INVESTIGATING #METOO COMPLAINTS WITHOUT FEAR

Approach

A primary concern of security professionals tasked to undertake an investigation arising from a #MeToo complaint is ensuring fairness to all parties. To address that concern many have learned to carefully articulate their investigations’ objectives and seek the assistance of others in the fact-finding process. Security professionals that recognize these insights are more confident, more easily build trust, and help create a better workplace for everyone.

It is difficult to be anywhere and not see or hear another report involving allegations of sexual depravity. Most of the reports involve what had appeared to be respectable, middle-aged men who allegedly used their power and influence to dominate and ultimately sexually assault vulnerable women. When true, the events behind these stories leave the victims and their families horribly scarred, and often damaged for life. And although our system of justice has meted out jail-time and awards totaling hundreds of millions of dollars to the victims, everyone knows no amount of punishment or money can return one’s dignity or self-respect. Recognizing such, many victims have turned to Twitter to express their grief and expose their alleged abusers. Resultantly, few have not seen or heard of the #MeToo hashtag. The movement has become a worldwide phenomenon and the resultant impact has put employers of every stripe on notice. The world is restlessly listening and awaiting a response.

Among other things, the #MeToo movement has transformed workplace relationships and the way we think of those around us. Today, many of what were once considered acceptable workplace behaviors are now considered acts of disrespect and/or aggression. Shaking hands, standing while another is sitting, complementing one for their appearance, or simply asking another to join one for lunch can now be perceived acts of aggression or hostile behavior. It is confusing and seemingly unfair. It has forced changes in workplace behavior and policy-making.

In the United States, the federal government’s Equal Employment Opportunity Commission has not been silent on the topic. Recently, Commissioner, Chai Feldblum publicly offered three overarching recommendations to employers attending an Ogletree Deakins Workplace Strategies conference:

  • Change workplace culture
  • Hold people accountable
  • Have the right policies, procedures and training

Were it only that easy. Seasoned security professionals, like their Human Resources counterparts, know the problem requires more than tweaking policies, declaratory proclamations, and swift discipline. Experienced professionals know that workplace behavior is modified and cultures are changed when allegations of misconduct are taken seriously and investigated properly. Together, these activities buttress what ethics and compliance experts identify as the organization’s compliance regime. That regime when fair and disciplined, and properly paired with sound policies, clear expectations and leadership by example, form the foundation of the organization’s culture and ultimately, its reputation and identity.

Recognizing such, organizations of all sizes are increasingly turning to security professionals to assist HR conduct internal investigations or conduct them in their place. But successful workplace investigations are complex undertakings. They are time consuming and fraught with enormous potential for legal liability. When done properly, they combine an intricate mixture of skill, experience and patience. Those who attempt them without an understanding of their fundamentals are recklessly naive. Workplace investigations can also be expensive.

Today’s competitive world requires organizations of all sizes, both public and private to manage their resources carefully. An improperly conducted workplace investigation can be ruinous and destroy the careers of everyone who touches it. Experienced investigators know few workplace activities invoke so much risk and at the same time, so much opportunity.

Experienced investigators also know successful investigations often rely on the use of teams. In #MeToo investigations the typical team includes:

  • Fact-finder(s)
  • Advisors
  • Decision-makers

The fact-finder is the information gatherer and takes direction from the appointed advisor(s). He or she pursues the investigation’s objective be means of thoughtful and deliberate fact-finding. Their tasks include the gathering and proper preservation of physical, electronic and testimonial evidence. Their results are typically packaged in a formal report and ultimately provided to the decision maker by way of the advisor. Under prefect circumstances, that advisor is legal counsel. Thus, the fact-finder’s report can be designated attorney work product and shielded against unwanted discovery or disclosure. The practice is not nefarious. It is legal and proper and often in the best interest of all parties.

Good investigators also know their principal purpose is objective fact-finding. Thus, it is necessary to be fair, impartial, thorough and certainly purposeful. Then to fulfill the varied objectives of the assigned investigation, the effective fact-finder must have a process. Remarkably however, many fact-finders (and decision-makers) regardless of their level of experience or training have little or no process. Their approaches are varied as are their results. Lacking an effective process, fact-finders often spend more time and resources than necessary, produce inconsistent results, and create unnecessary liabilities for those they serve. No investigation, regardless of its objectives or scope can be successful if not properly engineered and driven by process.

