“Weinstein and #Metoo One Year Later: Guidance for the Workplace Investigator”

“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 the rise of asking for verbal, not written, reports? These are some of the changes we are seeing.

Finally, our work will certainly be under greater scrutiny as the first waves of #MeToo litigation gain momentum and work their way through the court systems. In Section VII, we address the steps that investigators should take to prepare themselves – and protect themselves – in this new climate.

II. THE CHANGING NATURE OF CLAIMS

One profound way in which the sexual harassment landscape has begun to change is the very nature of investigated claims. We have seen new kinds of unlawful conduct claims and a renewed emphasis on some old standbys. Workplace investigators must be attuned to these new issues or they may miss crucial evidence that could later be important to the findings. We highlight next some of these new trends.

A. “Long Ago and Far Away… ” -- An Uptick in Old Claims

Complainants, many whom have remained silent for years, sometimes decades, are becoming more emboldened to raise claims.

In the past, employers might have been tempted to ignore such claims, but no longer. Given the trend to address old or stale claims, investigators should understand the underpinnings of traditional statutes of limitations and be prepared to discuss with the client the difficulties of investigating those claims and the scope of each investigation.

There are many reasons that the law imposes statutes of limitations in sexual harassment and/or sexual assault claims, which require plaintiffs to bring cases forward

4 with the EEOC / a state fair employment practices agency / court within prescribed time periods. Limitations period are meant to:

 Mitigate the risk of unreliable witness testimony.2  Strike a reasonable balance between permitting redress of an ongoing wrong versus imposing liability for conduct that occurred long ago.3  Place a reasonable limit on legal relief while allowing evidence to be considered in cases of on-going, continuing violations.4  Recognize the difficulty in accurately judging cases when there is a “tremendous distance of time.”5

While the legal limitations periods may preclude a plaintiff from filing a lawsuit, they do not preclude an employee from raising a complaint in the workplace. Today employers are more likely to investigate old claims, even with the challenges that they bring. While they are more difficult to investigate, the task is to try.

Potentially unreliable evidence can be a challenge when assessing old claims. We all know that memories fade. Witnesses can forget what happened a week ago, let alone years ago. As U.S. District Court Judge Mark Bennett wrote, “Memories are so malleable, numerous, diverse, and innocuous that post-event information alters them, at

2 “Statutes of limitation were put in place in part to discourage convictions based on “unreliable witness testimony,” including memories of events that occurred years in the past.” Hearing on Implementation of the Sexual Assault Survivors’ Bill of Rights and Clearing the DNA Backlog Written Testimony of Rebecca O’Connor of the Rape, Abuse & Incest National Network (RAINN) Before the U.S. House Judiciary Committee (2018). https://judiciary.house.gov/wp-content/uploads/2018/02/OConnor-Testimony-2.27.2018.pdf.

3 Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d 164, 168 (1995). Questioned by the United States Supreme Court in AMTRAK v. Morgan, 536 U.S. 101 (2002), which limited the way continuing violation claims may be made, specifically around pay discrimination: “We hold that the statute [Title VII] precludes recovery for discrete acts of discrimination of retaliation that occur outside the statutory time period. We also hold that consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory period. The application of equitable doctrines, however, may either limit or toll the time period within which an employee must file a charge.” Morgan, 536 U.S. 101 (2002). These were both defining cases for the “continuing violation doctrine.”

4 “The time provisions of Title VII are subject to equitable modification.” Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 475 (1976). “A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.” United Air Lines v. Evans, 431 U.S. 553, 558 (1977).

5 “Why is there a statute of limitations? Probably because the reliability of such charges, such grievous charges as these, cannot be accurately judged at a tremendous distance from the time in which they were alleged to occur.” Senator Simpson, 141 Cong Rec S 11127 (1995).

5 times in very dramatic ways. Memories can be distorted, contaminated, and even, with modest cues, falsely imagined, even in good faith.”6

Another challenge is that evidence can get lost over time. A complainant may claim that text messages would corroborate his or her complaint but, if those messages were on an older generation iPhone, they may well be lost as a result of two (2) or three (3) upgrades.

When faced with fading memories and/or lost evidence, investigators must nonetheless collect the information that is available, evaluate the reliability of the information and credibility of witnesses, and make findings.

Finally, the investigator must carefully evaluate how to weigh evidence over time. For instance, should you consider conduct that occurred at a prior employer? Or conduct that occurred twenty (20) years ago? Where should it end?

The complaints against Senator Al Franken provide a good example. Franken was a United States Senator from Minnesota. In 2017, Franken was accused of sexual harassment of several women, including forcibly kissing and groping. One woman alleged that he forcibly kissed her on a 2006 USO tour during a rehearsal for a skit. Franken was also photographed appearing to place his hands above or on the woman’s breasts while she was asleep on an aircraft during the same tour.

Faced with the allegations, Franken immediately apologized. But it didn’t end there. Other women came forward and stated that Franken had touched them or tried to kiss them too. Franken did not recall these instances but apologized nonetheless.

The complaints were tendered to the Senate Ethics Committee for review. Franken resigned in December of 2017, stating, “I know in my heart, nothing that I have done as a Senator, nothing, has brought dishonor on this institution, and I am confident that the Ethics Committee would agree.” Indeed, the conduct had occurred over a decade prior, before Franken took public office, when his role was a comedian, not a public servant. Think about how you might have weighed these factors when investigating the claims against Franken.

6 Hon. Mark W. Bennett, “Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know About Cognitive Psychology and Witness Credibility” AMERICAN UNIVERSITY LAW REVIEW (Jan. 29, 2015).

6 B. Increase in “Superstar Harasser” Claims

The typical workplace may not have the allure and mystique of Hollywood or the United States Senate, but the same rules often apply. Harassment by superstar sales leaders, C-suite executives, elected officials, and other too-big-to-confront individuals causes big problems for any workplace. Even a single accusation of sexual harassment that is not properly addressed can be devastating for the employee affected and the employer. Some statistics suggest that a whopping 70% of employees who are harassed at work never report it.7 And this figure is even higher when the harasser is a workplace “superstar.”

In the EEOC’s Select Task Force Report (“EEOC Report”),8 the Commission explicitly recognized this problem:

Employers may find themselves in a position where the harasser is a workplace "superstar." By superstar, think of the high-earning trader at an investment bank, the law firm partner who brings in lucrative clients, or the renowned professor or surgeon. Some of these individuals, as with any employee, may be as likely to engage in harassment as others. Often, however, superstars are privileged with higher income, better accommodations, and different expectations. That privilege can lead to a self-view that they are above the rules, which can foster mistreatment. Psychologists have detailed how power can make an individual feel uninhibited and thus more likely to engage in inappropriate behaviors. In short, superstar status can be a breeding ground for harassment.

When the superstar misbehaves, employers may perceive themselves in a quandary. They may be tempted to ignore the misconduct

7 Stefanie K. Johnson, Jessica Kirk and Ksenia Keplinger, Why We Fail to Report Sexual Harassment, HARVARD BUSINESS REVIEW (Oct. 4, 2016).

8EEOC Select Task Force on the Study of Harassment (“EEOC Report”) (June 2016); available at: https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm. In January 2015, the EEOC formed a Select Task Force to investigate the scope of sexual harassment and determine how to better correct and prevent it. The Task Force, comprised of sixteen (16) individuals representing both plaintiff and defense side attorneys, social science experts, advocates, and labor organizers, issued a report of its findings in June 2016. In the EEOC Report, the Task Force found that current prevention and correction methods for sexual harassment are ineffective, and the Task Force proposed several remedies. The Task Force defined harassment to include behaviors that may evolve into legally-actionable workplace harassment if left unchecked. As used in the EEOC Report, “harassment” means “unwelcome or offensive conduct in the workplace that: (a) is based on sex (including sexual orientation, pregnancy, and gender identity), race, color, national origin, religion, age, disability, and/or genetic information; and (b) is detrimental to an employee’s work performance, professional advancement, and/or mental health. This includes, but is not limited to, offensive jokes, slurs, epithets or name calling, undue attention, physical assaults or threats, unwelcome touching or contact, intimidation, ridicule or mockery, insults or put-downs, constant or unwelcome questions about an individual’s identity, and offensive objects or pictures.”

7 because, the thinking goes, losing the superstar would be too costly. They may wager that the likelihood or cost of a complaint of misbehavior is relatively low and outweighed by the superstar's productivity. Some employers may even use this type of rationale to cover or retaliate for a harasser.

