The process is familiar: A complaint or allegation is lodged or publicized. Calls for action are made. The accused party makes a statement and announces plans to launch an investigation.
That was the case earlier this month when McDonald’s announced it would look into sexual harassment claims brought forward by its employees. And when the MLB released a statement saying it would investigate claims of inappropriate behavior by former Cleveland Indians pitching coach Mickey Callaway. As well as when New York Gov. Andrew Cuomo referred sexual harassment allegations brought against him by multiple women to the state’s attorney general.
These internal and third-party investigations are generally designed to determine the validity of serious allegations in the workplace.
But there are many ways they can be invalidated or illegitimized, according to employment law experts and workplace investigators. Some even say companies and organizations sometimes conduct sham investigations that might amount to nothing more than a PR stunt.
Here’s what we learned:
Most workplace issues don’t get reported because of fear of retaliation.
Oftentimes an investigation is launched when an employee contacts an HR rep or reports an allegation to management. That’s the case for about 90% of employers, according to Jared Pope, HR attorney and founder of Work Shield, an employer strategy company that conducts workplace investigations.
Still, about 75% of workplace issues don’t get reported because of a fear of retaliation or other negative repercussions, Pope told Insider.
“Members of management teams have an obligation to ensure that employee complaints are taken seriously and properly investigated to bring a halt to misconduct and apply appropriate remedies,” said Natalie Ivey CEO of HR development firm Results Performance Consulting and author of “How to Conduct Internal Investigations.”
Other times, investigations sprout after allegations arise in media reports, such as Insider’s report that found top male leadership at United Way had engaged in misogyny for decades.
“It’s a toss-up,” Pope told Insider. “Most issues don’t get reported due to fear and those that get covered in the media are those that were once raised to a supervisor, manager, or HR (human resources), but not acted upon or dealt with appropriately in a prompt and reasonable manner.”
Just “a fraction” of companies actually follow up on anonymous allegations, said Juliette Gust, president of Ethics Suite, a workplace misconduct reporting channel.
The goal of all investigations is to determine the credibility of misconduct claims. But credibility is hard to quantify and depends on a lot of factors like how public and exhaustive the results are, according to experts who spoke with Insider. And the investigation’s credibility also depends on whether companies and organizations take allegations seriously as soon as they are disclosed.
Additionally, employers and third-party investigators can often employ different protocols, leading to inconsistency in how investigations are carried out.
There is no one way to conduct an investigation.
But experts generally agree that a valid investigation must meet the following parameters:
- There must be a known system in place that employees feel able to use to come forward with any allegations.
- Investigators must quickly collect and preserve any physical and digital evidence that pertains to any allegations.
- Investigators are expected to interview all complainant(s), witnesses, and subjects.
- After collecting evidence, investigators must analyze it and reach reasoned conclusions.
- The investigator must be impartial and well-trained.
“While there are no nation-wide codified standard practices governing how internal workplace investigations are conducted, there are standard practices,” said workplace investigator Lorene Schaefer.
Such standards often derive from guidance from the Equal Employment Opportunity Commission, the agency that investigates workplace sex discrimination and retaliation.
For publicly traded companies, the Justice Department has a document outlining the steps to carry out a proper investigation, Gust of Ethics Suite said. Private companies, however, don’t have a single method to turn to. And variables like geographic areas and type of entities can also alter the course of an investigation and its results.
“So while there are some standards for preparation, collection and analysis of evidence, reaching conclusions and presenting findings — there are going to be some differences in how investigations are conducted even within different parts of the same organization because of those variables,” Ivey told Insider.
There’s an argument in favor of enforcing set standards to conduct an investigation. Pope, for example, said a standard “by which to judge others” would be helpful and a solid step in allowing “employee’s voices to be heard” more efficiently.
Gust told Insider she believes it would “not be realistic to expect all organizations to adhere to the same codified set standard for investigations.” Different organizations and companies, she said, have different resources and skillsets, which complicates the notion of a set standard across the board.
Ivey said it’s far more important that a well-trained investigator handles the case than it is for there to be a codified system in place.
Without well-trained investigators who are able to remain impartial, collect documents effectively, and analyze evidence, the results of an investigation might not be complete or present an accurate portrayal of internal affairs.
In the event that an investigation is carried out unjustly or without adhering to these general standards, afflicted parties can often seek recourse in state and federal courts, Schaefer said.
The ‘#MeToo scrutiny’ intensified workplace probes.
According to Schaefer, boards of directors across the country felt “intense scrutiny” resulting from the #MeToo movement, which galvanized a culture of speaking out against sexual abuse and misconduct.
The “scrutiny” came as investors alleged “Board of Directors were aware of executives’ alleged harassment and misconduct and failed to take action or disclose it,” Schaefer said. In nonprofits, the same pressure ramped up.
In turn, boards of directors began to more heavily question whether they provide sufficient oversight “to mitigate and manage claims of sexual harassment, gender discrimination, retaliation,” she said.
“This #MeToo scrutiny of boards of directors and their response to the #MeToo movement is not going away,” Schaefer said. “If anything, I predict the spotlight of scrutiny is going to get brighter and more intense with more investor/donor activism.”
A 2020 report published by the National Women’s Law Center and the TIME’S UP Legal Defense Fund found that 72% of people who experienced harassment in the workplace were retaliated against when they spoke up. Of the people surveyed who reported the harassment, nearly two in five said their perpetrators had not been held accountable.
United Way in February released the results of an investigation into allegations of misogyny and retaliation from former employees.
Three women who spoke up about sexual harassment said they faced retaliation for doing so in a November report from HuffPost, and more former employees came forward to Insider in December with allegations that the nonprofit’s culture of misogyny spanned decades.
The investigation carried out by a third-party law firm at the behest of United Way Worldwide found “the employment decisions made with respect to the three employees at issue were found to be based on legitimate, non-discriminatory, and non-retaliatory reasons.”
Neither United Way nor Proskauer Rose, the law firm that conducted the investigation, returned requests for comment asking whether the investigation hit the standards outlined by these experts.
Shortly after its release, United Way’s CEO Brian Gallagher resigned. But the women who had come forward with the allegations to Insider said they were never contacted to participate in the internal investigation.
That could be for several reasons, investigators said. An organization might deliberately choose not to contact former employees because they “may be in an adversarial position against the company,” Gust said.
It could also just be a public relations stunt, Pope said.
Workplace investigations that do not contact complainants generally have little merit and are “suspicious,” Merrick Rossein, an employment-law consultant and professor at the CUNY School of Law, told Insider.
“If the people who made the complaints have not been interviewed by this third party, then you can say there was no real investigation,” Rossein added.
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