Transparency in Investigations
The times are changing.
Before the #MeToo wave hit, employers typically initiated investigations into harassment complaints with the goal of maximizing information with minimal negative impact. This often translated into efforts to be as discreet as possible throughout the process by minimizing the amount of information shared and the number of people who read the investigation report.
Now, however, many employers are confronted with demands for transparency from their own employees, customers, and even the public. There is a cry for more information, a call for public accountability, and a desire to avoid any more “cover-ups.” To show they take these issues seriously, and to avoid boycotts, walk-outs, or further reputational harm, employers are increasingly responding in kind. There are countless public examples of this for your leisurely reading. Take one for example – NBC Universal’s 2018 investigation into allegations of inappropriate workplace conduct by then-Today Show anchor, Matt Lauer. In May 2018, NBC Universal released a report of its findings to employees and the public, substantiating claims against Lauer, exonerating upper management, and offering recommendations to improve the company’s complaint reporting channels. The report also contained information about how many witnesses were interviewed, and summarized witness viewpoints for the reader.
Traditionally, employers sought discretion for many reasons. It helps to protect the privacy of the parties to an investigation, who are often asked to reveal sensitive or embarrassing information. It helps ensure more candor from witnesses, who are asked to share information and views about their colleagues and, sometimes, their supervisors. Discretion also helps avoid unnecessary distractions from the company’s work and objectives.
But, like all things, there is a con for every pro. An unfortunate consequence to discretion is that it can engender suspicion and mistrust. Without information, employees – and in some cases, the public – might assume the employer is not taking action in response to complaints. These individuals may ask, “Why would employers hide behind the attorney-client privilege or confidentiality if there is not something to hide?”
We understand there may be good reasons to release the full report. There are, however, several other ways to increase transparency and repair credibility that do not involve releasing full, detailed reports. First, employers can ensure that a well-resourced complaint intake and resolution process is in place, and regularly disseminate the process company-wide, so employees feel comfortable that complaints of harassment will be addressed. Employers can also consider providing back end statistics for the year, advising employees – generically – the number and types of complaints, whether the claims were substantiated or not, and the types of resolution. Additionally, when an investigation involves a high-ranking executive, employers should consider retaining an independent investigator through outside counsel. The public may have more confidence in outside investigators, particularly when investigating high-ranking employees. In the event that complaints of harassment are substantiated, employers should commit to taking swift action to correct the problem and prevent further harassment. Lastly, it may be useful to release some information following a highly publicized investigation.
Options for release of information. An employer may consider the following options for the release of information upon the conclusion of the investigation.
- No report
An employer may choose not to release any portion of the investigative report. However, in this case, the Complainant and the Respondent are still entitled to (1) notification that the investigation has concluded and (2) a summary of the findings. This may be verbally or in the form of a letter, stating whether the complaint was “substantiated” or “unsubstantiated.” This option shows the parties their positions were taken seriously and reduces the risk of the unauthorized release of confidential information. The drawback is that participants and the public may doubt the thoroughness of the investigation without a released report.
- Highly redacted or abbreviated report
An employer may decide that it is prudent to release the official investigative report. In a highly publicized investigation, this option runs the risk of unnecessarily identifying witnesses and other sensitive information. With this in mind, an employer may choose to redact witness names and other personally identifying information. Alternatively, many employers choose to release an “Executive Summary of Findings.” An Executive Summary often focuses only on the methodology and findings. Because the good faith process of an investigation is absolutely critical to reaching reasoned conclusions, the Executive Summary should include the procedural background, number of witnesses interviewed, documents reviewed, admonitions given, and, among other things, the applicable standard of evidence. At a minimum, the findings should be outlined, but consider also including the full analysis upon which the investigator relied to reach the findings.
- Full Report
The full investigative report is a comprehensive document that is typically given only to outside counsel and the decision-makers, unless compelled by law (for example, a subpoena or Public Records Act request) or otherwise strategically determined by defense counsel. This is because the full report usually contains a summary of witness statements, and other information that is useful to the decision-maker, but goes beyond what the parties need to know. There may be reasons to release it under certain circumstances. On one hand, a full report can be helpful in providing the public with complete assurance that all procedural and substantive steps were taken, and a thorough analysis of credibility was conducted. However, releasing such reports may also have a chilling effect on candid testimony by witnesses, who are fearful of being in the public eye regarding matters of harassment. Further, it may put the parties at risk for later claims of retaliation.
Employers have long prioritized discretion over openness in their internal harassment investigations. In the post #MeToo era, however, calls for transparency from employees, customers and the public, generally, have forced employers to shuffle their priorities. It can be difficult to satisfy these demands, but there are a number of ways employers can do so while protecting privacy and limiting distractions.