Should You Look Outside Your Organization to Investigate a Sexual Harassment Complaint?

December 22, 2017 - Pierce T. MacLennan

A recent article in The New York Times questioned the propriety and effectiveness of a sexual harassment investigation conducted by a company’s Human Resources Department.

The article noted the “inherent conflict of interest” at play because HR departments “while officially responsible for fielding employee complaints, also work for a company that faces potential liability.” The authors’ conclusion was that “[t]he result can often be that human resources personnel are more inclined to suppress allegations than get to the bottom of them.”

While I would question the above characterization/conclusion, and my own experience with HR-led internal investigations is that the great majority of HR departments conduct fair, honest, good-faith investigations, the article raises an interesting issue: Should HR departments more often look to outside consultants and law firms to conduct the investigations? Below are some considerations for your organization the next time you receive a sexual harassment complaint.

  • Hiring a third party may take the pressure off HRThe New York Times article noted that conducting investigations into star performers or powerful members of the organization can be hazardous to the investigators’ career. In other words, HR may be fearful of retaliation if they advise management that discipline should be taken against a harasser. In addition, outsourcing the investigation would allow HR to spend their time on other workplace issues. This is especially true when the alleged offender is higher in the company hierarchy than the HR professional.
  • Perception is often reality – Hiring an independent third party has the perception (and hopefully reality) of a completely fair, unbiased assessment of the allegation(s). This matters a great deal in both the court of public opinion and in legal proceedings. Also, the alleged victim is often much more comfortable with an independent third party investigating the claim. My own experience conducting these investigations is that the accuser feels that the organization is taking the matter seriously when they pay an outside group to investigate.
  • Sometimes Attorney-Client Privilege Will Apply – Depending on the circumstances and the issues involved in any subsequent litigation, while the findings and the information discovered during the course of the investigation are likely discoverable, separate legal opinions and recommendations about what steps to take next will more likely be protected from disclosure due to the attorney-client privilege if a lawyer conducts the investigation. On the other hand, that lawyer may become a witness in subsequent litigation, so you may want to hire someone other than the lawyer you would want to defend you in that lawsuit.
  • Understanding of Legal Requirements – HR personnel must wear a lot of hats – oversee payroll, mediate workplace disputes, recruit and retain talent, and handle a myriad of other workplace issues. Thus, it can be difficult to keep up with employment laws and regulations. However, experienced consultants and employment lawyers often have a unique grasp on the legal elements of a workplace investigation, i.e., who should be interviewed, what precise questions should be asked, etc.
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