“Weinstein and #Metoo One Year Later: Guidance for the Workplace Investigator”
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“Weinstein and #MeToo One Year Later: Guidance for the Workplace Investigator” Prepared by Deborah Maddux Julie A. Moore Elizabeth Rita Table of Contents I. INTRODUCTION ................................................................................................................... 2 II. THE CHANGING NATURE OF CLAIMS .............................................................................. 4 A. “Long Ago and Far Away… ” -- An Uptick in Old Claims .................................................................... 4 B. Increase in “Superstar Harasser” Claims ............................................................................................ 7 C. “Reverse Discrimination” Claims: The Accused Going on the Offensive ......................................... 13 D. A Wider Array of Conduct .................................................................................................................. 15 E. Gender Identity Claims ...................................................................................................................... 16 III. NEW PRESSURES ON INVESTIGATORS ........................................................................ 19 A. The Need to Understand Crisis Management ................................................................................... 19 B. The Requirement to Be Media Savvy ............................................................................................... 23 C. The Increased Pressure on Timelines .............................................................................................. 24 IV. PRACTICAL REALITIES: POLARIZATION OF MEN AND WOMEN AND DISCRIMINATION CLAIMS ............................................................................................ 25 V. EEOC GUIDANCE AS IT RELATES TO INVESTIGATIONS ............................................. 30 A. “Proactive” and “Global” Interventions May Become the New Standard of Care for Employers in Preventing and Correcting Workplace Harassment .......................................................................... 30 B. “Core Principles” ................................................................................................................................ 30 C. “Promising Practices:” A Guide to Limiting Liability and Reducing Workplace Harassment ............ 30 VI. CHANGES TO THE METHOD OF REPORTING FINDINGS ............................................. 34 VII. BE READY TO DEFEND YOURSELF ................................................................................ 35 VIII. CONCLUSION .................................................................................................................... 36 1 I. INTRODUCTION As we stood in the elevator line following the morning sessions at the 2017 AWI Annual Conference in Marina Del Rey, the ubiquitous background noise of cellphone alerts suddenly hit a frenzied cacophony. The New York Times screamed, “Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades.” And so it began. Since October 5, 2017, we have stood at the precipice of a cultural watershed. Although the #MeToo movement officially “began” in October 2017, the steam behind it had been building for some time. Indeed, since April 2017, the powerful have dropped like flies amidst a barrage of salacious sexual misconduct allegations: For many, self-righteous indignation at the alleged wrongs of those who hold the levers of power can be a delicious indulgence. But, in our roles, we know that a rush to judgment is wrong. For workplace investigators, this watershed moment reminds us of the importance of our roles as independent factfinders. We have reached different conclusions at the end of our investigations. At times, we find that a complaining party’s complaint has merit and wrongdoing likely occurred. At other times, we find that the respondent, more likely than not, did not engage in the complained-of harassment or other misconduct. All the while, we have to do our jobs by insisting on industrial due process for the parties. Bottom line, employers are legally obligated to take seriously and investigate all complaints of sexual harassment. That obligation should not be construed as a ratification, or rejection, of any particular allegation. Taking a complaint seriously, for investigators, means recognizing that the way in which we handle it will change someone’s life. Promptness, thoroughness, and impartiality must, therefore, remain the touchstones of internal investigations. The fairness of an investigation hangs in the balance between efficiency and thoroughness; responding promptly to a complaint does not mean reaching an immediate conclusion. It means doing our jobs as independent investigators by developing and following a strategic plan for assessing the allegations to determine whether they have merit. 2 The #MeToo media narrative is fueled, in part, by a dearth of information about how sexual harassment complaints should be evaluated. There is truth to the public sentiment that powerful men misuse power, but it is only a half-truth. We cannot presume that power is always misused. Nor can we presume that only men engage in misconduct. Women do too. It is our job, as trained, objective investigators, to insist that the distinction between “allegation” and “substantiated allegation” not be blurred. Consequences must be justified by dispassionate factual analysis. If this is the dawning of the age of accountability, we will be held accountable for casting equitable judgments. Therefore, for investigators, the #MeToo movement has changed the conversation and the narrative. It is imperative that we think about the context of our work, the process, the content, the urgency and, above all, the seriousness of what we do. And, like most things these days, there is an element of politics. An interesting March 26-31, 2018 survey by the Bucknell Institute for Public Policy / You Gov showed that having a favorable impression of the #MeToo movement was split along party lines. It varied by gender too. While overall 41% of the 1,000 respondents reported having a favorable impression of the movement, 21% had an unfavorable (and 38% expressed no opinion). A whopping 71% of Democratic women, as opposed to 20% of Republican women, thought it was a favorable development. Forty-five (45%) of Republican men -- and only 8% of Democratic men -- thought the movement was unfavorable. As investigators, we must be alert to these divergent views of the #MeToo movement. We also must be vigilant about the changing nature of complaints. As addressed in Section II, below, we have already started seeing complaints about alleged inappropriate sexual conduct occurring twenty (20) years ago or more. Other new issues, such as gender identity harassment, are being raised. The claims against the so-called “superstar harassers,” often C-suite executives, are increasing as employees are more emboldened to speak up, often with the support of counsel. Bullying claims seem to be on the rise as well, as employees are no longer willing to tolerate other forms of bad behavior, even if not unlawful. The accused are speaking up too, filing legal claims when they believe they are treated unfairly. We expect to see more of this pushback from employees who perceive a misuse of the press/social media megaphone and unsubstantiated claims.1 As investigators, we must be prepared to handle these complexities, which invites a conversation among us. Additionally, with the heighted scrutiny of our work that comes with the #MeToo movement, we now face new pressures. As addressed in Section III, below, we need to understand crisis management, and how that may impact the timeline of an investigation. Investigators also must be prepared to handle potential interactions with the press. While some employers are retaining public relations firms at the first notice that their chief executive has been accused of sexual harassment, others are asking the outside investigator to field questions. And respondents are hiring counsel more than before to protect their interests and reputation. That, in turn, means the investigator 1 The New Yorker, https://www.newyorker.com/culture/culture-desk/the-rising-pressure-of-the-metoo- backlash. 3 must be thinking ahead and considering these issues as the investigation strategy is being developed. In Section IV, we address how the #MeToo movement has led to heighted polarity between men and women in the workplace. How does that impact gender bias claims? What about a male manager’s fear about one-on-one meetings with female subordinates? Does that justify differing treatment between male and female workers? What is the investigator’s role in addressing this? This is another issue that invites our conversation and consideration. Another element vying for our attention is the new EEOC Guidance. As addressed in Section V, the EEOC has identified factors that address the rise in workplace sexual harassment. The Guidance also includes specific directions for employers and investigators. One direction is that the complaint processes must be fully resourced, while another is that a written report is expected. The manner in which we report our investigative findings is also changing, as highlighted in Section VI. Issues here include the push for more transparency, particularly in the public context, about investigative conclusions. Some employers are asking for abbreviated or summary reports, foregoing the traditional lengthy report with the full factual background and analysis. What about