By: Jackie Ford

Sexual harassment is illegal. It has been illegal for a long time — over 40 years, in fact. It is, in other words, not new. What is new, however, is the sheer volume of harassment allegations now being made in all corners of the country and at all types of public and private workplaces. The #MeToo movement has encouraged thousands of women to share their stories of harassment and sexual assault, and to follow up with legal actions against alleged wrongdoers. Employers and their counsel should take a moment, take a breath, update their harassment prevention policies, conduct meaningful training, and be prepared to respond quickly and thoroughly to any and all allegations of sexual harassment.

Once an employer learns of an accusation of harassment involving one of its employees, it should structure and launch an effective investigation. Decisions made at the beginning of the investigation process can have profound implications for its ending.

Best Practices for Conducting a Harassment Investigation

  1. Define the purpose and scope of the investigation. Obvious as it may seem, some investigations suffer from a lack of a clearly and specifically articulated purpose. Writing down that purpose helps the investigator prioritize the most relevant issues and steer clear of tangential ones.
  2. Ensure that the investigator understands what constitutes “harassment.”As the case law demonstrates, “voluntary” sexual behavior may still constitute illegal sexual harassment. The investigator should understand these distinctions so as not to overlook potentially relevant information regarding “consensual” behavior.
  3. Make a conscious effort to avoid implicit or unconscious bias. Various forms of unconscious bias may infect an otherwise good-faith investigation, resulting in an inaccurate set of conclusions that may not withstand later scrutiny. As just one example, an investigator may be “primed” by those directing the process to reach a foregone conclusion, perhaps to protect an accused executive who is otherwise valuable to the company or to confirm an existing narrative about an accuser who is “always complaining about something.” In other cases, bias based on witnesses’ race, religion, class or other factors may unconsciously play into an investigator’s credibility determinations. Recognizing the potential for these forms of bias, and taking deliberate steps to avoid them, increases the likelihood that the investigation will provide the employer with the kind of accurate and objective information it needs in order to assess its legal situation and take any appropriate actions.
  4. Consider the use of an outside investigator. Harassment investigations often require review of extremely personal, sensitive, and embarrassing information. If the investigator works with or otherwise knows the subjects of the information, seeing that type of information about a colleague may create long-term problems once the investigation is concluded. While members of a company’s human resources or legal departments may be well qualified to investigate most matters, a harassment investigation may impair the investigator’s future work with the accused or other witnesses; once seen, flirty emails and racy text messages may be impossible for the investigator to forget. An outside investigator unconcerned about future collegiality may be able to conduct a more objective investigation as a result.
  5. To privilege or not to privilege? Lawyers typically think of the attorney-client privilege as a universally good thing — that it is always better to have a client’s communications protected by the privilege than not protected by the privilege. While this is certainly true in most cases, it is not always applicable in a harassment investigation. If, for example, the investigation itself is going to be Exhibit A in the employer’s investigation-based affirmative defense to a harassment claim, the investigation may need to be designed less for the current need for attorney-client privilege than for the future option of disclosure. Even if the investigation is to be conducted under the protections of the privilege, the employer may want to use different counsel for the investigation itself than it would otherwise turn to for day-to-day consultation. By doing so, the employer avoids having its long-term counsel become a potential witness in any ensuing litigation in which the investigation itself becomes an issue.
  6. Establish a single point of contact. If the investigation is to be privileged it is important to instruct the client in steps necessary to protect that privilege. Establishing a single point of contact to direct the investigation and confer with the investigator helps prevent privileged information being shared with anyone outside the scope of the privilege. To that end, group emails should also be avoided, as they are easily shared (intentionally or otherwise) with individuals outside the privilege.
  7. Do an engagement letter. Even if the outside investigator has done prior work for the company, the new investigation may merit a separate engagement letter. Among other things, the engagement letter defines the purpose and scope of the project, confirms whether the investigation is being done at the request or direction of counsel (establishing its degree of intended privilege protection), specifies a reporting structure, and generally describes the anticipated work product. The process of writing such a letter also forces the parties to specify what the investigation should be about, and how they plan to handle its results.

Harassment investigations often combine factual findings and legal analysis. Determining whether specific behavior occurred is a factual question; determining the legal exposure resulting from that behavior, or from the employer’s response to it, is, for the most part, a legal question. Regardless of how the investigation itself is conducted, counsel should be consulted to help assess the investigation’s outcomes and next steps. While harassment itself certainly it not new, the current environment casts a renewed light on the importance of conducting careful and thoughtful investigations when harassment allegations are made.

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