A 21^st Century Social Movement

In this age of interconnectivity, compelling societal movements have a never-before-seen speed and reach. Traditional means of spreading information and generating social change have been supplemented—if not outright replaced—by the near-instantaneous ability of an idea or cause to go viral on social media, regardless of its source. In 2018, the gatekeepers—and indeed, the gates—to disseminating content and generating popular support are being dismantled before our eyes. Nowhere over the past year was this more evident than in the #MeToo movement.

In brief, #MeToo is a widespread social movement against sexual harassment and assault, particularly in the workplace.^[1] The movement began in or about October 2017 as a social-media hashtag designed to expose the problem and ubiquity of harassment and misconduct—predominantly against women—in the workplace. In subsequent months, an avalanche of highly-credible allegations were brought to light against prominent and powerful individuals across every imaginable landscape. Entertainment, politics, journalism, academia, education, or business; virtually no industry or profession was immune to the long-overdue and ignominious realization that sexual misconduct by those in positions of power was not a relic of the past.

EEOC Statistics Reflect #MeToo’s Impact

Against this backdrop, many predicted that allegations of on-the-job sexual misconduct would rise. That hypothesis is no longer mere conjecture. Specifically, in October 2018 the EEOC released a swath of data on workplace sexual harassment claims. The numbers are staggering, and reflect the reality of the #MeToo movement’s impact throughout the country:

• Sexual harassment charges with the EEOC increased by over 12% from the previous calendar year; the first increase in year-to-year harassment complaints in a decade.
• Sexual harassment lawsuits filed by the EEOC increased by 50% over 2017.
• “Reasonable Cause” findings in sexual harassment investigations jumped by 23%.
• Successful EEOC conciliation (or mediation) proceedings rose by 43%.
• EEOC website traffic—specifically the Agency’s sexual harassment page—more than doubled over last year.
• Total recovery for sexual harassment complainants in 2018 jumped to approximately $70 million from $47.5 million in 2017.

The Importance of Workplace Investigations in the Age of #MeToo

For employers, the above-described numbers don’t even begin to cover other ‘unseen’ costs of sexual harassment in the workplace. Indeed, should litigation ensue, discovery and preparing for trial can take a toll on any business’s finances, time, mindshare, and reputation. Accordingly, now more than ever businesses must utilize effective investigative techniques when confronted with allegations of workplace sexual misconduct. By doing this, employers can reduce their company’s exposure to liability while simultaneously creating a respectful, safe work environment for employees that empowers victims to come forward. With that in mind, below are six keys to effective workplace investigations that every employer should bear in mind.

1. Conduct the Investigation

It should go without saying; however, far too often businesses simply fail to seriously investigate allegations of workplace sexual misconduct. But the benefits are too numerous and substantial to ignore. A properly-conducted investigation can reveal the nature and extent of any wrongdoing, result in accountability for individual(s) involved, and foster a safe, inclusive, and healthy work environment for company employees.

Thorough and competent investigations deliver compelling business and financial benefits, especially in the context of litigation. To be blunt, the difference between substantial liability from a sexual harassment complaint and mitigating that risk may turn on whether and how your business conducted an investigation. For example, employees who feel a proper and thorough investigation was conducted are less likely to file a charge of discrimination with the EEOC or other agency. Additionally, in the event of litigation, evidence that your business conducted a thorough investigation into purported misconduct can mitigate the threat of a punitive damages award. What’s more, certain defenses to liability are simply unavailable to employers that fail to conduct adequate investigations. Specifically, the ‘Farager/Ellerth’ defense—expressed first in the cases of Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth—can shield an employer from liability in harassment cases if the defendant/business is found to have conducted a prompt, appropriate investigation of the alleged misconduct.

Ultimately, there is no excuse for failing to conduct an investigation into sexual misconduct allegations in the workplace.

2. Choose an Appropriate Investigator

Choosing the right detective(s) to investigate workplace sexual-misconduct allegations is critical. Most often, employers face three choices when deciding who performs the investigation:

(1) Internal employees/business people;

(2) In-house counsel; or

(3) Outside counsel.

