If 2018 was the year of high-profile harassment investigations, 2019 should be the year of putting into practice what we learned from them. As scandal after scandal unfolded, employers scrambled to get to the root of the problems and mitigate the damage. We learned valuable lessons on how not to respond to sexual harassment allegations and how to conduct effective workplace investigations. It’s important to put what we’ve learned into practice and map out a way forward for 2019. Join Angela J. Reddock-Wright, employment attorney, mediator, arbitrator, investigator and trainer, as she reviews the lessons learned from the high-profile sexual harassment cases that shaped the news in 2018 and outlines a progressive plan for prevention, investigation and resolution. The webinar will cover: An overview of newsworthy sexual harassment cases from 2018 What went wrong and why How to respond effectively to allegations of sexual harassment How to prevent sexual harassment in the workplace Training every manager and employee should have annually

1. Sexual Harassment
Investigations in the News:
Lessons Learned From a Year
of Upheaval
Angela J. Reddock-Wright, Esq.
The Reddock Law Group

2. Angela Reddock-Wright
Named a “Top California Employment Lawyer” by the Daily Journal, and one of
Los Angeles’ “Most Influential Minority and Women Attorneys” by the Los Angeles
Business Journal, Angela is the Founding and Managing Partner of the Reddock
Law Group. She has practiced law for more than 20 years and specializes in
employment law with an emphasis in conducting workplace investigations. As an
investigator, she is certified through the Association of Workplace Investigators
(AWI-CH).
She also is a mediator and arbitrator with the American Arbitration Association.
She is the President of the Southern California Mediation Association and serves
a Panel Member for the Los Angeles County Equity Oversight Panel. She is a
graduate of UCLA School of Law and Amherst College, and the Coro Foundation
in Public Policy. She received her training as a mediator from the Strauss Institute
at the Pepperdine University School of Law. She is an Adjunct Professor in the
mediation program at California State Dominguez Hills and an Instructor in the HR
Certification program at UCLA Extension. She is a published author, speaker, and
legal commentator.

3. Evolution of the “Me Too” Movement

4. 1997 – Activist Tarana Burke Begins the
“Me Too” Movement
4

5. 2017 – High Profile Claims Reignite the
“Me Too” Movement
• April 2017 – Bill O’Reilly resigns from Fox after
allegations of sexual harassment.
• October 2017 – Harvey Weinstein dismissed from his
company and expelled from the Academy of Motion
Pictures & Sciences after multiple allegations of sexual
harassment.
5

6. Oct 12, 2017 - Alyssa Milano Tweet
6

7. 2017 Time Magazine
Person of the Year – “Silence Breakers”

8. Since April 2017
More than 263 celebrities, politicians, CEO’s and others
have been accused of sexual harassment and
misconduct.
The list continues to grow . . .
Source – www.vox.com
https://www.vox.com/a/sexual-harassment-assault-
allegations-list
8

9. Impact of the “Me Too” Movement
• Increased public and media attention around issues of
sexual assault and claims of harassment and
discrimination in the workplace and other environments
• Increase in complaints of sexual harassment and
discrimination – both in the workplace and other
environments
• Increase in the number of investigations conducted in
the workplace and other environments
9

10. Equal Employment Opportunity
Commission (EEOC)
• The EEOC reports that since October 2017:
• Sexual harassment charges with the EEOC increased by over 12% from the previous
calendar year.
• Sexual harassment lawsuits filed by the EEOC increased by 50%.
• “Reasonable Cause” findings in sexual harassment investigations jumped by 23%.
• Successful EEOC conciliation (or mediation) proceedings rose by 43%.
• EEOC website traffic—specifically the Agency’s sexual harassment page—more than
doubled.
• Total recovery for sexual harassment complainants in 2018 jumped to approximately
$70 million from $47.5 million in 2017.

11. Temin & Co. Study
A June 25, 2018 study by New-York-based crisis consulting firm Temin & Co.
found that:
• at least 417 high-profile executives and employees were outed by the “Me
Too” movement within the first year of the reignited movement
• 410 were men
• 8 were in consensual relationships with their accusers
• 193 resigned or were fired
• 122 suspended
• 69 not impacted

12. Time’s Up
April 29, 2018
At the Tribeca Film Festival, Time’s Up reports that
2,500 women have sought help from its Legal Defense
Fund.
12

13. Society of Human Resources Professionals
(SHRM) Study – October 2018
Shows that:
• Nearly one-third of 1,034 executives said they have changed their behaviors
to a moderate, great or very great extent to avoid behavior that could be
perceived as sexual harassment,
• About one-fourth of 1,022 managers said they have changed their
behaviors.
• 23% attributed lowered morale and decreased engagement to sexual
harassment
• 18% stated sexual harassment decreased productivity
13

