How to Investigate #MeToo
One after another, reports involving allegations of sexual misconduct continue to be made public. Many of these reports follow a similar scenario—a middle-aged, executive-level man allegedly uses his power and influence to target, and sometimes sexually assault, a person over whom he has power. When true, the events behind these stories can leave the victims and their families scarred and damaged for life. Given what’s at stake, many victims and their advocates have turned to Twitter to express solidarity and expose their alleged abusers, using the #MeToo hashtag. By now, the #MeToo movement has become a worldwide phenomenon, and its impact has put employers of every stripe on notice.
In the United States, the federal government’s Equal Employment Opportunity Commission (EEOC) has been vocal on the topic. Recently, EEOC Commissioner Chai Feldblum publicly offered three overarching recommendations to employers attending an Ogletree Deakins Workplace Strategies conference: Change workplace culture; hold people accountable; and implement the right policies, procedures, and training.
These directives are helpful, but seasoned security professionals, like their counterparts in HR, know that the problem requires more than recommendations and policy tweaks. Experienced security managers know that workplace behavior is modified and office cultures are changed when allegations of misconduct are taken seriously and investigated properly and thoroughly. Together, these serious attitudes and activities buttress what ethics and compliance experts call an organization’s compliance regime. When that regime is fair, disciplined, and combined with sound policies, clear expectations, and exemplary leadership, it forms the foundation of the organization’s culture and, ultimately, its reputation and identity.
Recognizing this, organizations of all sizes are increasingly turning to security professionals to either assist HR in conducting internal investigations or to conduct the investigations themselves. This is a serious responsibility, so it is important to keep in mind that a successful workplace investigation is a complex undertaking. It is time consuming and fraught with the potential for legal liability. It can also be expensive.
A proper investigation requires an intricate mixture of skill, experience, and patience. Those who attempt one without an understanding of the fundamentals are more likely to fail. The case study ("From Consensual to Concerning," below) is provided to help the reader better understand how these fundamentals play out during an investigation.
Experienced investigators know that few workplace activities invoke so much risk—and at the same time, so much opportunity—as an investigation. An improperly conducted workplace investigation can be ruinous and harm the careers of everyone involved. But a well-executed investigation bolsters an organization’s culture, which in turn enhances its reputation and its identity.
Successful investigations often rely on teams. In #MeToo investigations, the typical team includes three groups: fact finders, advisors, and decision makers.
Fact finders gather information. They take direction from the appointed advisors and pursue the investigation’s objectives by means of thoughtful and deliberate fact-finding. Their purpose requires them to be objective, so they must do their work in a fair, impartial, thorough, and purposeful manner.
Fact finders’ tasks often include the gathering and proper preservation of physical, electronic, and testimonial evidence. Their results are typically packaged in a formal report and ultimately provided to the decision maker by way of the advisor. Under ideal circumstances, that advisor is legal counsel, so the fact finder’s report can be designated as attorney work product and shielded against unwanted discovery or disclosure. This practice is not nefarious; it is legal and proper and often in the best interest of all parties.
To fulfill the objectives of the assigned investigation, the effective fact finder must have a process. Remarkably, many fact finders and decision makers, regardless of their level of experience or training, have little or no process to work with. Lacking this, the fact finders often spend more time and resources on their tasks than necessary, produce inconsistent results, and create unnecessary liabilities for those they serve. No investigation, regardless of its objectives or scope, can be successful if not properly engineered and driven by process.
Although certain details may differ from incident to incident, the processes used by successful investigations usually have similar attributes. The investigation has meaningful and well-defined objectives; it is properly and lawfully executed; it is fair and impartial; and it produces results that are accurately documented and communicated.
Also, to achieve maximum efficiency, an investigation should unfold incrementally and progressively, in distinct phases. Each phase should be engineered to build on the phase that preceded it. Generally, #MeToo investigations include these phases: assessment; preparation and planning; information and evidence gathering (fact finding), which usually includes the interviewing of the complainant; and verification and analysis, which invariably includes the interviewing of the alleged wrongdoer.
The investigation process should also be open to the possibility that additional complainants may come forward, necessitating the expansion of the initial investigation. Indeed, organizations that are experienced in investigations often anticipate both new and expanded allegations once the investigation of the initial complaint begins. This anticipation helps the organization craft and implement containment strategies and bake them into the overall investigative approach.
For example, one such containment strategy is to lock down the scope of the initial allegations with written statements provided by the accuser. Doing so prevents subsequent embellishment of the initial complaints.
As the investigation progresses, some fact finders put all their focus on the third phase—information gathering and the interviewing of the accuser—and then once they have amassed a rich collection of facts, evidence, and information, they conclude their investigation. This is a mistake, because even the most impressive collection of evidence requires analysis and verification. Without clarifying analysis, those to whom the fact finders report may receive an incomplete result, which may deny them a thorough understanding of the matter.
The four phases of the investigative process give the fact finder the structure necessary to be effective. They also help when it comes to optics; following a phased process helps the fact finder transcend the dated image of a bumbling corporate gumshoe and may elevate him or her to the professional standing of an expert investigator.
Results and Metrics
Fact finders should never play the role of decision maker. To do so is unfair and creates the appearance of prejudice. Sadly, HR professionals make this mistake frequently.
