Investigations Post #MeToo

Employers, employment attorneys and investigators must consider several factors when they outline a process for a sexual harassment investigation. With respect to scope, determine if the harassment claims will be separately investigated even if there is some overlap with other kinds of claims. Key factors are whether the alleged harasser is in the same work group as the complainant and, if more than one individual was allegedly subjected to harassment, whether they are all in the same work group.

In light of increasing demands for transparency, consideration should be given to whether or not counsel will lead the investigation to assert a claim of privilege. The person assigned to investigate workplace harassment claims should be experienced, known for independence and integrity, and present well as a witness. If no one within the organization fits the bill, consider the use of an outside investigator who has experience testifying. Consider whether to have the investigator simply provide a report or make recommendations about action that should be taken. If recommendations are made and not followed, even for sound reasons, the internal disagreement can be a point of contention in litigation.

Every situation and employer is different, and there isn’t a “one size fits all” solution that’s appropriate. There is no guarantee that merely following a procedure will result in a flawless investigation. However, having a process that requires consideration of key factors will be useful in developing a useful and clear record.