Ensuring a Fair Investigation of Harassment and Discrimination Claims
On December 6, 2017, Time magazine named its “Person of the Year”, “the Silence Breakers”, those who came forward to report stories about being victims of sexual harassment in the workplace.[1] Since then, allegations of sexual harassment and discrimination increasingly have been levied against political figures, Hollywood and Broadway actors and directors, celebrity chefs, musicians, opera house directors, media industry executives and news anchors, university professors, high-profile doctors, scientists, and sports figures. These cases often have become so explosive organizations worry not only about the legal consequences of the allegations, but also the effect on public perception the company’s response can cause.
In the face of this firestorm, Governments enacted revival statutes for filing claims long after incidents occurred and issued specific requirements for training and reporting procedures. Employers responded by updating anti-harassment and discrimination policies while simultaneously enacting training for staff. While these measures are critical steps to prevent and address sexual harassment in the workplace, equally critical is the need for employers to establish procedures for addressing harassment complaints when they are made. Addressing complaints is particularly important because Title VII of the Civil Rights Act of 1964 and other state statutes impose liability on employers who either knew, or should have known, of sexual harassment but failed to conduct a prompt and thorough investigation.[2]
A business conducting an inadequate workplace investigation of harassment complaints risks damaging both its finances and its reputation. An improper investigation can sabotage an employer’s case and create the need for a costly settlement, in addition to creating bad public relations for the organization.[3] For example, pulled from the small minority of such matters which have found their way into the public,[4] in September 2021, San Jose State University paid $1.6 million in settlement of claims after the U.S. Department of Justice concluded it failed to adequately investigate reports of sexual harassment against a prominent University athletic trainer.[5] In 2024, Red Robin agreed to pay $600,000 to four (4) former employees to settle an EEOC lawsuit stemming from the Company’s poor response to a single line cook’s actions.[6] If investigated in a timely manner, these accusations might not have grown to the point of requiring these levels of settlement. These cases highlight the need for an employer to uncover the truth of a harassment claim when faced with one.
Although corporate human resources personnel may be capable of conducting a legally sufficient investigation, there are frequent claims of an inherent conflict of interest in having internal human resource professionals investigate alleged harassment by their own employees. Human resource departments are responsible for fielding employee complaints, but they also work for the employer facing potential liability. As a result, some critics allege a conflict “can often be that human resources personnel are more inclined to suppress allegations than get to the bottom of them”.[7]
These potential issues go beyond hypothetical, as courts have agreed there may be conflicts with an internal investigation. A $1.5 million jury verdict was awarded against IBM after a judge granted an employee’s motion to preclude introduction of an internal human resources investigation report deemed too one sided and not impartially conducted. The Court noted the investigation was not conducted by a “neutral party”, but rather a human resource professional attempting to exonerate IBM as opposed to determine whether the employee was treated fairly.[8]
Similarly, in Pollard v. E.I. DuPont de Nemours Co., an internal investigation of harassment allegations was determined to be inadequate when it relied on “yes” or “no” questions. The Sixth Circuit Court of Appeals held such a manner of questioning was not designed to elicit whether the plaintiff was, in fact, being harassed.[9]
To avoid problems that accompany handling the investigation internally, the answer may not be as simple as hiring an outside firm. For example, outside law firms regularly hired by the employer may not pass muster as independent in the eyes of the government, the judiciary, the public, the press, and stakeholders. A lawyer who knows or works closely with an employer may lack the appearance of impartiality critical to conducting investigations.[10] Indeed, one way to avoid claims of bias in the face of a harassment or discrimination allegation is to avoid selecting an investigator who knows either party to the complaint.
When faced with a harassment or discrimination claim, an organization should consider whether using an independent firm to conduct an investigation into the merits of this particular claim would be preferable. In Beauvais v. City of Inkster, a District Court in Michigan held the hiring of an independent firm to conduct an investigation of a sexual harassment complaint was a key factor in granting summary judgment to the employer on a hostile work environment claim.[11]
Indeed, there are several advantages to independent professional neutrals conducting investigations. In certain cases, only neutral professionals will have the standing and gravitas to respond to scrutiny from the public, the press, the government, shareholders, and stakeholders. Following the wave of media executives accused of sexual harassment, news organizations were loudly and publicly criticized for failures to use independent investigators to investigate claims.[12]
Particularly when the accused is a central entity figure, an institutional lawyer may be accused of being tainted by his or her long-term economic relationship with the company. Hiring an independent, third party has the advantage of signaling a fair, unbiased assessment of the allegation is being conducted, which matters a great deal in legal proceedings and the court of public opinion.
Another consideration favoring the selection of neutral professionals to conduct an investigation is an increased likelihood accusers and witnesses will be forthcoming with information. The hesitation on the part of accusers to come forward and speak with management about a claim of harassment often reflects the reality: accusers in some work environments do not trust management with their harassment claims and do not feel safe speaking up, fearing retaliation. For example, no complaints concerning the Senior Vice President of News at NPR News were brought to the President and CEO, even after a direct solicitation for such complaints. It was only after the Washington Post published an accusation against the Vice President others came forward with additional allegations.[13]
Lawyers of plaintiffs and would be plaintiffs may also be distrustful of management aligned investigations, resulting in advice to their clients to limit or completely withhold cooperation. For example, Ari Wilkenfeld, a civil rights attorney for former NBC correspondent Linda Vester, refused to permit his client to participate in an internal investigation of Vester’s claims, which was overseen by two (2) prominent firms associated with the employer. We have directly observed a well written investigation report, which appears to be professionally conducted, rejected by the complainant’s representation solely because of the outside firm selected.