Employers should avoid the trap of binary thinking that weighs the productivity of a harasser solely against the costs of his or her being reported. As a recent Harvard Business School study found, the profit consequences of so-called "toxic workers" – specifically including those who are "top performers" – is a net negative. Analyzing data on 11 global companies and 58,542 hourly workers, the researchers found that roughly one (1) in 20 workers was fired for egregious company policy violations, such as sexual harassment. Avoiding these toxic workers, they found, can save a company more than twice as much as the increased output generated by a top performer. As a result, the study urged employers to "consider toxic and productivity outcomes together rather than relying on productivity alone as the criterion of a good hire." No matter who the harasser is, the negative effects of harassment can cause serious damage to a business. Indeed, the reputational costs alone can have serious consequences, particularly where it is revealed that managers for years "looked the other way" at a so-called "superstar" harasser.

In Weinstein’s case, he got away with sexual harassment for decades because employees were intimidated or afraid to make a case against him.9

Dynamic and powerful leaders are everywhere. Their influence, coupled with a sometimes lack of real oversight in many corporate environments, is a powder keg for employers in the post-Weinstein era. But now complainants are coming forward, and they are using every tool at their disposal – including loud social media campaigns. And they are being believed like never before. This means that conduct that may have been tolerated with gritted teeth, swept under the carpet, or quietly paid off in the past is going to see the light of day.

How does an investigator handle the pressures and intricacies of investigating the “superstar harasser?” A few tips we have found helpful include:

 Ask yourself if you are the right person for the job – and then ask yourself this question again!

Handling allegations against a superstar harasser takes the right investigator. It must be someone who will not be intimidated by the respondent’s position, power and

9 Danielle Paquette, Not Just Harvey Weinstein: The Depressing Truth about Sexual Harassment in America, THE WASHINGTON POST WONKBLOG (October 12, 2017); available at: https://www.washingtonpost.com/news/wonk/wp/2017/10/12/not-just-harvey-weinstein-the-depressing- truth-about-sexual-harassment-in-america/?utm_term=.3d5c409816eb.

8 prestige; someone who will ask the right, and often tough, questions and remain committed to discovering the truth; someone who can identify the issues and communicate appropriately during the investigation so that counsel and the corporation can ensure that the investigation is on the right course; and someone who will make the factual conclusions that must be reached, after weighing and analyzing the evidence, even if that creates problems and potential liability for the company.

Importantly, the chosen investigator must also be able to testify credibly about the investigation. Do you have experience in depositions / trials and are you comfortable playing the witness? These are important questions you need to answer before you proceed with such an assignment. The stakes are higher than ever before.

 Who is the client and who will be the “point person” for your work?

In the case of the superstar harasser, make sure you know up front both who the point person and the client is. Will it be the Board of Directors? A special investigations subcommittee of the Board? Will it be a parent corporation? Outside counsel? If your client does not raise these issues with you, be sure to ask. And then be sure your engagement letter is explicit about these issues.

 Expect to interview the respondent with a lawyer present.

If you have not done a respondent interview with counsel present, seek some advice from colleagues who have and know what the guard rails are around that attorney’s presence and participation in the interview. Certainly, counsel should not interfere with the fact gathering and should not “testify” on behalf of their client. They cannot create unnecessary delay in scheduling because of their other commitments, potentially thwarting the “promptness” of your investigation. They cannot place unreasonable conditions on the interview, such as time or setting.

That said, do not be intimidated. In our experience, great plaintiff’s lawyers can help the process along as they are usually also interested in finding out more about their case. It is rare, in our experience, that counsel’s presence at the interview has interfered with or stymied the process.

 Expect witnesses to be very concerned about retaliation and impact on their career.

Witnesses are often more reluctant to get involved in investigations into superstar harassers than “ordinary” investigations. The reality is that investigations put the innocent bystander in a precarious position. Witnesses, are required as part of their job to cooperate honestly and openly in an investigative interview. Harassment policies, for example, often have an explicit cooperation clause that addresses the duty to cooperate.

Despite these obligations, witnesses are often fully aware of the damage they can cause the organization if they have information that is harmful to the executive or other

9 top performer. Further, they are often cognizant of the damage they could inflict on their own career, should they provide honest responses and then experience retaliation.

Witnesses know that retaliation can be overt . . . or not. Assurances by the corporation of no-retaliation policies are often viewed with skepticism. Employees know the corporation’s ability to protect them is not perfect, despite verbal and/or written promises about it. Faced with the reality of whether they can continue to pay the mortgage on a home and their children’s college tuition, witnesses often understandably perceive the process with distrust and trepidation.

Retaliation is real. Take the well-publicized Ashley Judd lawsuit as a case in point. In her case, filed on April 30, 2018, Judd alleges that Harvey Weinstein denigrated her to Director Peter Jackson, who chose not to cast her in the Lord of the Rings trilogy as a direct result.10 According to Jackson, Weinstein told him that Judd was “a nightmare” who was to be avoided “at all costs.” Judd contends that Weinstein did this because she had not submitted to his sexual advances and that this harmed her career which, given the Lord of the Rings trilogy’s success, is a compelling argument.

As the Ashley Judd litigation makes clear, retaliation in the world after #MeToo continues to be a very real problem. Just take a look at the multi-million dollar verdicts in California in 2017 and early 2018 to illustrate the point:

• $25,142,120 – Whistleblower retaliation (Babyak v. Cardiovascular Systems, 4/27/17) • $17,394,972 – Sexual harassment and retaliation (Pearl v. City of Los Angeles, 6/29/17) • $16,673,514 – Race discrimination, wrongful termination (Moland v. McWane, Inc. et al., 8/25/17) • $15,544,413 – Sexual harassment, retaliation (Santos-Vidal v. Hongye LLC, 9/20/17) • $13,011,671 – Gender discrimination, retaliation (Pinter-Brown v. UC Regents, 2/15/18)

Confronting misbehavior is always hard – exponentially so when the person accused is a powerful or important figure in the workplace. If employers think that the Hollywood “casting couch” is a phenomenon limited to glamorous industries like film, they need to think again. As the EEOC points out in its Task Force report, while many women endure unwanted advances at work, only around 30% of employees who have experienced harassment ever report it to anyone at work, and “only a tiny fraction – between 6 and 13 percent – ever lodge a formal complaint.”11 Why?

10 Brooks Barnes, Ashley Judd Sues Harvey Weinstein, Saying He Harmed Her Career (April 30, 2018) THE NEW YORK TIMES, available at: https://www.nytimes.com/2018/04/30/business/media/ashley-judd- harvey-weinstein-lawsuit.html. 11Paquette, supra note 9 (citing EEOC Report).

10 It does not take a degree in psychology, or even a law degree, to figure out why employees do not report harassment: fear of retaliation. According to an article in the Washington Post:

[Employees] often don’t want to seem dramatic. They’re nervous people won’t believe them. They fear being judged or barred from opportunities or fired. They choose to brush it away, though harassment is linked to depression and anxiety — forces that can steer a promising career into paralysis.

Even A-listers have opted to keep quiet. Take Gwyneth Paltrow, Angelina Jolie and Ashley Judd — all actresses that started in Hollywood with money and family connections and still waited years to speak out against Harvey Weinstein.

“That primarily has to do with fear,” said Lilia Cortina, a psychology professor and sexual harassment researcher at the University of Michigan. “There’s fear of retaliation. Fear of being a troublemaker. Fear of the reporting process.”12

Employees across all industries generally do not report sexual harassment, not to Human Resources, not to their supervisor, not to anyone in a position to do something about it. The EEOC Report found that many more individuals, regardless of gender, do not report harassment than do. Most avoid the harassing party, others deny or minimize the events, and still others acknowledge it, but attempt to turn the other cheek. Most do not confront the harasser and, instead, seek support from friends or family.

Many employees do not report harassment or other misconduct because they fear that they will not be believed, that the employer will not do anything about their claim, or that they will be ostracized or retaliated against by the employer, with “[f]ear of retaliation [being] the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.”13 And the statistics confirm these fears. For example, one study found that 75% of the employees who complained about workplace mistreatment experienced retaliation. Other studies found that individuals who complain about sexual harassment often experience hostility or reprisals after reporting, and their complaint is trivialized. The EEOC Report concludes that deciding not to report may be the most “reasonable” decision a person can make. Moreover, from a litigation perspective, retaliation claims are the most commonly filed employment related claims, according to the EEOC.14

12 Paquette, supra note 9.

13 Crawford v. Metropolitan Government of Nashville and Davidson County Tennessee, 555 U.S. 271, 279 (2009).

14 See EEOC Statitics, available www.eeoc.gov/eeoc/newsroom/release/1-18-17a.cfm.

11 In its 2016 Enforcement Guidance on Retaliation and Related Issues,15 the EEOC provides important takeaways on “protected” activities, causation and “adverse actions,” which incidentally are much broader in the retaliation context than in the discrimination area.16 According to the Supreme Court, any action that could deter a reasonable worker from coming forward could be considered unlawful retaliation.17 Moreover, not only complainants are protected here. This anti-retaliation protection can also extend to people who participated in the investigation in the workplace. The Supreme Court has held that an employee can state a claim for retaliation under Title VII based on answers given in an investigation of alleged harassment.18 This is because Title VII protects employees who “oppose” an illegal practice, and opposition can include providing answers to questions in a harassment investigation.

