Have you ever seen a sexual harassment investigative report? Maybe wondered what’s in it?
(If that doesn’t interest you, click away and come back tomorrow. We’ll talk about recommendations to avoid harassment in your workplace.)
However, if you’d like to learn more about what goes into a report of a sexual harassment investigation, read on.
First, a little background.
For over twenty years, the Dallas Mavericks, a professional basketball team, had problems with sexual harassment and employee management. Big problems!
None of these problems involved the players on the court. Instead, the bad actors were the organization’s former Chief Executive Officer, its former Senior Vice President of Human Resources, and several other senior-level employees. The investigative team validated many complaints from current and former employees against management. Among them:
- allegations by fifteen current and former employees regarding inappropriate comments and touching by the former CEO;
- allegations by dozens of current and former employees that a former senior ticket sales employee made inappropriate remarks, viewed pornographic images and videos at the office, had a used condom fall out of his pants leg onto the office floor, and had violent and threatening outbursts in the workplace; and
- allegations by two women, including a former Mavericks employee that they were victims of domestic violence at the hands of a former Dallas Mavericks beat writer.
Sports Illustrated first reported many of these allegations in February 2018. Within days, the organization had engaged an independent team of lawyers to investigate. What followed were seven months of interviews (215 of them, including every current employee of the Dallas Mavericks) and the review of over 1.6 million documents.
Ultimately, the investigation culminated in this 43-page report.
What’s in a sexual harassment investigation report?
Now, pay attention.
I’ve conducted many workplace investigations, and there is no one template for the final written report. Heck, depending on the scope of my engagement, there may not be a final written report.
But, as you read up there, this is not your run-of-the-mill independent investigation. Given its magnitude, it’s no surprise that the Dallas Mavericks investigation culminated in a written report. And this report has many familiar hallmarks and a few that you might not ordinarily see.
One thing you’d expect to see is an Introduction section. Yes, the Mavericks Report contains an introduction in which you’ll find a chronology of the events that triggered the investigation itself. It also includes information on the scope of the investigation (e.g., efforts to obtain information, who was interviewed, what documents the investigative team reviewed.) Now, ordinarily, I might spend a little more time detailing the scope of the investigation (e.g., when/where I interviewed witnesses, and the interview conditions.) Additionally, if I use an interview script, I would quote from that too. But, here, with 200+ interviewees, some surplussage must hit the cutting room floor unless you want an encyclopedic final report.
This Report also contains a brief summary of the employer’s business and operations and a summary of the allegations into which the investigators paid the most attention. Where, like here, you have an independent third-party conducting the investigation, you’d expect to find both sections. Conversely, there’s no need to describe the company if the business performs an in-house investigation.
The meat of the Report is the “Allegations and Findings as to Specific Individuals.” This section of this Report was particularly well done. It is organized by alleged harasser. And, for each alleged harasser, the investigators summarize the pertinent details from their employee interviews, provide their investigative findings (including credibility determinations), and detail how the company responded to these issues before the investigation. Not only is this section well organized, but the investigators wrote it in plain English. So it is easy for both a lawyer and layperson to follow and understand.
Considering that the investigation spanned twenty years of alleged bad acts, the corresponding Report addresses “Management and Organizational Issues.” Like the prior section, it is organized by individual and includes both factual findings and the investigators’ critical assessment of how these managers discharged their responsibilities. (Spoiler alert: not well.)
After reciting “Sexual Harassment Law and Policy,” the Report concludes with Recommendations and a Conclusion. Many investigative reports stop at fact-finding and omit these sections altogether. There are many reasons why an investigative report won’t contain legal analysis, recommendations, or conclusions. One reason is that the outside investigator’s job may be limited to investigating a complaint of harassment. If that investigator is called later to testify in a subsequent lawsuit, the investigator can limit his or her testimony to facts, without getting into any legal advice from the investigator to the company. Indeed, the company may have another employment lawyer who will advise the company on the law and what reasonable steps it can take to end any alleged harassment. That legal advice would be protected from disclosure under the attorney-client or attorney work product privileges. So, unless a company specifically asks for this, I do not include it.
But, this is different.
One must view the Mavericks investigation through a different lens to understand why the Reported included recommendations and a conclusion. First, the investigation did not focus on a discrete event or individual. This was systemic harassment at some of the highest levels spanning two decades. Owner Mark Cuban recognized that the organization had fostered an environment in which harassment went unchecked. Further, the circumstances and publicity given to this toxic workplace demanded a reciprocal open-book response.
And tomorrow, I’m going to focus on that response, or rebound, and how your organization can implement some of the recommendations from the Report to improve your workplace.