Originally from Dispute Resolution Journal

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I. INTRODUCTION

Since the #MeToo movement exploded on social media in October 2017, workplace conduct--as well as the responses by employers in investigating the complaints and engaging in appropriate remedial measures—has been under greater scrutiny.  In the wake of the #MeToo movement, the Equal Employment Opportunity Commission (EEOC) has reported an increase in the number of sexual harassment claims and has issued resources intended to help employers navigate their obligations, including as to investigations of complaints.

This article highlights how workplace investigations involving protected complaints of harassment, discrimination and retaliation have been impacted by the #MeToo movement.  It also outlines eight steps that can facilitate effective workplace investigations and, in turn, remediate inappropriate conduct and limit legal exposure.  There is also a summary of key cases addressing the applicability of work product and attorney client privileges to workplace investigations.

Prompt and thorough workplace investigations in response to protected complaints of harassment, discrimination and retaliation are beneficial for determining appropriate measures to remediate misconduct and may serve to also limit an employer’s liability.  Investigations should be conducted by experienced professionals who are able to effectively elicit key facts.  The investigation should be sufficiently resourced to enable a fair and thorough review of the relevant facts.  Investigators should engage in a comprehensive and methodical approach to investigations to ensure efficacy.