Given this backdrop, investigators must be cognizant of retaliation fears by complainant parties and witnesses. To manage this, there must be a careful assessment of who communicates what to the witnesses. The witness needs to have some introduction to the investigative process. You will have to be prepared to overcome a witness’ fear of retaliation. Robust policies and training will help. But that does not help the investigator when the employer was not proactive and forward thinking in its preventative measures. Employees who work in a respectful work environment will understand and recognize with less skepticism when the employer and investigator pledge no retaliation.

15 EEOC, Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016); available at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm.

16 There are some important takeaways in the Guidance, including:

“Participation” can include being part of an internal investigation. Traditionally, a person had to participate in a formal proceeding, trial, hearing or investigation to “participate” in the EEOC process. The new Guidance makes clear that a person can participate in an employer’s internal investigation and be protected from retaliation for that participation. Moreover, the person need not provide truthful testimony or have any belief that the investigation is looking into unlawful activity. Simple participation is all that is required.

“Opposition” must be reasonable and in good faith to be protected. In contrast to protected participation, “opposition” has to be based on a good-faith belief that the employer’s action was unlawful, and the opposition must be “reasonable.” This means that an employee’s right to oppose something is weighed against the employer’s right to have a safe and productive work environment.

Adverse action is a broad concept for the EEOC. The Guidance contains an expansive definition of “adverse” action that goes far beyond the typical demotion / termination / suspension criteria we typically think of. The Guidance includes a laundry list of potentially adverse actions that include threats, warnings, poor evaluations, threats to immigration status and transfers as potentially enough to constitute adverse action.

The causation standard is “but for” for both private and state employers facing a retaliation allegation. After receiving critical feedback on the initial draft Guidance, which suggested a more lenient causation standard, the EEOC revised the Guidance to clarify that causation in retaliation claims against private employers and state employers must satisfy a but-for causation standard.

17 Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006).

18 Crawford v. Metropolitan Government of Nashville and Davidson County Tennessee, 555 U.S. 271 (2009).

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In the end, however, witnesses must be told of their rights – protection from retaliation – and, their obligation – to report any concerns of retaliation - so the employer can timely respond.

 Determine where witnesses should be interviewed

The corporate office executive suite is not the ideal location for witness interviews to take place because, even if the respondent him or herself is not present, the physical space may feel unsafe to a person who is going to be asked to provide a statement about an office superstar. Does your client share space in a building with an office on another floor? Is there a hotel nearby where you can rent a conference room for the day? Think through your options carefully before beginning.

It is important to think through in advance a place where distractions are minimized. As always, the focus should be on ensuring that the witness feels as comfortable as possible sharing information. The process is uncomfortable enough.

C. “Reverse Discrimination” Claims: The Accused Going on the Offensive

The recent stories about ill-behaved media and Hollywood giants represent a potential shift in initial presumptions surrounding a complaining employee’s credibility. The women in the Weinstein chronicles were more often believed from the outset – rather than doubted. There is a push to act now and investigate later because “we have to believe accusers.”19

And as social media campaigns like #MeToo promote awareness and recognition of the prevalence of harassment and sexual misconduct in the workplace, recipients of harassment may be more willing to come forward and report perceived harassment. We have seen a rise in workplace complaints of sexual harassment in the past twelve (12) months in our practices.

What we have also seen is a big shift in the employer’s reaction to these events. In very recent history, it was not uncommon for an employer to protect the harasser and pay off the recipient of the behavior. Indeed, as recently as September 2016, Fox News reportedly spent $20 million to settle Gretchen Carlson’s lawsuit against Roger Ailes. And, after paying a reported $32 million in January 2017 to settle claims against Bill O’Reilly, Fox’s initial reaction was to renew his contract with the network the following month. And, even after Fox fired O’Reilly after public reports of the sexual harassment settlements triggered an advertiser boycott, O’Reilly was invited to appear on Fox News’ “Hannity” in September 2017 to promote his new book.

19 ABC News, https://abcnews.go.com/Entertainment/innocent-proven-guilty-apply-hollywood- misconduct/story?id=51646170; Newsweek, http://www.newsweek.com/metoo-sexual-assault-sexual- harassment-poll-npr-believe-victims-accusers-749374; The Atlantic, https://www.theatlantic.com/politics/archive/2017/12/i-believe-frankens-accusers-because-he-groped-me- too/547691/.

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But this has resulted in backlash from accused individuals who feel they did not get “a fair shake.”20 Think of Ryan Lizza as the poster boy for this. In December 2017, Lizza was fired from the New Yorker, placed on leave from CNN, and suspended from teaching classes from Georgetown University when he was accused of improper sexual conduct. The New Yorker issued the following statement: “The New Yorker recently learned that Ryan Lizza engaged in what we believe was improper sexual conduct,” a spokeswoman said in a statement. “We have reviewed the matter and, as a result, have severed ties with Lizza. Due to a request for privacy, we are not commenting further.”

Lizza responded, “I am dismayed that The New Yorker has decided to characterize a respectful relationship with a woman I dated as somehow inappropriate.” Lizza rejected The New Yorker’s characterization of events, saying the company’s decision to fire him “was made hastily and without a full investigation of the relevant facts” and “was a terrible mistake.”

Foregoing a thorough investigation in order to levy swift punishment may result in various legal claims. Consider Conductor James Levine of the NY Metropolitan Opera, who sued the Opera in March 2018 after he was fired over allegations he molested young musicians. Levine claims the Opera conducted a “so-called investigation” with the intention of not finding out whether the accusations against him were credible, but of forcing him out because of his age and Parkinson’s disease. Accordingly, his suit was styled as age and disability discrimination.

Other accuseds have claimed breach of contract, defamation, and sex discrimination:21

 Lawsuits for breach of contract:

A “superstar” employee may have a contract of employment that clearly sets out when they may, “Reverse Discrimination” claims have and may not, be terminated without liability to the taken the form of (1) breach of contract; employer. A knee-jerk termination in the wake of (2) defamation, and (3) sex discrimination. public outcry may violate the terms of such an agreement.

 Failure to follow due process for public employers:

20 NBC News, “A Growing List of Men Accused of Sexual Misconduct Since Weinstein,” https://www.nbcnews.com/storyline/sexual-misconduct/weinstein-here-s-growing-list-men-accused- sexual-misconduct-n816546.

21 Orrick, https://blogs.orrick.com/employment/2018/02/13/new-lawsuit-alleges-rush-to-judgment-in- metoo-climate/

14 Unlike their private employer brethren, public employees have a property right in their continued employment and must receive due process before being deprived of this right. Termination without any investigation will run afoul of this requirement.

 Sex discrimination claims:

Discrimination claims have arisen in circumstances where more men than women are summarily dismissed from their positions due to internal policy decisions to fire or reassign alleged wrongdoers without investigating the facts.

Lawsuits have been filed, perhaps most notably the suit against Google brought by former employee James Damore, who is suing the tech giant for “discrimination against conservative white men.” Damore was fired as an engineer after he published a “manifesto” which “questioned the benefits of diversity programs and suggested women may be biologically inferior engineers.”22 In his lawsuit, he and another fired engineer claim that “employees who expressed views deviating from the majority view at Google on political subjects raised in the workplace and relevant to Google’s employment policies and its business, such as ‘diversity’ hiring policies, ‘bias sensitivity,’ or ‘social justice,’ were/are singled out, mistreated, and systematically punished and terminated from Google, in violation of their legal rights.”23

D. A Wider Array of Conduct

Another trend investigators are seeing is employers’ willingness to investigate a wider array of complaints. Traditionally, employers only investigated claims that triggered EEO concerns, such as complaints related to discrimination, harassment, or retaliation. Many federal and state EEO laws require investigations into these types of complaints. As a result, most employers have policies that require an investigation.