In order for the results of one’s #MeToo investigation to be useful, it must also have meaningful and well-defined objectives, be properly and lawfully executed, be fair and impartial, and the results accurately documented and communicated. To achieve maximum efficiency, they must unfold incrementally and progressively in distinct phases. Each progressive phase should be engineered to build on the phase that preceded it. Generally, #MeToo investigations include these phases:

1.    Assessment

2.    Preparation and planning

3.    Information and evidence gathering, and traditional fact-finding, including the interviewing of the complainant(s); and

4.    Verification and analysis which invariably includes the interviewing of the alleged wrong-doer

Decision-making, the disbursement of disciplinary and/or corrective action, and decisions regarding prevention and education are left to the organizations decision-makers or HR.

Due to the lack of resources and experience, many fact-finders transfix on the third phase, that of information gathering and fact-finding, and the interviewing of the accused. Unwittingly, they conclude their investigation after amassing an impressive collection of related facts, evidence and information. Though these elements are obviously important, what is overlooked denies those to whom they report (either an advisor or decision-maker), a complete result and a thorough understanding of the very matter that precipitated the effort. By imposing process to otherwise disorganized, but seemingly important activities, the fact-finder creates the structure necessary to be uniquely effective. That process allows the fact-finder to transcend the unsophisticated and often tarnished image of corporate gumshoe and elevates him or her to the professional standing of an expert investigator.

Fact-finders should never play the role of decision-maker. To do so is unfair and creates the appearance of impartiality. If one were accused of a #MeToo allegation, who would wish the fact-finder to also be the decision-maker? HR professionals sadly make this mistake frequently. In many organizations, HR is routinely responsible for all internal investigations and either decides the appropriate discipline or makes recommendations regarding such to the decision-makers, whoever they may be. The criminal justice equivalent would be law enforcement deciding the punishment of those they arrest.

Like most effective processes, the fact-finder’s effort should also produce measurable results. While the output is often measured by the organization’s decision-makers in terms of the actionable evidence accumulated, the first and most immediate measurement ought to be return on investment, or ROI. Generally, properly engineered and executed investigation produce tangible, measurable results such as the recovery of stolen property or money; the termination of dishonest employees or vendors; and of course, successful prosecution. Also possible are civil recovery, restitution, damage awards and successful insurance claims.

However, when investigating a #MeToo allegations the achievement and recognition of measurable ROI is more difficult. But process driven investigations enable the ability to generate statistical results the fact-finder can use over time to measure their effectiveness and identify opportunities for process improvement. The ASIS Investigations Standard (ANSI/ASIS INV.1-2015) identifies this methodology as the Plan Do Check Act model, or simply PDCA. When properly used, PDCA provides a repeatable and scalable framework for the conduct of one’s #MeToo investigations. Without process and structure, the fact-finder has no means to measure results and show value to their customer. Even worse, the process exposes itself and its investigators to claims of bias, ineptitude and discrimination.

But workplace investigations are more than just processes. They typically involve the convergence of many disciplines and an assortment of uncommon skills. More often than not, the #MeToo investigator must have a comprehensive understanding of criminal, civil and employment law. Resultantly, workplace investigations are fraught with labiality. Internal investigations of even the simplest variety are not for the faint hearted. By definition they involve the investigation of people who have a relationship with the organization. Most often those people are employees. They are insiders. They are people with whom the organization employs or does business. As such, they have special rights, expectations and very often they carry a sense of entitlement and inflated importance. These considerations significantly add to the complexity of the fact-finding process and the manner in which the subject may respond to the investigation’s findings and management’s corrective actions. Regardless, the path is filled with legal obstacles and challenges. For the unknowledgeable and unprepared employer, it is a virtual legal minefield. On the other hand, the totality of these complexities gives the properly prepared and equipped employer a decisive competitive advantage. The employer that is able to efficiently bring an end to a workplace harassment, discrimination or a toxic workplace without litigation or a public relations debacle has a significant competitive advantage over the employer that cannot. Thus, a skilled and savvy investigator can be priceless.

Common Mistakes

1.    Using law enforcement vernacular instead of the language of business. Good investigators use the language of their internal customer;

2.    Seeking employee prosecution as an objective. The decision to prosecute should be made for business reasons only;

3.    Bending the rules. Rules, policies, and laws provide society and the organizations within structure and order. The failure to obey them is a disservice and unprofessional;

4.    Interviewing the accused before properly interviewing the accuser and documenting his or her allegations;

5.    Permitting or insisting the fact-finder make recommendations regarding discipline and/or corrective action. Leave the decision-making to the decision-makers.