Company Executives should almost never conduct investigations into serious workplace misconduct. Even with the best intentions, results can be disastrous. Specifically, the very executive who spearheads the investigation may become a fact witness subject to questioning at deposition or trial. Worse, the executive may already be a fact witnesses who should be a subject of the underlying investigation. Further, regardless of their connection to the original allegations, corporate officers can be seen as biased towards the employer and against the complainant. In-house lawyers have the benefit of familiarity and experience with the personnel, structure, and policies of the business. But as with corporate officers, in-house counsel may also be viewed as predisposed to an outcome favoring the business. In addition, while in-house counsel may attempt to shield the investigation in privilege, some courts have held that efforts of internal lawyers in this context may be characterized as ‘business,’ rather than legal, advice. In contrast, the ultimate results of an investigation by outside counsel may be far more easily protected—if necessary—by the attorney/client privilege.

3. Draft Policies to Govern Internal Investigations

Effective policies regulating workplace investigations are crucial. And the absence of such procedures increases the risk of an incomplete and poorly-done inquiry that, ultimately, may not withstand later analysis. Specifically, investigative policies serve as training tools for the inexperienced and can provide needed guidance in challenging circumstances. Further, policies can create a solid framework to ensure that all investigations—regardless of the status and position of the accused and the accuser—are done to form; thereby reducing or eliminating the appearance of bias and favoritism. Consequently, company policies governing investigative procedures will prove beneficial in both the short and long term.

4. Begin the Investigation Quickly

Sexual misconduct investigations should begin as soon as reasonably possible after the allegation is reported in order to preserve certain defenses to liability. While no explicit rule for ‘promptness’ exists, courts have often held that an employer’s response should occur within days of receiving notice of the alleged issue. The Ninth Circuit , for example, held that an employer’s response was sufficient when it began an investigation into reported sexual harassment within three days. Conversely, the Southern District of New York held that an investigation that was initiated four weeks after a harassment complaint was untimely. The purpose underlying these response rates is for the company to consider the reported conduct, determine the facts and, where appropriate, take action.

5. Understand and Avoid Retaliation

In this context, it is critical to remind all employees involved in the investigative and disciplinary process not to engage in any act of retaliation against either the accuser or those participating in the investigation. The very same federal and state laws prohibiting the underlying harassment also act to bar unlawful retaliation against individuals participating in the investigative process. The EEOC is particularly cognizant of this, as retaliation claims represented nearly 50% of the agency’s total charges in 2017.

Employers must also understand that actions for retaliation are easy to bring and difficult to dismiss. This is true because the legal ‘test’ for retaliation is much easier for a complainant to pass than those for harassment and discrimination. Specifically, unlike harassment, retaliation claims do not require the employer’s alleged adverse action be directly related to the complainant’s employment (e.g. a wage reduction or a demotion) to be found unlawful. Rather, as the Supreme Court has made clear for years, the retaliatory act need only be ‘adverse’ enough to have “dissuaded a reasonable worker from making or supporting a charge” in order to be found unlawful. This broad, subjective standard makes it profoundly difficult for employer-defendants to dispose of retaliation claims in litigation. Accordingly, businesses must understand what the law on retaliation actually prohibits, and effectively communicate that to all employees involved in the investigative process.

6. Act on the Investigation

While effective and thorough investigations are of critical importance, an inquiry alone is not sufficient to shield a business from liability. It almost goes without saying: if your investigation reveals misconduct, proper action must be taken in response.

Courts have repeatedly upheld this principle. For example, in Fuller v. City of Oakland, the Ninth Circuit explained this axiom, stating, “the fact of an investigation alone” is not sufficient to shield a business because “an investigation is principally a way to determine whether any remedy is needed and cannot substitute for the remedy itself.”

A 2018 result from the Northern District of Texas proves this point. In Holmes v. North Texas Health Care Laundry Cooperative, an employer defendant won summary judgment in a sexual harassment case on a Faragher/Ellerth defense when it demonstrated:

• The alleged harassment was reported and promptly investigated;
• The alleged harassing supervisor was instructed not to come to work pending the investigation; and
• Based on the investigation, the supervisor was ordered to resign or be terminated.

Simply put, if an investigation reveals misconduct, the employer must act accordingly.

[1] Edwards, Stephanie Zacharek, Eliana Dockterman, Haley Sweetland. “TIME Person of the Year 2018: The Silence Breakers“. Time. Retrieved April 14, 2018.