However, employers have become more attuned to broader workplace concerns related to inappropriate conduct and comments in the workplace. Savvy managers are not just broadening their use of the investigations process by responding to the latest trends but are recognizing that understanding and correcting lower-level concerns can avoid legal claims and create a better work environment. Employers are now, more than ever, investigating claims that might implicate codes of conduct or performance expectations.

In February of 2018, NPR conducted a poll in the wake of the #MeToo movement to determine opinions about whether certain behaviors are considered to be inappropriate in the workplace.24 Some of the behaviors listed in the poll were those that we are very accustomed to investigating, such as touching, telling sexual stories or jokes, flirting by

22 Colin Lecher, “James Damore sues Google for allegedly discriminating against conservative white men” (Jan. 8, 2018) THE VERGE, available at: https://www.theverge.com/2018/1/8/16863342/james-damore- google-lawsuit-diversity-memo.

23 Id.

24 NPR Poll: The 'Inappropriate' Office Behaviors Most Pervasive in Workplaces, February 23, 2018.

15 a supervisor, or discussing a co-worker’s sexual preferences. However, other behaviors included leaning over or cornering, standing too close, hovering, commenting on the appearance of the opposite sex, asking questions about a co-worker’s social life, or spreading rumors about a co-worker's personal life.

We can all expect to be asked to investigate complaints that go beyond workplace policies in the coming years.

E. Gender Identity Claims

While sexual harassment, sexual orientation harassment, and gender discrimination claims have been a part of our practices for many years, we are seeing more claims from transgender employees in the wake of #MeToo. This is years overdue, as transgender individuals suffer from a high incidence of harassment and sexual misconduct in the workplace (and in society as a whole), according to one recent study:

In the year prior to completing the survey, 30% of respondents who had a job reported being fired, denied a promotion, or experiencing some other form of mistreatment in the workplace due to their gender identity or expression, such as being verbally harassed or physically or sexually assaulted at work. In a one-year period, 46% of survey respondents were In the year prior to completing the survey, verbally harassed and 9% were 46% of respondents were verbally harassed physically attacked because of and 9% were physically attacked because of being transgender. being transgender. During that same time period, 10% of respondents were sexually - The Report of the 2015 assaulted, and nearly half (47%) were U.S. Transgender Survey sexually assaulted at some point in their lifetime.25

These findings documented profound impacts on the survey respondents, with nearly one-third living in poverty, in large part because of their much higher unemployment rate than the general population.

Additional findings that are relevant to the work we do include the following:

 One in six (16%) respondents who have ever been employed—or 13% of all respondents in the sample—reported losing a job because of their gender identity or expression in their lifetime.

25 The Report of the 2015 U.S. Transgender Survey, (December 2016) NATIONAL CENTER FOR TRANSGENDER EQUITY, available at: https://transequality.org/sites/default/files/docs/usts/USTS-Executive- Summary-Dec17.pdf.

16  In the past year, 27% of those who held or applied for a job during that year— 19% of all respondents—reported being fired, denied a promotion, or not being hired for a job they applied for because of their gender identity or expression.  Fifteen percent (15%) of respondents who had a job in the past year were verbally harassed, physically attacked, and/or sexually assaulted at work because of their gender identity or expression.  Nearly one-quarter (23%) of those who had a job in the past year reported other forms of mistreatment based on their gender identity or expression during that year, such as being forced to use a restroom that did not match their gender identity, being told to present in the wrong gender in order to keep their job, or having a boss or coworker share private information about their transgender status without their permission.  Overall, 30% of respondents who had a job in the past year reported being fired, denied a promotion, or experiencing some other form of mistreatment related to their gender identity or expression.  More than three-quarters (77%) of respondents who had a job in the past year took steps to avoid mistreatment in the workplace, such as hiding or delaying their gender transition or quitting their job.26

These issues have been underrepresented in the #MeToo movement thus far, and in the numbers and types of complainants who have come forward with formal (and highly public) complaints. However, this is changing,27 and we will be seeing more claims from this uniquely vulnerable employee pool going forward.

We have already seen an increase in these kinds of investigative claims, such as claims based on bathroom usage, managers purposefully refusing to use an employee’s pronoun of choice, and employees being faced with questions about their bodies, surgical status and intimate relationships. This sort of intimidating questioning about a person’s body and sexual or personal relationships can be a form of sexual harassment.

Tips for the investigator in this arena include:

 Know the vernacular. If this is not an area where you are educated or have friends or loved ones in your life, do some research to be sure you are thinking about and referencing things correctly. For starters:

o Sex is a label – male or female – based on biology, anatomy and chromosomes, that is assigned at birth. When referring to the sex of a trans person, “assigned male at birth” or “assigned female at birth” are

26 Id.

27 Meredith Talusan, Trans Women and Femmes Are Shouting #MeToo – But Are You Listening? THEM (March 2, 2018) available at: https://www.them.us/story/trans-women-me-too; Seth Abramovitch, Lines Got Blurred: Jeffrey Tambor and an Up-Close Look at Harassment Claims on ‘Transparent’ (May 7, 2018) THE HOLLYWOOD REPORTER, available at: https://www.hollywoodreporter.com/features/lines-got-blurred- jeffrey-tambor-an-up-close-look-at-harassment-claims-transparent-1108939.

17 appropriate working terms to discuss the biology of trans people, where as “male” and “female” are reductive and can be offensive. o Gender is much more complex. It is a social and legal status, and set of expectations from society about behaviors and characteristics. Gender is more about how you are expected to act, because of your assigned sex. o Identity is how you feel inside, and how you express your gender through clothing, behavior, and personal appearance. Identity is not only a personal sense of how you experience yourself, but also how you integrate among a larger social order. It can change over someone’s life. o “Transgender” – a term denoting or relating to a person whose sense of personal identity and gender does not correspond with their assigned sex.

 Be cognizant of the laws in your state when it comes to gender identity discrimination. In some states, a willful refusal to use a preferred pronoun or allow an employee to use the restroom of their choice is a violation of state law.

 It is important to be aware of all the subject areas and evidence that can be relevant. This can include:

o Restroom use o Dress codes o Pronouns o Questions about medical procedures o Gender binary definitions in policies, benefits and workplace opportunities o “Outing” o Comments and slurs o “What are you?”

 Comments about appearance can have special significance in these cases. Do not neglect asking witnesses about remarks that could be deemed harassing where an individual chooses to appear in a manner that does not conform with traditional binary gender norms.

 Be cognizant of the pronouns a witness prefers that you use, and if you are not sure, ask!

In these kinds of investigations, it is critically important to sensitively consider the paradigms you use when assessing the facts. Harassment and discrimination against trans persons present an interesting situation, because trans status can be expressed or not expressed, unlike some other identity classes such as race. As such, it is uniquely vulnerable to scenarios where people invalidate a complainant’s gender expression because of this quality. This stuff is hard. The sad fact is that there is a disproportionate rate of suicide and mental illness amongst trans people due to the inability to express oneself, as well as to the social response that one receives for doing so. Some language we use to evaluate

18 and discuss these issues could allow people to assume that being trans is akin to a personal choice, rather than an innate condition/feature of one's personhood. This is a complex issue that is near impossible to define in short bullet points or even in this discussion. The investigator in these cases must understand the complexity of the experiences of complainants in these cases in order to accurately assess whether or not assumptions or biases around sex and gender are improperly driving workplace behavior.

III. NEW PRESSURES ON INVESTIGATORS

A year ago, we would have been shocked to see a high-profile journalist fired within 48 hours of a harassment complaint being filed. We would have scratched our heads at the sight of a popular “feminist” politician stepping down after allegedly touching someone on the back. Most importantly for our purposes, we would have been shocked to see these kinds of immediate consequences before any investigation could get started or before there was any fair or thorough inquiry into the situation.

This is the landscape for investigators in the post-#MeToo world. There is more pressure to get a better and more thorough investigation done in less time … or done in almost no time. Period.

So what is the responsible investigator to do? Well, for starters: identify the pressure points, develop an action plan, and then ensure that you have a process worthy of a defense to the death. (Okay, maybe not to the death, but you get the idea). You are the guardian of your process, and any shortcuts or flaws that are in it will be yours to own if you are ever deposed and your investigation is later questioned.

There are pressure points you may encounter now. In addition to an all-around increase in pressure, these include crisis management, what deadlines and timelines mean today, and the need to become media savvy.

A. The Need to Understand Crisis Management

Investigations often begin because there is a crisis in the workplace but, before #MeToo, it was rare when an investigator had to truly understand crisis management. Those days are long gone. Any investigator who is working in a high-visibility case or industry has to understand some of the basics of crisis management.