14. SHRM October 2018 Study (cont …)
Shows that:
•Many men reported that they feel uncomfortable around female colleagues and
that they are unclear on what constitutes sexual harassment
•10% of employees stated that their company added more anti-harassment
training or resources
•But companies are putting more resources into quality training
•72% of employees stated they were satisfied with their company’s efforts to stop
sexual harassment in the workplace

15. Legislative Action
261 new federal and state sexual harassment laws passed in 2018:
Congress increased the statute of limitations for victims of alleged
harassment to sue up to age 28 or up to 10 years after the
reasonable discovery of the violation.
15

16. Legislative Action (cont …)
California had the most aggressive laws with:
• Employees do not have to release their discrimination or harassment claims, or commit
to non-disparagement clauses, as a condition of employment
• A single incident of harassment can constitute illegal harassment, as opposed to the
prior standard of “severe and pervasive”
• Non-employees can be liable for sexual and unlawful harassment (i.e. third party
vendors)
• Prevailing defendants are limited in their ability to be awarded attorneys fees and costs
for sexual harassment lawsuits
• Employers are encouraged to add bystander training to their sexual harassment training
• Employees are not required to commit to nondisclosure provisions in settlement
agreements
• Employees do not waive their right to testify in future administrative or legal proceedings
16

17. Global Impact
Since October 2017, the “Me Too” hashtag has trended in
at least 85 countries, and in dozens of languages.
For example, #YoTambien in Spanish, #MoiAussi or
#BalanceTonPorc in French, #QuellaVoltaChe in Italian,
# in Russian,Ятоже ‫#ווווווו‬ in Hebrew, and ‫#ווו_וווו‬ in
Arabic.
Source: DLA Piper Labor Dish, “#MeToo and Its Impact on Global
Investigations,” December 11, 2018
17

18. Better Investigations?
Not Necessarily
18

19. High Profile Investigations – Learnings
• Michigan State University/Amanda Thomashow/Dr. Nassar
Investigation
• Dr. Christine Blasey Ford/Brett Kavanaugh Investigation
• University of Southern California (USC)/Dr. George Tyndall
Investigation
• CBS Television/Les Moonves Investigation
• NBC Universal/Matt Lauer Investigation
19

20. 20

21. The Basics – Why Do We Investigate?
• It’s the Right Thing to Do
• Protection and Assurance to Employees
• The Law Requires It
• Employers Have a Duty to Take Reasonable Steps to Prevent and
Correct Harassment & Discrimination in the Workplace
• To Identify & Address Potential Misconduct & Policy Violations
• An Affirmative Defense in Litigation
21

22. “Me Too” Has Not Changed Investigation
Standards or Principles
Investigations Still Must Be:
• Immediate/Prompt
• Thorough
• Impartial/Independent
22

23. Troubling Trends
Delayed Investigations
Example: Complaints made months or years ago
that were not addressed or investigated at the
time.

24. Troubling Trends (cont…)
Intentionally Limited Investigations – Not
Thorough
Example: Not interviewing all relevant witnesses or
gathering all relevant documentation and other
evidence in an investigation.

25. Troubling Trends (cont…)
Lack of Impartiality & Independence
Example: Interference and undue influence by a Board of
Directors, executives, or leaders within a company or
organization.
Example: Using outside counsel or in-house investigators
that are not impartial.

26. Reports from the Field – NY Times Opinion
Piece
A Los Angeles attorney described an incident that happened when
she was looking into accusations that a college president had
sexually harassed a student. During her interview with the president
and his lawyer, in the president’s office, she excused herself to use
the rest room. She returned to a locked door and realized she had
left her handwritten notes and computer in the room. “I started
pounding on the door,” she said, but it was another 15 minutes
before they let her back in.
Source: NY Times Opinion Piece – “When #MeToo Investigations Go Wrong,” Susan
Antilla,
Dec 6, 2018

27. Reports from the Field – NY Times Opinion
Piece
An investigator from Pacifica, California reported that one client’s
general counsel demanded that she delete information from her
report that reflected badly on the company. (She declined to follow
those orders). Another investigator reported that a client told her
not to write a report at all if the findings turned out to be bad for
the company.
Source: NY Times Opinion Piece – “When #MeToo Investigations Go Wrong,” Susan
Antilla,
Dec 6, 2018

28. Reports from the Field
A former product manager at a Silicon Valley artificial
intelligence start-up said in a lawsuit in August that she was
assured that the investigator hired to look into her sexual
harassment allegations would be neutral. But when the
manager offered to share messages that corroborated her
claims, the investigator wasn’t interested. When the report
was complete, the manager asked for a copy but was told she
couldn’t see it.
Source: NY Times Opinion Piece – “When #MeToo Investigations Go Wrong,”
Susan Antilla, Dec 6, 2018

