Any Questions? Preparing for a Sexual Harassment Investigation

By Brett L. Ward, CFI

Did anyone else hear (feel) that loud “WHEW” a handful of weeks ago?  ZERO chance you missed it.  I happened to be in the air and its power knocked my plane off its heading.  The Captain came across the intercom – “Folks – hope everyone’s okay back there.   Unsure as to the root cause of that wind shear.  Going to turn the seat belt sign back on for a little while in case of any others ahead.  Flight attendants please take your seats.”    While waiting down in baggage claim, I learned the source thanks to a TV with CNN running in the background.  It was an exhale direct from the Cosby Legal Camp – a significant release of emotion due to the sexual harassment spotlight shifting somewhere else.

We learned quickly that the spotlight was about to get muy caliente, and hit a target rich arena (the first of what would be many) – Hollywood.  These last couple of months have been like watching a Cy Young winner at a local county fair throw a baseball and knock down targets to pick out a teddy bear for their better half.  “Ping” – down goes Harvey Weinstein.  “Ping” – there goes Kevin Spacey. “Ping” – Russell Simmons selling his own company.  “Ping” – Brett Ratner knocked off the podium.  Attention then shifted to the media.  “Ping”- goodbye Bill O’Reilly.  “Ping” – has anyone seen Charlie Rose lately – he’s not in makeup.  “Ping” – adios Matt Lauer.  “Ping” – Roger Ailes disappears.  (The dude behind the wire is nervously perusing his stuffed animal inventoryThen with unbelievable accuracy the world of sports comes in focus.  “Ping” – Bye bye Marshall Faulk, Heath Evans and Ike Taylor.  “Ping” – Isiah Thomas on point again.  “Ping” – Larry Nassar (175 is not enough).  Even the world of professional chefs was not unscathed.  “Ping” – Mario Batalli (Chew on that).   “Ping” – Johnny Luzzini not so sweet apparently.  How about Washington DC?  “Ping” – Al Franken adjusting his professional goals.  “Ping” – John Conyers.  “Ping” – Roy Moore. “Ping, Ping” – Donald Trump, and Mark Halperin each taking direct hits.  Attention shifts back to the world of comedy.   “Ping” – Andy Dick gets dropped.   “Ping” – Louis CK – not so funny eh?  I can hear Larry Wilmore screaming in the backdrop “I AINT FORGOT ABOUT YOU #@$!!!“ (worth the You Tube – still makes me giggle).  You know who else I can hear – the women’s voices who are clearly being heard now.   “Any Questions?”

It’s become increasingly apparent that 2018 is going to be the year of Karma.  I’m sure everyone knows, or has been told by someone who loved them, “Whatever Decisions you Make in Life, You Also Decide the Repercussions.”  The pace is different in many cases (unfortunately), but damn sure know it is coming.  Rest assured, none of us are immune to it.  I seem to remember reading somewhere “Let ye who is perfect cast the first stone” (and everyone drops their stone and walks away silently).  We’ll just start with yours truly.  Those sensitivity trainings (plural) sure have come in handy.  Points taken, duly noted, implemented often (Last facilitator – “Do we have a clear understanding of areas of improvement?  Me – “Crystal” (he said with above average eye contact)).  And the Chicago WZ team just blew coffee through their noses ruining their laptops……

Apparently I have been known to crack a “funny” (very loose & subjective use of the term) that others who clearly do not share the same sense of humor do not find as comical.  Or maybe in a previous life I showed tendencies of an “aggressive management style” that apparently did not meet the standards of the world we currently reside in.  It is amazing how many investigations I’ve worked in 28+ years in this field where someone who was asked to do their job was feeling “bullied” (and the HR crowd reading says “Amen”.)   The only people who laughed at that are the 20K people who were forced to listen to me at one of my speaking engagements in my 20+ year career with WZ (ok, well at least the 200 that remember it…or the 20 who’d publicly admit it.)