One of these basic tenets is that a high-profile harassment claim is more than just litigation risk to the employer:

[A]mong some major corporations, a fear-driven shift has begun: Harassment is now considered not just a legal liability, but also a serious reputational and business risk. Executives and boards are

19 beginning to look at harassment “the same way you think about other risks to your organization” like security or hacking.28

Previously viewed by many as unavoidable litigation risks, boards of directors have begun to appreciate these problems as potentially seismic events, understanding that they are not limited by time and pose a host of fundamental risks, including risks to the company’s brand and market reputation, its operations, and its shareholder value.29

This obviously makes sense, as we have seen the cost to corporations of allegations of this nature.

Hours after Kate Upton used TWITTER to accuse Guess co-founder Paul Marciano of using his power to “sexually and emotionally harass women,” the company’s shares dropped almost 18%. Guess lost more than $250 million in market value in one day.30

28 Kaye Foster-Cheek, former head of human resources for Johnson & Johnson and a member of three boards, quoted by Jodi Kantor in #MeToo Called for an Overhaul. Are Workplaces Really Changing? (March 23, 2018) THE NEW YORK TIMES, available at: https://www.nytimes.com/2018/03/23/us/sexual-harassment-workplace- response.html.

29 Rosemary Lally and Brandon Whitehill, How Corporate Boards Can Combat Sexual Harassment: Recommendations and Resources for Directors and Investors at 3, Council of Institutional Investors (Mar. 2018), https://www.cii.org/files/publications/misc/03_01_18_corporate_boards_sexual_harassment.pdf (“High-profile allegations of sexual harassment have beset the venture capital community, affecting both VC firm members and executives at the private companies in which they invest (VC firms have also been criticized for lacking diversity). Recently, however, VC firms have sought to get in front of the issue. Boardlist found that since September 2017, 83% of venture capital-backed companies discussed the climate of sexual harassment and 43% diagnosed their company’s culture. In addition, 50% are developing a new plan to respond to sexual harassment reports and 45% are reevaluating the plans they have in place.”).

30 Samantha Cooney, Companies Are Losing Millions After #MeToo Allegations Like Kate Upton’s Claim Against Paul Marciano (February 2, 2018) TIME, available at: http://time.com/5130340/kate-upton-guess-stock-price/.

20 The WALL STREET JOURNAL reported on January 26, 2018 that Steve Wynn, the casino mogul and founder and CEO of Wynn Resorts, had been accused of sexual harassment and assault by several employees, including one allegation that led to a $7.5 million settlement. In a statement to the JOURNAL, Wynn denied the allegations. A denial from Wynn didn’t stop the damage to his company. Shares for Wynn Resorts dropped by 10% on the day the story was published and another 9% three (3) days later, shaving off about $3.5 billion With financial performance and of the company’s value, according to Fortune. reputation on the line, it is not Wynn lost $412 million of his net worth.31 surprising that companies are now Shares of tech giant Microsoft slid 2.44% on treating allegations of harassment like March 13, 2018 following news the company a corporate crisis. received 238 internal complaints about gender discrimination or sexual harassment between 2010 and 2016, according to a Reuters' review of court filings made public.32

Some Uber customers vowed to turn their back on the ride-hailing company after a string of revelations about unethical practices and workplace harassment surfaced. They apparently did more than just grouse. According to research firm eMarketer, fewer people will ride with Uber than originally projected, creating a business opportunity for Lyft. Shelleen Shum, eMarketer's forecasting director, stated, “To make things worse for Uber, Lyft — which had been rapidly expanding its coverage — seized on the opportunity to brand itself as a more socially-conscious alternative.”33

Sexual harassment allegations have cost companies in other ways beyond share prices. In May 2017, Fox News said it had paid $45 million related to litigation costs related to sexual harassment allegations. Netflix reportedly lost $39 million for cutting ties with Kevin Spacey, who was accused of sexual misconduct by several men.34 Things got worse for Spacey and those still affiliated with him. In August 2018, it was reported that his new film, “Billionaire Boys Club,” grossed the following at these theaters:

Metro Movies 12 in Middletown, CT $45.00 AMC Sundial in Sarasota, FL $19.00

31 Id.

32 Kimberly Chin, Microsoft slides off record highs after 238 discrimination and harassment complaints filed by female workers go public, . . . (March 13, 2018) BUSINESS INSIDER: MARKETS INSIDER, available at: https://markets.businessinsider.com/news/stocks/microsoft-stock-price-slides-after-discrimination-harassment- complaints-go-public-2018-3-1018661559.

33 Jefferson Graham, Vows to 'delete Uber' weren't just talk: Uber loses market share to Lyft after year of scandal (May 15, 2018) USA TODAY, available at: https://www.usatoday.com/story/tech/talkingtech/2018/05/15/uber-lost- market-share-lyft-after-year-scandals-emarketer-says/612348002/.

34Samantha Cooney, Companies Are Losing Millions After #MeToo Allegations Like Kate Upton’s Claim Against Paul Marciano (February 2, 2018) TIME, available at: http://time.com/5130340/kate-upton-guess-stock-price/.

21 AMC Deer Valley 16 in Antioch, CA $ 9.00

The film, which co-stars Ansel Elgort and Taron Egerton, was released on VOD last month and opened in just eight (8) theaters over the same summer weekend, according to The Hollywood Reporter. The movie was given a “quiet release” in select cities across the country, including Phoenix, Detroit, New Orleans, Miami and Hartford, and was not released in hot spots like Los Angeles or New York City. For comparison, the top-performing movie released over the same weekend was “Crazy Rich Asians,” which raked in $25.2 million from 3,348 locations.

With financial performance and reputation on the line, it is not surprising that companies are now treating allegations of harassment like a corporate crisis. Understanding the crisis management tools that the employer is likely to employ will help the investigator anticipate and deal with pressures that can result in this context.

The model for managing corporate crisis is fairly well agreed upon and established, and generally follows the strategy developed many years ago by Johnson & Johnson after cyanide was discovered in Tylenol in 1982, killing seven (7) people.35 There, the company immediately took responsibility for the situation and issued a recall of 31 million bottles of Tylenol. The company’s senior leaders held press conferences to publicly explain its actions. From this corporate crisis, there emerged the four (4) basic tenets of modern crisis management:

1) Don’t delay 2) Apologize 3) Be transparent 4) Be accountable

The first and third of these is likely to impact you, as the investigator.36 An investigator cannot “delay,” and timeliness is going to mean even more than it typically does in this context. Investigators must devote the time and resources to get going as quickly as possible and must document delays in the process to explain the timeline later, if it is questioned.

What is “transparent” in the world of workplace investigations, where allegations, findings and corrective/ remedial actions are often kept confidential? This is raised more and more, as employers outside of the public sphere are beginning to request reports that can be shared with parties, employees, and even the public. More on that is to come in our section on reports below.

35 See, e.g., Oliver Staley, Why is Facebook Failing to Follow the Basic Rules of Crisis Management? (March 20, 2018) QUARTZ AT WORK (discussing Johnson & Johnson’s role in setting modern corporate crisis response standards), available at: https://qz.com/work/1233417/why-is-facebook-failing-to-follow-the-basic-rules-of-crisis- management/.

36 The second and fourth elements, however, also relate to your investigation. Clients may need investigative findings to determine whether to, and for what they should, apologize or be held accountable.

22

B. The Requirement to Be Media Savvy

The media has caught on to the role of the independent investigator as a newsworthy part of the harassment landscape. We are seeing our names in newspaper with increasing frequency. Before #MeToo, a case might make its way from complaint to consequence with little to no discussion of the investigation (or investigator). This is no longer the case, and you may be approached by reporters for information on your investigation – before or after the work is done. If your case is high-profile, here are a few tips that might help navigate this potential minefield:

 Meet with your team (or sit down with yourself!) and your client, and think through your communications strategy at the start, before anyone from the press calls you for a comment. There are cases that may require some interaction with the press, particularly those involving public figures or institutions. Outline the areas that are appropriate for you to discuss – and those that are not – and stick to that outline. Get your client’s permission to speak publicly.

 Designate someone on your team to take all media inquiries and make sure everyone sends members of the press to your assigned spokesperson.

 Remember that your goal when speaking to the press is not to say anything memorable. Nothing that is “sound-bite-worthy.” Even if you have a catchy phrase that makes perfect sense in the context of everything you are saying, remember that sound bites are often taken out of context and can make you look biased or unprofessional, which is not the look you’re going for.

 Designate someone on your team to track social media reports about your investigation (or about you). It is better to know what is being said, and think through appropriate responses (if any), than to be blindsided.

