- Ripped From the Headlines, Part II: Three Investigation Lessons to Learn from Recent Scandals
- September 23, 2016 | Author: Patricia Chavarria Perez
- Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - San Diego Office
Many articles on workplace investigations offer tips on the nuts and bolts of the process and step-by-step guides on conducting a fair and thorough investigation. But the “how to” is the floor, not the ceiling, of what companies should be doing, namely having protocols in place for receiving, addressing, investigating, and resolving complaints. Here are some learning lessons from a number of controversies in the news of late.
Create an Atmosphere That Encourages Reporting and Participation
One common issue is a company’s failure to create an atmosphere of truth-telling. In one recent case involving a Baylor University investigation, the investigators found that incidents of misconduct were underreported, particularly when the allegations were against a member of the football team. Worse, the report indicates that even when misconduct was reported, there was often a culture that discouraged complainants from moving forward with their complaints. That report states, “[t]he University failed to conduct sufficient inquiry into individual barriers to participation, which in some instances were directly related to barriers created by conversations with University personnel that discouraged, rather than encouraged, participation in the University’s Title IX processes.”
How does this translate to corporate settings? If employees feel that they cannot safely raise concerns, then no amount of training on how to properly conduct investigations will bring about a crisis-free environment. If employees feel that they would rather stay quiet and endure bad behavior than report the behavior and have nothing happen (or worse yet, be exposed to retaliatory behavior), then well-executed investigations will do little-if anything-to improve the work environment (and thus improve morale, productivity, loyalty, and profitability).
The lesson for companies is that conflict resolution policies and training are insufficient. Having a policy that outlines various ways that employees can raise complaints and that guarantees that complaints will be fully and fairly investigated is a good start, but it isn’t the only step employers can take to create an environment in which employees feel comfortable reporting issues and participating in investigations. Instead, companies should strive to have policies and procedures that are part of a larger goal of creating a work environment that is respectful, encourages open and honest dialogue, strives for camaraderie and cooperation, and solves conflict to improve the workplace.
Eliminate Separate and Unequal Systems
The Baylor report states that the university had a separate and markedly unequal way of responding to and resolving complaints of sexually-charged behavior. For faculty, staff, and students in the general population, the complaint and resolution process appeared relatively straightforward and consistent. However, the investigators found that if the charge was against a student-athlete, more specifically against a football player, then the playing field was anything but even. In fact, the investigators found that the way in which reports of misconduct were handled by the athletics department “created a cultural perception that football was above the rules.” The report states: “Football staff conducted their own untrained internal inquiries, outside of policy, which improperly discredited complainants and denied them the right to a fair, impartial and informed investigation.”
Although the Baylor investigation involved complaints and investigations conducted under Title IX, the lessons apply equally in workplaces governed by Title VII or analogous state laws. If your company has different standards for resolving conflict depending on who the accused is (in the corporate world, he or she could be a rainmaker, a revenue-generator, a top salesperson, or an employee who is in some way considered valuable), it is only a matter of time until someone objects.
Don’t Let a Poorly Conducted Investigation Tarnish the Company Brand
Another high-profile investigation in the world of sports was the scandal involving Ryan Lochte and three other U.S. Olympic swimmers. The International Olympic Committee (IOC) is now performing a formal investigation into allegations that Lochte lied about being robbed while in Rio de Janeiro for the Olympic Games. A properly addressed controversy can minimize damage to the individuals involved-in this case, Lochte and the U.S. Olympic team-and to the organization-in this case, the IOC. As a result of this controversy, Lochte lost endorsements, the reputations of the swimmers involved were harmed, and the incident sparked outrage over what some believe is a perceived bias in favor of the swimmers.
Reputational damage to a company’s brand can occur as a result of a company’s failure to investigate a claim, as a result of conducting an inadequate investigation, or as a result of investigating the issue but failing to solve the problem. Whether the result is unwanted media attention or critical employee discussions on social media, the potential fallout from ignoring these issues is great. Savvy companies understand this danger and also understand that their internal brand (what employees think about the company, whether they will be loyal to the company, and whether they will recommend the company to others) is as important as maintaining an excellent external brand.
While it remains important for investigators to become well-versed on the step-by-step mechanics of how to properly conduct workplace investigations, experienced investigators understand that it is equally important to keep big picture issues in mind when performing their work.