It is, in fact, in your best interest to “know your audience”.   What a blessing for someone like me to work for an organization that is more like a family (a tad more understanding and forgiving of alleged flaws).  For example, I just returned from our annual internal meetings up in Chicago.  Rest assured a handful of the pranks we have pulled on each other will go down in infamy, some of which created reactions that, let’s just say, were “colorful” in nature.  Our last evening together, coming out of dinner with a few my fellow WZ speakers, Chris (Norris) and I head to our car while Mike (Reddington) is finishing up a chat with the others.  We’re warming up the car as he’s heading over, hear the door open and close, so away we drive away.  We’re heading down Butterfield Road chatting about our game plan for the morning and without turning around to look at him, Chris asks Mike for directions to a location for one more Coke Zero (cough cough) and there is silence.  ”Yo Mike” (continued silence).  Chris looks at me, I yell back “Dude – peel away from texting the wife for a second” (cricket noises in the backseat).  We both turn around (yes, still driving) only to find the back seat is completely empty.  Mike is AWOL.  We both die laughing.  Amazing we didn’t get in a wreck.  We’re now officially 5+ miles away from where Mike was left behind, and later would discover he had resigned to the idea of walking back to our hotel.  I call him and to his credit (and my disbelief), he was composed.   Being a professional interrogator of like mind, I now must antagonize him into unshackling the real Michael Reddington at which time he unleashes a tirade explaining both of our untimely demises he created in quite a short timeframe.   Had there been any witnesses to said conversation, an investigation would have certainly ensued.  Both Chris and I would have of course (after paying off the restaurant management for all copies of parking lot video) proclaimed our innocence to avoid surfacing our (obvious) innocent participation in this (alleged) event to avoid potential repercussion, nor would we have brought forward any complaints of assault, workplace violence, fear of aggravated battery, larceny of my delicate emotional well-being, and a laundry list of other potential goodies.  So now we have not two, but three unwilling participants in this hostile arena, each of which shall we say do not harbor the “submissive” gene so delicately sought after in the investigative interview.   Who would like to tackle this one?  Any Questions?

Amazing how those of us tasked with handling sensitive investigations definitely understand what is appropriate, and what is not.  We claim to know what is humorous, and what is not.   We’re certainly supposed to know what policy is and what is not.  Probably shouldn’t be in the role we’re in if we don’t know what the law is and what is not.   Fantastic start, but you know what else would help?  How about knowing the answers to incredibly valuable questions I hear often in our workshops such as:

Who should we talk to first – second – last?  It does make a genuine difference, and yes, there are strategic and specific options based on the severity of alleged offense.

How will I be able to identify the truth when interviewing professionals who’ve conducted these interviews themselves?  Through structured principles associated with specific, targeted questions.

How do we handle this case when brought to our attention by someone outside of the alleged victim or offender?  Are we sure the allegation is even accurate?  A must know before initiating.

Can I ensure that everything I or my team will say will not incentivize an honest person to saying something untrue?  Absolutely, if using morally and ethically appropriate strategies.

What areas should I be considering during my investigative prep? Pros do not skip this step – ever.

What potential denials might each side present and how will I handle? Emphatic, Explanatory, Specific

What strategy should I consider a best fit for the players involved?  Best investigators on the planet have multiple strategies, and they know when it is appropriate to use them.

Who all is involved in the investigative team and will they be consistent with their questions and strategy?  Could I compromise the success of the investigation with wrong team?  YES

Without evidence, is there a strategy that I can be confident using to obtain as much information as possible?  That’s what education and training is for.  WE ALL needed guidance throughout our career.

How do I get out of these conversations should everyone be unapologetically unwilling to participate?  When in doubt – back out, professionally.

What rationalizations do I feel would create an atmosphere that would allow savvy people the opportunity to want to participate in this sensitive communication?  If all we have here are stories as old as dirt, memorized and regurgitated over and over – well, no Bueno.

What exactly do I want/need in the documentation to ensure our final objectives as an organization is met?  Quickest way to compromise a good investigative interview is a poorly structured document.

I can’t define how much I enjoy working with our HR/ER professional partners around the globe.   They have a sincere desire to elevate their education and skill sets in the art of investigative interviewing.  They know how important it is to their careers to be efficient and confident in the strategies they need for these sensitive communications.  And my personal fave – they know how to laugh and learn at the same time.   I’m always amazed when speaking at different HR conferences how much “Legal Definition” and “What Is” training they have access to.  However, I’m equally amazed at how little “So How Do I Handle It?” training they receive.  The vast majority of these ever increasing Title VII, Title IX, and general sexual harassment cases are going to be handled with little more than circumstantial evidence.  Whether WZ or someone else, we need to give the folks handling these cases the necessary tools to do so with confidence, integrity, and with proven techniques that are morally and ethically sound.   And then the next thing we do is bring change to a society that can, in fact, be impacted positively, one person and one act at a time……Any Questions?