 If you are hired for a high-profile case and this is your first one, get some professional advice from a PR firm or trusted colleague who has spent time in the media trenches.

While the potential for negative media scrutiny can be daunting, and a disincentive to speaking to the press, there is an equally-dangerous temptation to try and make the most of the media spotlight if you are hired for a high-profile case. Don’t take the bait. Your job as the investigator is not to build visibility for yourself – it is to credibly investigate allegations of wrongdoing. Moreover, no matter how many important cases you have handled, you are a rookie in the world of instantaneous news and social media. And you are dealing with pros who are likely looking for a misstep by you, as much as they are looking for a story. Don’t be caught flat-footed or inadvertently fall into a media trap.

23

And as a side-note, make sure your own social media presence does not contain any fodder for media attention. For example, make sure that your Facebook profile does not contain any political or other material that could call your impartiality into question.

C. The Increased Pressure on Timelines

These pressures we have just discussed are exponentially magnified when it comes to your timelines for conducting an investigation. If an ordinary harassment case used to take four (4) to six (6) weeks to complete, be prepared to receive major pushback on that timeline.

This pressure is probably the most difficult one. Everyone involved feels a loss of control. Clients are anxious; a crisis has blown up, and they have lost control of the process because they have handed it over to an impartial investigator. Complainants are distraught because they worry about what is going to happen to them now that they have come forward. And respondents are anxiously contemplating what may happen to their careers, and what other reputational harm may be coming in a landscape dominated by the media megaphone.

Often the fear that accompanies this loss of control is transferred to the investigator. Clients pressure you to “get this thing over with;” complainants cannot sleep at night until they know that “they can get closure;” and respondents are on pins and needles waiting to see if this situation is going to cost them their careers.

You will receive more pressure than you already get to investigate quickly, if not instantaneously, or to short-circuit the respondent’s opportunity to respond to the evidence. Your job is to safeguard your process, whatever the pressure may be.

Some strategies to help combat this pressure include:

 Remember that information can be the antidote to fear. More conversation with the principal parties about the process, the standards you will be using to weigh data, the timelines, and your commitment to communication can help.

 Explain the necessity of a deliberate and thorough process as the best way to reach reasoned findings, but do it in language that is understandable. You can say, “To be fair to all of the parties, it is important that they be given a full opportunity to tell me their story. This can take more than one interview.” Or, “Sometimes I have to review a lot of email or other documentation, in addition to speaking to witnesses. This takes time to do carefully.”

 Remember that, even though you do this every day, the interested parties in your case wake up thinking about the situation and agonize over it

24 throughout the day. It is also often the last thing they think about before they go to bed at night. This goes for the business leaders, the employees who have harassment concerns, and those accused of wrongdoing.

At the end of the day, it is critical to be realistic with the client and with yourself about timelines. Make sure you have built in the time to do it right and not just enough time to “get it over with.”

IV. PRACTICAL REALITIES: POLARIZATION OF MEN AND WOMEN AND DISCRIMINATION CLAIMS

Newton taught us that for every action, there is an equal and opposite reaction. The #MeToo movement has given voice to a female fury that has festered for generations. With this platform for empowerment has come the casual use of legal terms that has created an avalanche of judgment and indignation, sometimes casting aside meaning and nuance in its wake. People – male, female, and those beyond the binary – can be rude, awkward, stupid and even boorish. They can also engage in unwanted touching which can be criminal in nature. Increasingly, all these behaviors are often given one label -- “harassment.”37

The backlash to the backlash is here, both in the workplace and in schools. Just consider Professor Michael Blumenthal’s experience at Harvard back in 1991 when he had to answer to the department chair about “repeatedly” asking a female student to lunch to discuss her thesis. After having to explain the context, Blumenthal decided he would not again put himself into a position where his actions or motives might be misinterpreted. He said, “I never again met with a female student “I never again met with a female student without my without my office door wide open. I office door wide open. I never again suggested lunch never again suggested lunch with a with a student member of the opposite sex.” student member of the opposite sex.”38 - Professor Michael Blumenthal That was 1991. Now it’s 2018, and yet some things never change. Professor Blumenthal had his personal experience that served as a life lesson for him. Now, with the media giving attention to sexual harassment like never before, others are following suit. A recent Pew Research Center study has found that most employees in the workplace today say that #MeToo

37 Vox, https://www.vox.com/2018/4/5/17157240/me-too-movement-sexual-harassment-aziz-ansari- accusation.

38 https://www.wvgazettemail.com/opinion/gazette_opinion/op_ed_commentaries/michael-blumenthal-i-was-accused- of-sexual-harassment/article_7efa4a27-efb6-5a74-a8ac-0ac1bdc4bcb9.html

25 has made it more difficult to interact with opposite sex employees at work.39 The study found:

A whopping 51% of employees stated that #MeToo has made interactions with the opposite sex at work harder, while only 12% thought these interactions were made easier by #MeToo. In other words, #MeToo hasn’t improved the situation, it’s made it worse.40

Will what started as an “it’s-about-time” campaign have the opposite effect? Will male colleagues view women as a liability, vulnerable and over-sensitive, such that they won’t ask them to lunch, to enjoy an after-work Moscow mule, or to watch the Super Bowl together when away on a business trip? That may be the direction we are headed. With the revelation of years of sexual exploitation bringing about so much positive change, an unfortunate ripple effect is that some men are afraid of being accused of something they did – or didn’t – do.

And how about the impact on hiring practices. Some men are saying privately they will not hire any more women:

As someone who works in finance and is currently a student in the executive MBA program at the Wharton School, I’ve heard men say that they’re less likely to hire or associate with women as a result of the intensity of MeToo. Whether consciously or not, I am not sure how any man in America isn’t reassessing his hiring practices. I have heard directly from male executives at two prominent Wall Street firms that they are moving their female direct reports to report to female bosses.41

Imagine this scenario: You are assigned to investigate a complaint from a female employee – let’s call her Sally - who alleges that her male supervisor – we’ll call him Jim – is leaving her out of opportunities to network. She feels it is gender discrimination. When you interview Sally, she explains that Jim meets with her male counterparts at the local pub every Friday night to wind down and swap stories of the week. But Jim never invites Sally, or any other women, for that matter. Sally also informed you that, while her male counterparts often travel with Jim, she has never once been given that opportunity. And, Sally presents you with evidence indicating that her lack of a mentor has, indeed, stymied her advancement in comparison to her similarly-situated male colleagues.

39 Nikki Graf, Sexual Harassment at Work in the Era of #MeToo, PEW RESEARCH CENTER (April 4, 2018) available at: http://www.pewsocialtrends.org/2018/04/04/sexual-harassment-at-work-in-the-era-of-metoo/.

40 Kim Elsesser, 6 Keys To Interacting With Opposite Sex Coworkers In The #MeToo Era, FORBES, available online at: https://www.forbes.com/sites/kimelsesser/2018/04/06/6-keys-to-interacting-with- opposite-sex-coworkers-in-metoo-era/#70ab9e8fdc4c

41 Katherine Tarbox, Is #MeToo Backlash Hurting Women’s Opportunities in Finance? HARVARD BUSINESS REVIEW (June 24, 2018), available at: https://hbr.org/2018/03/is-metoo-backlash-hurting-womens- opportunities-in-finance

26 And then you meet with Jim. Jim explains that, because Sally is his direct report and a woman twenty (20) years his junior, he is deeply concerned about being accused of impropriety. She is also single and attractive, which Jim says is also intimidating. Jim freely admits that he does not invite Sally to the Friday events – and then explains that he worries about someone saying something off-color. Jim also admits that he does not travel with Sally, despite taking her male colleagues with him from time to time. But, he explains, after seeing the #MeToo coverage, he decided that he would never again travel with a subordinate female.

To you, Jim’s concern appears real. He seems to genuinely like and respect Sally.

But Jim fears the possibility that Sally might someday accuse him of impropriety. In fact, Jim has instructed the men in his department to leave their office door open if meeting with Sally. He has admonished the men to never attend any social event with Sally alone.

Does the #MeToo movement change how you would evaluate Sally’s claims? Perhaps it should. What we once saw as retaliatory impulses may, in fact, be something different. How about discriminatory intent versus impact? Indeed, a female employee’s complaint of gender bias for being left out of opportunities to interact with male managers or mentors may now be countered by the male accused, voicing concern and apprehension about dealing with female co-workers. What we once might have seen as indicia of bias, in fact, may be real fear and confusion. Does that affect our findings?

