfactory response any extra, particularly if you’re speaking about a number of sources.”
“The precise method to do it’s to make use of normal questions, to get the complainant’s story straight, discover out who the witnesses are, speak to them, then collect your proof to current to the accused particular person,” he mentioned.
Then, “you need to take applicable actions primarily based on the circumstances which might be in entrance of you, with out essentially making an final choice as as to whether there’s authorized legal responsibility there or not,” mentioned Mr. Starkman.
Don’t promise confidentiality, mentioned Brian D. Corridor, a companion with Porter Wright Morris & Arthur L.L.P. in Columbus, Ohio. Folks “have to grasp — and it’s for everybody’s safety — that you simply’re going to take that investigation the place it leads, and promising confidentiality is opposite to that.”
One mistake employers typically make is in failing to observe leads, mentioned Ms. Shea. They are going to speak to solely the 2 events concerned, or typically witnesses will advocate they speak to others, however the investigators by no means observe up.
It’s also essential go embrace proof “not associated to human beings,” equivalent to documentation, proof from surveillance cameras or textual content messages, she mentioned.
“It’s essential to let the investigation go the place it’s going to go,” mentioned Mr. Corridor. “Don’t wrap it up too shortly,” he mentioned, including sexual harassment investigation “must run its course.”’
Nonetheless, keep away from letting the investigation get out of hand, mentioned Mr. Berkowitz, pointing to a report of a case through which there have been 75 witnesses. “That may be an obstacle to transferring ahead in any respect,” he mentioned.
There needs to be open strains of communications as to the following step, he mentioned.
Establish the boundaries of the investigation, conclude it promptly and get the outcomes as quickly as potential, Mr. Berkowitz mentioned. “These items will be terribly distracting to the enterprise and the people concerned.”