29. So What Were Some of the Problems
with Recent High Profile
Investigations? What Can We Learn?

30. Failure to Use Reasonable Steps to Prevent &
Correct Discrimination & Harassment
Michigan State University/Dr. Nassar Investigation
•Reports of alleged abuse were made as early as 1997
•Yet, the University did not investigate nor take steps to investigate or
to create a safe environment for students.
•In 2018, faculty staff and students called for the resignation of the
Michigan University Board of Trustees compelling action, several years
later, on the part of the Board and University.
30

31. Best Practice – Reasonable Steps to
Prevent & Correct Harassment
• Maintain an “easy to read and understand” current and up-to-date
policy on sexual harassment, discrimination and bullying
• Distribute the policy frequently
• Include specific information (in the policy) regarding how to report a
claim of harassment discrimination, or bullying
• Explain the employer’s investigation process in the policy
• Conduct regular training for all employees on preventing harassment
and discrimination in the workplace
31

32. Failure to Conduct an Immediate/Prompt
Investigation
Multiple Examples:
• Michigan State/Dr. Nassar – complaints as early as 1997
• USC/Dr. Tyndall – Tyndall had been with the University for 30 years;
complaints dated back many years
• NBC/Matt Lauer – complaints dated back 10+ years

33. Best Practice – Immediate/Prompt
Investigations
• Promptly investigate all complaints of discrimination, harassment, and bullying
even if:
• the allegations are old;
• the accused is popular or perceived as indispensable; and
• there is distrust of the complainant or the allegations
• the investigation may place the company or organization in a negative light
• even if Board Members, donors, alumni, major supporters, other faculty,
employees, staff or students are against it
• Encourage “Bystander” reporting

34. Failure to Conduct a Thorough
Investigation
CBS/Les Moonves Investigation
• Investigators interviewed more than 150 people, but failed to
interview two of Moonves’ top female executives who had led the
company’s entertainment division for more than 15 years.
NBC Universal/Matt Lauer Investigation
• Internal investigators did not interview several women who worked
with Lauer over the years. NBC Universal had an outside firm review
the investigation, which they “blessed.”
34

35. Failure to Conduct a Thorough
Investigation
Michigan State University/Dr. Nassar/Amanda Thomashow Investigation
• The internal Title IX investigator conducted the investigation (after several years of
complaints)
• Thomashow alleged that Nassar massaged her breasts and vaginal area during an
examination.
• The investigator only interviewed four individuals, each of whom had personal ties to
Nassar
• 3 medical specialists and an athletic trainer
• One witness had been an expert witness on behalf of Nassar in a prior case for
sexual assault
• In 2016 and 2017, the University eventually hired outside investigator to conduct an
investigation into allegations of sexual harassment by some of the school’s football
players
35

36. Failure to Conduct a Thorough
Investigation
Brett Kavanaugh/Dr. Christine Blasey Ford Investigation
• The investigation was “politicized”
• Dr. Ford was not interviewed as a part of the investigation
• Unrealistic time limitations were placed on the investigation
• The FBI did not interview witnesses who possibly were able to
corroborate Dr. Ford’s version of events
36

37. Failure to Conduct a Thorough
Investigation
Brett Kavanaugh/Dr. Christine Blasey Ford Investigation
• Lack of control over the investigation - Information was leaked
• It’s not clear that the FBI gathered all relevant documents and other
potential evidence
• The process was flawed overall
37

38. Best Practices – Conducting a
Thorough Investigation
A thorough investigation includes the following:
• Interviewing both the complainant and the accused (also conducting follow-
up inter
• Interviewing all relevant witnesses to the investigation
• Collecting and reviewing all relevant documents, data, and other evidence
• Being sensitive to time and the timely completion of the investigation, but
not letting any time pressures restrict you from conducting a thorough
investigation. Request additional time if necessary (in some instances there
may be some statutory or administrative limitations)

39. Failure to Conduct an Independent
Investigation
Michigan State University/Amanda Thomashow/Dr. Nassar
Investigation
•The investigator was an internal Title IX investigator for the University
•There was evidence that a Dean in the Medical School at the University
regularly inquired about the investigation, voiced his support for
Nassar, and returned Nassar to work prior to completion of the
investigation
•The investigator only relied on witnesses identified by Nassar.