With male managers and executives vowing to change the way they interact with young women, the new reality is here. Men are assessing their risks, given the immediate and frightening social media devastation that can occur from an allegation alone. These dynamics are resulting in increasingly common “backlash” claims.

What does this mean for the workplace investigator? To start, it means that instances of exclusionary behavior can be important in assessing gender-based discrimination or retaliation claims. We have heard comments like those from Jim, and others, in our work this year:

– “Should I no longer meet with a woman alone in my office with the door closed?” – “Should I always invite a third party along to lunch meetings with female colleagues?” – “Should I even attend after-hours office events?” – “What about compliments on appearance and dress? Are those okay?” – “Are hugs ever okay?” – “Can I open the door or offer to assist carrying a heavy object?” – “Can I talk about my personal life, such as about my marriage, with a female colleague? – “Can I invite only the men on the team for overnight business trips?” – “Wouldn’t it be easier not to hire women at all?”

You can see the investigation issues looming in these questions! And while these attitudes can expose an employer to claims and legal problems, they are not surprising

27 in a world where an unproven allegation can take down a career before an investigation can even get started. What we are seeing is less about committing sexual harassment and more about fear of being accused of sexual harassment – and paying the price in social media and elsewhere before an investigation can even take place.

This can surface as exclusion, differential treatment and a denial of some workplace benefits and opportunities for women. This creates problems for an investigator who is tasked with being thorough and deliberate, but who is operating in this exigent world of instant media soundbites and social media campaigns.

Let’s not lose sight that women are not the only ones who experience sexual harassment. A December 2017 CNN poll found that 10 % of men reported being subjected to sexual harassment or sexual misconduct at work. Nearly one in five — about 17 % — of complaints filed with the EEOC come from men, a rate that has remained relatively consistent over the past decade.

Consider this recent headline:

Or this one…

At New York University, 62-year-old Literary scholar and philosopher, Avital Ronell, was recently accused by her former doctoral student Nimrod Reitman, who is thirty-two years her junior. She identifies as lesbian, while he identifies as gay. Their relationship apparently was the subject of an eleven-month internal investigation, which found the sexual harassment claims against Ronell credible (though she was cleared of more

28 serious charges). 42 N.Y.U. has suspended Ronell for a year without pay; Reitman is suing Ronell and the university.

For workplace investigators, the #MeToo movement is an opportunity to check our own biases – again.

Every claim demands our careful scrutiny. As investigators, we must encourage our clients to pause when they receive a complaint of sexual harassment or discrimination and respond in a way that protects both the accuser and the accused.

42 https://www.newyorker.com/news/our-columnists/an-nyu-sexual-harassment-case-has-spurred-a-necessary- conversation-about-metoo

29 V. EEOC GUIDANCE AS IT RELATES TO INVESTIGATIONS

The EEOC Report and the Proposed Enforcement Guidance on Unlawful Harassment43 recommends employers “reboot” their preventative measures, which includes investigations (among other things). The EEOC Report suggests that adequate investigations can help prevent and correct harassment and articulates how adequate investigations can help establish both prongs of the Faragher-Ellerth affirmative defense to vicarious liability. This should incentivize employers to increase their investment in workplace investigations.

A. “Proactive” and “Global” Interventions May Become the New Standard of Care for Employers in Preventing and Correcting Workplace Harassment

Overall, the EEOC Report encourages employers to take a more “proactive and global” approach to addressing workplace harassment. It encourages employers to provide flexible reporting systems that give employees a choice in how they report and to whom they report alleged harassment. This could empower employees to report and increase the overall number of claims in the short term.44 The EEOC Report also encourages employers to conduct regular climate surveys to demonstrate their commitment to preventing and correcting workplace harassment and to actually accomplish those goals.

B. “Core Principles”

The Proposed Guidance adopts the EEOC Report’s “core principles” in effectively preventing and correcting workplace harassment:

 Committed and engaged leadership;  Consistent and demonstrated accountability;  Strong and comprehensive harassment policies;  Trusted and accessible complaint procedures; and  Regular, interactive training tailored to the audience and the employer.

Leadership must show that it is engaged and committed to preventing and correcting harassment by holding harassers accountable and increasing the actual and perceived trustworthiness of the process.

C. “Promising Practices:” A Guide to Limiting Liability and Reducing Workplace Harassment

Whether an employer’s response to an allegation of harassment was reasonable and whether an employee unreasonably failed to take advantage of the employer’s preventive or corrective opportunities or to otherwise avoid harm are fact-specific

43 https://www.regulations.gov/docket?D=EEOC-2016-0009

44 Providing multiple reporting avenues could increase the likelihood that at least one of those options would be “reasonable” for the employee to choose.

30 inquiries. The EEOC offers a list of “promising practices” that can help employers establish both that it took reasonable care and that an employee unreasonably failed to utilize available anti-harassment resources. Adherence to these practices can also reduce liability by deterring workplace harassment.

 Promising Practices in Leadership and Accountability

The Proposed Guidance also adopts the EEOC Report’s recommendation that leadership fosters a workplace culture that proactively engages in harassment prevention and consistently holds harassers accountable. It recommends employers take the following steps to reasonably respond to and prevent workplace harassment:

 Clearly, frequently, and unequivocally state that harassment is prohibited and will not be tolerated;  Allocate sufficient resources for effective “Employers should devote sufficient harassment prevention strategies;  Provide appropriate authority to resources to harassment prevention individuals responsible for creating, efforts, both to ensure that such efforts are implementing, and managing effective, and to reinforce the credibility of harassment prevention strategies; leadership’s commitment to creating a  Allocate sufficient staff time for workplace free of harassment.” harassment prevention efforts; and  Assess harassment risk factors and take -- EEOC Select Task Force Report steps to minimize or eliminate those risks.

To achieve these goals, employers should:

 Have a comprehensive and easy-to-understand harassment policy;  Regularly communicate that policy to all employees;  Maintain a harassment complaint system that is “fully resourced,” accessible to employees, offers multiple avenues for making a complaint, if possible, and is regularly communicated to all employees;  Regularly and effectively train all employees about the harassment policy and complaint system;  Regularly and effectively train supervisors and managers about how to prevent, recognize, and respond to objectionable conduct that, if left unchecked, may rise to the level of unlawful harassment;  Acknowledge employees, supervisors, and managers, as appropriate, for creating and maintaining respectful workplaces and promptly reporting, investigating, and resolving harassment claims;  Impose discipline that is prompt, consistent, and proportionate to the severity of the harassment, when harassment is determined to have occurred; and  Conduct periodic anonymous climate surveys and/or engage outside expertise to evaluate the effectiveness of anti-harassment strategies.

31  Promising Practices in Creating a Comprehensive and Effective Harassment Policy

The Proposed Guidance also adopts several EEOC Report recommendations designed to shift attitudes about addressing workplace harassment from secrecy to respectful engagement. It proposes that employers offer:

 A statement that the employer will provide a prompt, impartial, and thorough investigation;

 A statement that the identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible, consistent with a thorough and impartial investigation and with relevant legal requirements;

 A statement that employees are encouraged to respond to questions or to otherwise participate in investigations into alleged harassment;

 A statement that information obtained during an investigation will be kept confidential to the extent possible, consistent with a thorough and impartial investigation and with relevant legal requirements;

 An assurance that the employer will take immediate and proportionate corrective action if it determines that harassment has occurred; and

 An unequivocal statement that retaliation is prohibited and will not be tolerated, and an assurance that alleged victims, individuals who in good faith report harassment or participate in investigations, and other relevant individuals will be protected from retaliation.

Investigations help accomplish these promising practices by fulfilling the promise of a prompt, impartial, and thorough investigation, and by reinforcing the privacy and retaliation admonishments.

 Promising Practices in Creating an Effective and Accessible Harassment Complaint System

Among the “promising practices” that can establish whether an employer took reasonable care, is the creation of an effective and accessible harassment complaint system. The Proposed Guidance defines an effective harassment complaint system as one that “welcomes questions, concerns, and complaints; encourages employees to report potentially problematic conduct early; treats alleged victims, complainants, witnesses, alleged harassers, and others with respect; operates promptly, thoroughly, and impartially; and imposes appropriate consequences for harassment or related misconduct, such as retaliation.”

