Internal investigations need rethinking in the #MeToo era
As I’ve watched the #MeToo movement gain momentum over the past several months, I’ve been thinking a lot about the intersection of #MeToo and the internal investigations space. In particular, I think the current environment warrants an examination of certain aspects of the usual approach to sensitive internal investigations.
First, women should play a significant role in these investigations.
For a bunch of reasons I won’t attempt to examine here, the upper echelons of BigLaw are overwhelmingly male. And the upper ranks of the white-collar/investigations private practice is likewise dominated by (mostly male) former U.S. attorneys and assistant U.S. attorneys. Former federal prosecutors are generally skilled at conducting sensitive investigations. They are viewed as thoughtful, thorough and discreet. They usually exercise good judgment and provide good (if conservative) counsel. They are some of my dearest friends and colleagues.
But the fact remains that there is no shortage of Y chromosomes among this group of lawyers.
Allegations of workplace sexual assault or harassment that may have once been handled quickly and quietly increasingly have criminal or brand-threatening implications. As a result, companies are reaching out to white-collar attorneys to lead investigations. Given the prevalence of men in the white-collar investigations space, it is especially critical to meaningfully include women in these investigations. The good news is that although we have a long way to go, there are many capable women to answer the call.
I’m not suggesting that men cannot lead such investigations. They can. But it’s no secret that a diverse team can provide more varied perspectives and more comprehensive assessments of credibility. Indeed, recent studies demonstrate that diverse teams make better decisions than noninclusive teams. Employment counsel who have conducted investigations of workplace harassment for decades know the importance of having women in significant leadership roles. We need to take care not to lose that perspective as former prosecutors are hired to conduct more of these investigations.
Inclusive investigation teams also combat potential perception and bias issues. For example, many people would assume (fairly or unfairly) that male lawyers are not as attuned to the labyrinth of unspoken gender biases, social structures and power dynamics that women must navigate every day. The exclusion of women from teams investigating claims of harassment and abuse can fuel the perception of a “glass houses” problem, or the perception that men who behave badly can rely on an “old boys’ network” to stay in power. Meaningful participation by women can pre-empt such criticism while strengthening the quality of observations, analysis and decision making.
Second, we need to think critically about the impact of skepticism in these investigations.
Skepticism is a fundamental tenet of investigation. We frequently interview witnesses and look for inconsistencies between their stories and documents, or between their stories and the stories of others. We confront these same witnesses with the inconsistencies we’ve uncovered to get at the truth.
Even if our approach requires skepticism, our clients are concerned about setting the right tone and having the right processes to facilitate reporting. We already know from decades of sexual assaults going unreported that women are hesitant to report. While more women feel emboldened to report misconduct right now, there are thousands more who choose not to for many different reasons. A few big ones:
1. They’ve seen victims put through the wringer time and time again.
2. They’ve seen bad behavior by powerful men swept under the rug/ tolerated /excused time and time again (e.g., Matt Lauer, Harvey Weinstein, Louis C.K., Mario Batali).
3. They are concerned about the career consequences of reporting.
We have to think about how to reconcile our objective search for truth with the clients’ need to protect vulnerable accusers. In the midst of all of this, we cannot lose sight of our ethical obligations. Our approach must be informed by our engagement. Are we being asked to prepare a vigorous legal defense or conduct an independent investigation of the facts? In either role, an open mind and fair analysis will be crucial. And where does due process for the accused fit into all of this? Principles of fairness and process remain critical to the work we are doing.
While there are no easy answers or quick fixes, organizations can start by showing—not just saying—that they take allegations of sexual abuse and harassment (both new and old) very seriously. This includes ensuring that there are robust policies and processes in place to create a safe and supportive environment for employees to report harassment and abuse, including multiple and anonymous channels for reporting. The importance of setting the right tone and taking affirmative steps to prevent and detect abusive behavior cannot be overstated. Complacency is an organization’s worst enemy when crisis looms.
These issues are increasingly gaining the attention of boards of directors, which means compliance, legal, and HR professionals must be prepared to thoughtfully and proactively address them. As part of a thoughtful and proactive approach, organizations must consider the existence of “open secrets” regarding bad behavior that may have been tolerated historically. They must also discard any notion that being powerful, likable, or important can justify keeping an abusive person around. Taking a fresh look at an organization’s policies, processes and practices may not only help uncover past bad behavior, but also prevent future misconduct by sending a clear message that it will not be tolerated.
Third, we need to examine the relative weight we assign to courts of law versus courts of public opinion.
I’m not suggesting that public relations doesn’t already play a significant role in high profile internal investigations—it does. As lawyers, though, we sometimes focus on the legal issues and treat public relations issues as separate and sometimes secondary. The conventional wisdom among many lawyers is that we should advise clients to avoid apologizing, admit nothing and make no comments. That can be good advice.
It can also be terrible advice.
Companies can be indicted and they can be convicted, but they can’t go to prison. That means corporate legal liability is usually measured in dollars. Legal counsel in this environment must not forget that bad PR can be just as costly, if not more, than a fine or legal settlement. Our clients rarely see the inside of a courtroom, but they often appear on the front page or home page of our favorite papers. Yet, lawyers continue to make statements and write letters that focus on the legal aspects of an investigation, sometimes to the exclusion of the human aspects. Such an approach can be not only tone deaf, but also potentially more fiscally damaging to an organization than an admission. We need to seriously consider the intersection of legal advice, public relations and good judgment in these matters.
For starters, the clients, their attorneys and their public relations advisers must be conscious about striking the right tone by asking basic questions like: Will the communication be perceived as overly defensive? Would a potential victim be less likely to report abusive behavior after reading this? Has a woman laid eyes on this draft, and have her opinions been heard?
Fourth, we may need to rethink traditional tools used to resolve allegations of assault and harassment.
Prompt settlements and nondisclosure agreements are long-favored legal tools to spare organizations from the cost, disruption and exposure of public litigation. But we should revisit their effectiveness in the context of sexual harassment and abuse allegations. Recently, several women have come forward with allegations of sexual abuse in high-profile incidents in apparent violation of prior NDAs. I can only imagine the backlash against a company that would seek to enforce or punish the violation of an NDA in this environment. Nor can organizations safely assume that old allegations of sexual misconduct are “resolved” based on an NDA. A lot of the current news we’re seeing is actually old news, and even previously public issues are being re-aired and given more publicity.
Organizations that have traditionally sought prompt settlement of allegations of sexual harassment and assault, including NDAs, may now find themselves publicly accused of facilitating a cover-up or trying to keep victims silent. It’s happening already. Nondisparagement clauses are vulnerable to similar criticism. This changes the risk/benefit calculation of pursuing a quick-settlement strategy.
At a minimum, organizations may want to consider more narrowly tailored NDAs that keep key terms of a settlement confidential without preventing an accuser from publicly telling her story. As things shake out, the settlement and broad NDA combo may very well remain the preferred means of resolving legal liability relating to workplace harassment and abuse, but it’s no silver bullet, and we shouldn’t treat it as one.
In conclusion, many organizations (and their lawyers) are just beginning to grapple with the potentially seismic cultural shift accompanying the #MeToo movement. No one can predict the full impact of this moment for corporate culture or internal investigations, and even the most conscientious organizations are likely to have missteps along the way. Despite the uncertain environment, we cannot ignore this sea change in favor of business as usual.
Jade Lambert, a partner in King & Spalding’s Special Matters & Investigations practice, represents individuals and corporations facing government investigations and enforcement actions. She is based in Chicago.
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