40. Failure to Conduct an Independent
Investigation
USC/Dr. Tyndall Investigation
•USC selected a firm to do the investigation that had litigated 4 previous cases
on behalf of the University
•There was a question as to who picked the investigator – the former Chancellor
who had worked with the lead investigator in the 4 matters before, or the Board
of Trustees
•The former Chancellor, who also served as a voting member of the Board of
Trustees, was not shielded from the investigation initially

41. Best Practices – Conducting An Independent
Investigation
• You control and dictate the direction of the investigation
• Do not let others within the company or organization dictate who you should
speak with or not, or what information you should review or not. Of course,
this does not include information that might be designated as attorney-client
privileged or attorney work product
• Maintain neutrality and assure the parties and witnesses of your neutrality
throughout
• Gather all facts and information before making any findings or drawing any
conclusions
• Do not allow media, your personal feelings, the opinions of others, or other
external factors to influence your view of the investigation, the parties, or
information received
41

42. Failure to Conduct an Independent
Investigation
NBC/Matt Lauer Investigation
•It is arguable whether the internal investigator was neutral and
independent
Ford/Brett Kavanaugh Investigation
•It is arguable whether the FBI was neutral and independent, or acting
based on political directives and motives

43. Making Legal vs. Factual Findings
Michigan State/Thomashaw/Nassar Investigation
•The investigator made findings and conclusions about the
University’s potential liability
•The investigator also made recommendations regarding
best practices

44. Best Practices – Factual vs.
Legal Findings
• Best practice is only to make factual findings – not legal findings:
• Do: Based on a preponderance of the evidence, I find the manager touched and
attempted to kiss the complainant multiple times.
• Don’t: I find that the manager engaged in sexual harassment that places the
company at substantial risk. I recommend the company terminate the manager
and re-write its policies against harassment. I also recommend the company re-
train employees on its policies against harassment.
• Although privileged in many instances, investigation reports can be discoverable.
• It is up to the company/organization’s in-house counsel or outside counsel to advise
the company/organization on its legal and other risks, even if you are an attorney
investigator.

45. Failure to Maintain Confidentiality
CBS/Les Moonves Investigation
•The draft 59-page investigation report was leaked to the press
•Who leaked the investigation? Allegations that someone from the
investigating law firm did so.
•If leaked, was it because CBS was trying to gain a negotiation
advantage - $120M was at stake
•If leaked, was it because someone on the inside of the firm was an
advocate for the “Me Too” Movement

46. Best Practices - Confidentiality
• In the interview process, explain to witnesses that the investigation is confidential, and
encourage witnesses to help keep the investigation confidential (different requirements for
unionized employees)
• Take all steps to maintain confidentiality as the investigator
• Only provide your final written report and any report outs to the Chair of the Board of
Directors (or his/her designee or Executive Committee), the assigned attorney(s), human
resources professional, and/or manager or executive who is charged with determining next
steps following the investigation.
• Do not speak to the media or anyone outside of your firm (including family and friends)
about the investigation
• Take all steps to protect the confidences of the document and information gathered
during the investigation (upgrade your technology; consider how you transfer documents
and information)

47. Failure to Take Appropriate Corrective &
Remedial Action Following an Investigation
NBC Universal/Matt Lauer Investigation
•Anchor Ann Curry stated that NBC Universal did not reach out to
her after the investigation until she reported to the Washington Post
that no one from the company had reached out to her
Michigan State/Dr. Nassar Investigation
•Nassar was returned to work before the investigation was complete
•Thomashow claimed that the University did not provide her a clear
explanation of the outcome of the investigation and next steps, or
address her concerns

48. Best Practices - Taking Appropriate Corrective
& Remedial Action Following an Investigation
After completion of the investigation and receipt of the final investigation
report, the employer should take the following steps:
•Determine if there needs to be any discipline of the accused and if so, what?
•Follow-up with both the complainant and accused as to the outcome of the investigation
(issues of confidentiality must be considered)
•Evaluate the following:
• Are there any other individuals who should be counseled or subject to some form of
discipline?
• Do any employees need to be separated, or does there need to be any type of
reorganization?
• Do there need to be any policy changes?
• Do employees need additional training?
• How will unity be restored to the department or group of employees impacted?

49. In Summary
• The increase in high profile and highly sensitive investigations do not
change the basic standards and principles of investigation – immediate,
thorough, and independent.
• As trained investigators, human resources, and other business
professionals, we have a duty to ensure that these basic principles are
followed and are not compromised under any circumstances.
• Once our investigative practices, our independence, and our neutrality is
compromised, we devalue the importance and impact of investigations
for the entire profession.

50. Thank-you for Participating in
Today’s Webinar
Angela J. Reddock-Wright, Esq.
The Reddock Law Group
(213) 996-8474
angela@reddocklaw.com
www.reddocklaw.com
Contact us at i-Sight
j.gerard@i-sight.com