To create such a system, the Proposed Guidance suggests that the system:

32  Is fully resourced, enabling the employer to respond promptly, thoroughly, and effectively to complaints;  Is translated into all languages commonly used by employees;  Provides multiple avenues of complaint, if possible;  Provides prompt, thorough, and neutral investigations;  Protects the privacy of alleged victims, individuals who report harassment, witnesses, alleged harassers, and other relevant individuals to the greatest extent possible, consistent with a thorough and impartial investigation and with relevant legal requirements;  Includes processes to determine whether alleged victims, individuals who report harassment, witnesses, and other relevant individuals are subjected to retaliation, and imposes sanctions on individuals responsible for retaliation;  Includes processes to ensure that alleged harassers are not prematurely presumed guilty or prematurely disciplined for harassment; and  Includes processes to convey the resolution of the complaint to the complainant and the alleged harasser and also, where appropriate, the preventative and corrective action taken as a result.

It also suggests that employees who manage complaints or implement the harassment complaint system in any way meet certain requirements. This includes those assigned to investigate. Specifically, that they:

 Are well-trained, objective, and neutral;  Have the authority, independence, and resources required to receive, investigate, and resolve complaints appropriately;  Take all questions, concerns, and complaints seriously, and respond promptly and appropriately;  Create and maintain an environment in which employees feel comfortable reporting harassment to management;  Understand and maintain the confidentiality associated with the complaint process; and  Appropriately document every complaint, from initial intake to investigation to resolution, use guidelines to weigh the credibility of all relevant parties, and prepare a written report documenting the investigation, findings, recommendations, and disciplinary action imposed (if any), and corrective and preventative action taken (if any).

Providing adequate investigations is at the heart of providing an effective complaint system. As with the Promising Practices in Leadership and Accountability, the Proposed Guidance does not define “fully resourced.”

However, it does state that “effective” complaint systems provide “prompt, thorough, and neutral investigations.” Because providing a prompt, thorough, and impartial investigation is part of an employer’s effective complaint system, a “fully resourced” complaint system would presumably fund just such an investigation. The Proposed Guidance also echoes the EEOC Report’s recommendation that investigations be adequately resourced to demonstrate the employer’s commitment to preventing and resolving workplace harassment.

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VI. CHANGES TO THE METHOD OF REPORTING FINDINGS

As noted throughout this paper, the stakes are higher than ever before when it comes to workplace harassment. The public is watching, and social media is ready to spread the word. As employers try to balance being accountable and transparent on the one hand, with respecting privacy and confidentiality on the other, investigators can expect to be asked to present findings in new ways.

We are accustomed to producing full written reports that include our methodology, the information we collected, and our findings and conclusions. This typically includes detailed information about what witnesses shared with us, as well as what we learned from documents and other evidence collected. The benefit of a full written report is that it provides support for our analysis and conclusions and is our most compelling evidence to demonstrate that we were prompt, thorough, and impartial in the event we are called upon to defend our findings.

However, we can expect to receive more requests for abbreviated reports, such as an Executive Summary, or even an oral report with no accompanying written report at all. There are some issues to consider if you are approached with a request for an abbreviated report. How will you demonstrate your thoroughness? What is critical to include in a summary? What backup documentation should you maintain? Put yourself in the shoes of a member of the public – what would you want to know if you were presented with a summary? You would likely want to know about the investigative methodology - How many witnesses were interviewed? How many documents were reviewed? When did this investigation begin? What standard of evidence was used? You can convey this information with little, or no, identifying information.

It is also important to include statements affirmatively asserting your independence and thoroughness. A summary report might state, as examples:

The employer and its representatives allowed me discretion to conduct the investigation as determined to be necessary. I was given complete access to all requested witnesses and documents. No party interfered with, or attempted to influence, the findings in this Report.

In reaching these findings, I carefully considered the responses and perspectives of the parties; gave appropriate weight to the relevant evidence; analyzed applicable policies; and, conducted a credibility assessment, including but not limited to factors such as motivations, corroborating evidence, plausibility of events, consistent and inconsistent evidence, material omissions, proximity in time, and comparator factors.

Note, again, that neither sample statement provides confidential or identifying information, yet still showcases your process, thoroughness, and Affirmatively assert your independence. independence and thoroughness. 34

It is also important to think through how you will defend your process and conclusions if you are later challenged. The ideal method is to prepare a full report and then create the summary from the full report. Whether you provide the full report to the client can be decided on a case-by-case basis. If the client wants to forgo the expense of writing a full report, be sure you have some internal document to remind yourself of your credibility assessments, and how you reached your ultimate findings and conclusions.

Finally, do not be lulled into thinking that a summary is easier to write or will take less time than a full report. Set client expectation accordingly. Remember the oft-quoted saying, “If I had more time, I would have written a shorter letter.” The process of reviewing the evidence, analyzing it, and reaching your findings is likely to be quite similar whether you are writing a full report or some abbreviated version.

VII. BE READY TO DEFEND YOURSELF

Our work will be under greater scrutiny as the first waves of #MeToo litigation gain momentum and work their way through hearing processes, arbitrations, or even litigation. More than ever before, it is important that you take steps during the investigative process to be sure you are well-poised to defend your work and your conclusions.

Be deposition ready. Here are a few tips:

 As you create your investigative plan, be purposeful about being prompt and thorough.

Many workplace investigators these days are receiving more requests for their services than ever before. Avoid the temptation to take on more than you can handle. This will avoid delayed reports, which is an easy target to challenge your process.

Similarly, be vigilant about ensuring that you have interviewed all key witnesses and considered all potentially relevant documents. If you receive witness lists from the complainant or respondent, be sure to understand what each witness might tell you as you consider whom to interview. If you decide not to interview these individuals, note in your report the reasons for your decision.

 Pay attention to your document retention practices.

Have a document retention practice that you follow in every investigation. Think through which documents you will retain in your files and which you will discard. For example, think about how to manage your draft reports. If you are faced with a deposition subpoena asking for “all documents” related to your investigation, think about how that will play out if you have six (6) or seven (7) drafts in your file that you must produce, potentially even some drafts with alternate findings as you worked through your analysis. Retaining old drafts invites unnecessary fodder for litigation counsel, and just might turn your one-day deposition into a multi-day experience.

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In short, think through how you would like your file to look if you were to receive a subpoena, and this will help you and your office produce a workable retention policy.

 Be particularly attuned to safeguarding your independence

With such high – and often public – stakes comes pressure for certain outcomes. This is not to say that we believe our clients routinely pressure us into reaching certain findings. That is, in our experience, not common. However, it is common for those involved to be under tremendous pressure, and that can unwittingly result in pressure on the investigator.

Be alert. Remind your client of the importance of your independence throughout the process. Be sure that your neutrality is showcased in all your communications.

VIII. CONCLUSION

Based on these dramatic changes over the past year, we leave you with the following predictions for the days ahead:

 Moving away from forced arbitration for sexual harassment claims.45  Lessening some of the stigma that comes with reporting.46  Increasing use of social media as a platform to share claims and stories.  Growing number of complaints.47  Expanding the amount of training required (both in frequency and the number of employees needing to be trained).  Moving towards more transparency of investigations and sanctions.48  Broadening protections to encompass independent contractors.49  More proposed and enacted legislation regarding sexual harassment this year and next.50  Declining public focus on the issue over time, but lasting impact.51

45 Law360, “#MeToo's Impact on Sexual Harassment Law Just Beginning.”

46 BPR, http://bpr.org/post/metoo-rallies-wnc-seek-end-stigma-being-victim; TIME, http://time.com/time- person-of-the-year-2017-silence-breakers/; The Guardian, https://www.theguardian.com/commentisfree/2018/feb/10/sexual-harassment-power-bullying-metoo.

47 NPR, https://www.npr.org/2018/06/04/615783454/-metoo-complaints-swamp-human-resource- departments.

48 The Sacramento Bee, https://www.sacbee.com/news/politics-government/capitol- alert/article198107114.html.

49 EEOC, https://www.eeoc.gov/eeoc/task_force/harassment/tippett.cfm.

50 EEOC, https://www.eeoc.gov/eeoc/newsroom/release/6-11-18.cfm. 51 UN Environment “Understanding Issue Attention Cycles,” http://web.unep.org/geo/resources/ieacp/iea- general/overview/resource-book-structure/module-3/understanding-issue-attention; The Washington Post,

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With that said, as the last year has demonstrated, it is difficult to know precisely what will come next. In the wake of #MeToo, the surge of awareness, attention, accountability, and allegations presents interesting and complicated challenges for workplace investigators. To meet these challenges, we investigators must stay attuned and respond nimbly to rapid developments. We hope the discussion above, and our predictions for what may come next, help you do so.

One thing is clear: it is an exciting and important time to be a workplace investigator.

https://www.washingtonpost.com/news/the-intersect/wp/2018/01/22/how-metoo-really-was-different- according-to-data/?utm_term=.8f93a8310145.

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