In many organizations, HR is routinely responsible for all internal investigations. In addition, HR either decides the appropriate discipline or makes recommendations regarding such to the decision makers. The criminal justice equivalent of this would be for law enforcement personnel to determine the punishment of those they arrest—clearly, not a wise practice. Similarly, investigative best practices call for all final decision making, as well as the disbursement of disciplinary or corrective action, to be a separate process from fact finding, and not conducted by the same people.
Like most effective processes, the investigative process should generate measurable results. Frequently, organization leaders will measure results in terms of the actionable evidence accumulated. However, the first and most immediate metric should be return on investment (ROI). For example, properly engineered and executed investigations generally produce tangible, measurable results such as the recovery of stolen property or money, the termination of dishonest employees or vendors, or successful prosecution. Other possible measurable results are civil recovery, restitution, damage awards, and successful insurance claims.
However, when investigating a #MeToo allegation, the achievement and recognition of measurable ROI is more difficult. Still, process-driven investigations enable the ability to generate statistical results that can be used over time to measure effectiveness and identify opportunities for process improvement. The ASIS International Investigations Standard (ANSI/ASIS INV.1-2015) identifies this methodology as the Plan-Do-Check-Act (PDCA) model.
When properly used, PDCA provides a repeatable and scalable framework for the conduct of one’s #MeToo investigations. Without process and structure, the investigator has no means to measure results and show value to their customer. Even worse, the process becomes more vulnerable to claims of bias, ineptitude, and discrimination.
Workplace investigations are fraught with liability. Internal investigations, by definition, involve the investigation of people who have a relationship with the organization. Usually, they are people the organization employs or does business with. Many consider themselves “insiders.” As such, they have special rights and expectations. They may carry a sense of entitlement and self-importance.
These considerations add to the complexity of the fact-finding process, and to the reaction of the subject to the investigation’s findings and management’s corrective actions.
Clearly, this path is filled with legal obstacles and challenges. On the other hand, the totality of these complexities gives the properly prepared and equipped employer a decisive competitive advantage. The #MeToo investigator should have at least a working knowledge of criminal, civil, and employment law.
The employer that can efficiently bring an end to workplace harassment, discrimination, or a toxic workplace without litigation or a public relations debacle has a significant competitive advantage over the employer that cannot. Thus, a skilled and savvy investigator can be an asset to almost any organization.
From Consensual to Concerning
Investigations in sexual harassment must address a variety of situations, many of which do not fit the typical #MeToo mold. For example, in one real-life incident, a romantic relationship turned sour, requiring security to launch an investigation.
The participants, whom we will call Christopher and Meredith, met each other at work. He was a regional vice president and she an entry-level analyst. Over a period of several months they began to date, and then entered into a consensual romantic relationship. Christopher started acting jealous and possessive, insisting that he know with whom Meredith talked, exchanged emails, and took breaks while at work. Meredith later described this as romantic obsessive behavior. She decided to terminate the relationship.
Christopher, still driven by possessive feelings, began to stalk her. He started following her home after she left work. Meredith no longer felt safe at work or anyplace else, and she reported her concerns to HR. Pursuant to established protocols, HR immediately reached out to the director of corporate security and requested assistance to investigate Meredith’s allegations. Security, working with the legal department, determined that the matter was sufficiently work-related and that, if true, the claims were actionable. Thus, two investigators were assigned. The security director and HR discussed and defined the investigation’s objectives.
Meredith submitted to a formal interview. She revealed that not only was Christopher constantly monitoring her at work, but he was following her everywhere, even when she was on vacation. Further investigation produced evidence that Christopher used the organization’s email system to communicate threats. In addition, Christopher was using company computers to store inappropriate images of Meredith, which were secretly taken by him without her consent.
Though engaged by HR, the investigation team reported to general counsel, thus preserving the attorney work product privilege. Upon viewing Meredith’s written allegations, Christopher’s threatening email messages to her, and the stored images, counsel advised HR that Christopher’s termination was both appropriate and legally defensible. However, counsel also recommended that Christopher be interviewed and asked to explain his behavior and provide any extenuating circumstances or mitigating evidence.
During the subsequent interview with the investigator and his witness, Christopher conceded his obsession with Meredith and his related behavior. In writing, he agreed to cease this unwanted behavior, resign, and never communicate with Meredith again.
Following the acceptance of his resignation, Christopher left quietly. This case reveals a few valuable lessons. One is that a team approach to #MeToo investigations improves efficiency and results. HR, security, and general counsel all worked together, and had important roles to play. Another is that allowing the terminated employee to leave with his or her dignity intact usually costs nothing and often produces priceless results.
Common Mistakes in #MeToo Investigations
- Using law enforcement vernacular instead of the language of business. Good investigators use the language of their internal customer.
- Seeking employee prosecution as an objective. The decision to prosecute should be made for business reasons only.
- Bending the rules. Rules, policies, and laws provide organizations with structure and order. Failing to obey them is a disservice to the organization.
- Interviewing the accused before properly interviewing the accuser and documenting his or her allegations.
- Permitting or insisting that the fact finder make recommendations regarding corrective action. Leave this to the decision makers.
Eugene F. Ferraro, CPP, PCI, CFE (Certified Fraud Examiner), SPHR (Senior Professional in Human Resources), is chief executive of ForensicPathways, Inc. He is a former member of the ASIS Standards and Guidelines Commission and has been a member of ASIS International since 1987.