Well, not really Poirot (although that probably got your attention).
And not Robert Mueller.
Far more common, indeed widespread across corporate America these days, are those independent investigations legally required in response to employee complaints of discrimination, sexual harassment and other types of corporate wrongdoing, as well as Title IX investigations in academia stemming from complaints of discrimination and harassment.
There are hundreds, probably thousands, of these investigations proceeding as you read this. They result in a written report to management of the company or academic institution involved, along with recommendations for the specific remedial action for the entity to take if some or all of the allegations were found by the investigators to be substantiated.
As executive employment lawyers, we spend the majority of our professional lives negotiating our clients’ new or renewal contracts as well as their termination packages.
But even our boutique firm has been repeatedly called upon to become involved in harassment investigations. We have represented witnesses, companies, complainants and alleged harassers, and have also conducted these investigations on behalf of the employer.
Until a few years ago, many lawyers suspected that management wanted these types of investigations “rigged” in favor of reflexively exonerating any executive who was key to the business from charges of impropriety.
Today, the #MeToo movement has highlighted the importance of an honest, thorough and impartial investigation, and the stakes have become too high for employers to protect any given executive, no matter how senior or important to the business (e.g., see Les Moonves, Steve Wynn and “Papa John”) if the investigation reveals that the executive actually did something wrong.
Indeed, some feel that the danger now may lie in the opposite direction: a rush to a judgment of wrongdoing which reflexively protects the employer (and its lawyer and/or investigator) by removing the executive when some lesser penalty might be more appropriate than termination in the particular circumstances.
How to keep these investigations scrupulously objective and fair, while protecting whistle-blowers as well as the company or academic institution involved, still accord sufficient (if inevitably imperfect) due process to the person complained of, and, where warranted, craft appropriate remedial action? And why do these investigations matter?
To answer the latter question first, they matter a great deal. If conducted properly, with impartiality and independence, and if they result in honest and thoughtful conclusions and recommendations for remedial action which the employer scrupulously follows, they provide a full or partial defense to a charge of legal willfulness on the part of the employer which results in those headline-grabbing punitive damage verdicts.
In addition, by “sanitizing” the workplace from any taint of individual harassment or discrimination, let alone a charge of a “hostile work environment,” it is less likely that an eye-catching and costly lawsuit will be filed, or, if filed, less likely that it will be sustained.
The keys to conducting such investigations have been extensively written about. Some of the most important are:
1. Independence. Many of these investigations, probably a majority, used to be conducted by a company’s Human Resources department or in-house counsel. Today, any serious allegation should be investigated by an outside investigator or law firm who cannot be accused of slanting the results one way or the other.
2. Fairness (i.e., impartiality). This means that the deck is not stacked against either the complainant or the executive or other employee complained of, and that the facts are followed wherever they may lead.
3. Practicality. Human beings have yet to develop a truth recognition machine which is perfect, particularly in the context of human relations. Additionally, the investigators in these situations usually don’t have subpoena power. Testimony is generally not taken under oath. Important witnesses may no longer be employed by the company, or otherwise available.
That said, independent investigators, especially lawyers, are used to making careful and reasoned judgments about witness credibility, i.e., who is telling the truth? When in doubt, Louis Nizer’s Rule of Probability (brilliantly discussed in his still-readable classic My Life in Court) offers a good framework for coming to a conclusion as to the likelihood of any sequence of factual events.
4. Due Process. Similarly, although it may not be strictly mandated, a successful investigation, regardless of the outcome, ordinarily rests on a foundation of providing as much “due process” to everyone involved in the investigation, whether complainant, target, direct witnesses or other executives who add context and nuance. For this reason, anyone involved in any investigation under our supervision is welcome to be represented by counsel unless his or her attorney becomes obstructive to the process (although you might not believe it, attorneys have been known to be obstructive!) Counsel cannot be allowed to block the flow of information.
5. Remedial. These investigations do not happen in a vacuum, and their results are not an intellectual exercise. Their purpose is to make certain that, if the complaint is substantiated in whole or material part, something is actually done about it. In the unhappy event of a subsequent lawsuit, the employer who initiated and paid for the investigation should be able to point to the specific steps it was advised to take — and did take — as a result of the investigation. Failure to do so could cost the employer, whether a commercial, for-profit entity or a not-for-profit organization like a college or university, big bucks when it comes time to instruct the jury on whether the employer properly met its responsibilities.
6. Cost-efficient. It won’t surprise you to learn that this has become a bit of an industry for a host of law firms and other providers of these investigative services. Accordingly, common sense dictates that these investigations have to be cost-effective. Not all complaints can bear the same weight of investigation. As in every other professional situation, it is important for the client to be certain that the investigators are not going beyond what is fairly required.
7. Appropriately Sensitive. A harassment investigation is by its nature concerned with sensitive issues. Witnesses as well as victims of harassment and persons being accused are likely to be emotional, embarrassed, ashamed or angry. The investigator has to remember that everyone involved is a human being who deserves to be treated with dignity during the proceedings.
I don’t pretend to have the powers of Agatha Christie’s legendary Belgian detective, with his finely-shaped mustaches and “little grey cells.” However, if you or any of your colleagues, friends or executive acquaintances find themselves caught up in any such investigation or have a legitimate complaint that should provoke an investigation, or, if you are connected with a business which should protect itself by having independent counsel conduct such an investigation, we can advise them knowledgeably and thoughtfully.
Happy Spring!
George Birnbaum