While the Plaintiff or would be Plaintiff’s non-participation might be unwise and cause the investigator to reach a conclusion without being able to hear firsthand from the individual raising the claim, it also penalizes the employer as it is unable to make a fair assessment of a potential claim. Thus, it serves both sides in the short run – during the investigation process – and in the long run – so the conclusions from the investigation are credited – to have the investigation conducted by a person or organization with the independence, stature, and reputation to attain all the relevant evidence and then make recommendations all parties and stakeholders will tend to credit because of its actual and perceived fairness.
Using a neutral investigator signals to all interested parties the employer takes concerns of misconduct seriously, wants to determine what really happened, and is willing to abide by the evidence produced. With no preconceived impressions of the parties or the subject, an expert neutral investigator will have the credibility and objectivity required to withstand inquiry should the matter reach litigation.
Lastly, critics have called out the apparent inequities in the prosecution of sexual harassment claims depending on the accused’s employment status, resulting in a world in which employers are sometimes perceived to tolerate sexual harassment and other misconduct by top-level employees, but aggressively police inappropriate behavior by the rank-and-file.[14] Using neutrals to investigate harassment and discrimination allegations helps ensure employers achieve more balanced results when dealing with harassment allegations against employees in disparate employment positions. While not every investigation requires the retention of a neutral organization, in certain cases, especially those with the greatest public scrutiny, only the imprimatur of a professional neutral will fit the bill.
Recognizing the foregoing issues, Scheinman Arbitration and Mediation Services (“SAMS”) has created the capacity to conduct complex, confidential, and time sensitive investigations. SAMS conducts independent, neutral fact-finding, and workplace investigations on behalf of employers, employee organizations, community and religious organizations, and consumer classes in a wide variety of industries and workplace environments. SAMS has extensive experience conducting investigations concerning allegations of racial, sexual, and gender-based harassment and discrimination, as well as violence toward children and patients, and educator abuse. The practice includes the investigation of harassment cases based upon religion and national origin as well as discrimination based upon age, race, gender, sexual orientation or national origin. We also conduct investigations of whistleblower claims. For more information about our neutral services, please visit our website at scheinmanneutrals.com.
Scheinman Arbitration and Mediation Services
Martin F. Scheinman, Esq
Barry J. Peek, Esq.
Julie A. Torrey, Esq.
Patrick J. Mehler
Joshua Katz, PhD
322 Main Street
Port Washington, New York 11050
516-944-1700
[1] Stephanie Zacharek, et. al., Time Person of the Year: The Silence Breakers, Time, December 6, 2017.
[2] See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
[3] Ethan Spielman, How to Properly Handle a Workplace Investigation, Business News Daily, January 31, 2018.
[4] There are few settlements publicly available since most are resolved or decided privately due to the wishes of both parties. We have participated as mediators or arbitrators in hundreds of these cases, the forums for the great majority of them.
[5] U.S. Attorney’s Office, Northern District of California, Justice Department Reaches $1.6M Agreement to Remedy Title IX Violations at San José State University, September 21, 2021.
[6] U.S. E.E.O.C., Red Robin to Pay $600,000 in EEOC Sexual Harassment Lawsuit, April 22, 2024.
[7] Noan Scheiber and Julie Creswell, Sexual Harassment Cases Show the Ineffectiveness of Going to H.R., The New York Times, December 12, 2017.
[8] Castelluccio v. International Business Machines Corp., 2014 WL 3696365 (D. Conn., July 23, 2014).
[9] Pollard v. E.I. DuPont de Nemours Co., 213 F.3d 933, 942 (6th Cir., 2000), rev’d on other grounds, 532 U.S. 843 (2001); see also Arthur L. Raynes and Brian Byrne, Conducting a Workplace Investigation After a Sexual Harassment Claim, New Jersey Law Journal, July 13, 2018.
[10] Judy Greenwald, Proceed Cautiously With #MeToo Harassment
Investigations, Business Insurance, March 13, 2018.
[11] 2017 U.S. Dist. LEXIS 185577 (E.D. Mich., Nov. 9, 2017).
[12] Brian Flood, NBC News Execs Roasted for Refusal to Launch Independent Investigation Following Matt Lauer Sex Scandal, Fox News, December 11, 2017.
[13] Rebecca K. Lee, Beyond the Rhetoric: What It Means to Lead in a Diverse and Unequal World, Stanford L. Review (June 2018).
[14] Rachel Arnow-Richman, Of Power and Process: Handling Harassers in an At-Will World, 128 Yale L.J.F. 85 (2018).
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Martin F. Scheinman, Esq. , Barry J. Peek, Esq. , Julie A. Torrey, Esq., Patrick J. Mehler, Joshua H. Katz, PhD