After NBC’s Matt Lauer results, are in-house investigations enough?

After firing Matt Lauer in November, NBC launched an internal investigation. In a memo to staff, NBC News Chairman Andrew Lack vowed in the spirit of transparency to share the result of the probe, “no matter how painful, and act on it.”

Five months later, the probe is out — and NBC found that its executives were unaware of the sexual misconduct. That conclusion has been met with skepticism: How could they not have known?

Seasoned investigators say that even if the probe was thorough and fair, it would be hard to convince anyone of that because it was conducted in-house by the NBC general counsel’s office.

“This is one, because of optics, they should have gone outside,” says Michael Robbins, president of Extti, which conducts workplace investigations in the entertainment industry. “If they’re going to exonerate people, then people are going to say, ‘Of course they exonerated themselves.’ It would look a lot better if they went outside.”

The #MeToo movement has forced a broad reconsideration of corporate responsibility for sexual harassment. In the immediate aftermath of the Harvey Weinstein revelations, debate centered on nondisclosure agreements and how they can be used to enable wrongdoing.

With the release of the NBC report last week, the conversation has shifted to internal investigations and whether they, too, are just a tool for cover-ups. Internal probes inherently serve multiple purposes, say investigators: to find out what happened and to protect employees, but also to burnish the company’s image. They are fundamentally less about a quest for justice than about minimizing shareholder liability.

That doesn’t mean the goal is to whitewash misconduct. But the company is seeking to arrive at a defensible position, so that if its response is challenged as being too harsh or too lenient, there is some justification for it. And that process is often colored by subtle bias.

“There are certainly those cases where they’re knowingly burying facts,” says Amy Oppenheimer, a Bay Area attorney who handles investigations. “But more typically somebody isn’t believed or information is minimized. Somebody’s spin is put on it. I think it’s often done unconsciously.”

Oppenheimer says HR directors can face pressure to please the boss, but so can outside investigators. If a potential client seems to have a predetermined idea of what the outcome of an investigation should be, she suggests they go elsewhere.

Christine Farrell, a senior investigator at L.A.-based Public Interest Investigations, says she’s had clients ask for reports to be reworded to not appear so negative. “There is the desire on the part of the company to want a good outcome,” she notes. “They don’t want to believe something bad has occurred. [But] most clients really, really want the truth. That’s why they hire me.”

Jill Rosenthal, another investigator, concurs. “What most lawyers and companies want is to just get the troublemakers out of there. There’s no mileage in covering it up.”

The vast majority of workplace investigations are handled internally by human resources professionals. The quality and motivations of such investigations
vary widely.

“There are absolutely corrupt internal investigations where HR knows that its objective is to clear the company and keep the bosses happy,” says Genie Harrison, a plaintiff’s attorney who represents one of the Weinstein accusers. “There are also internal investigations that are not corrupt — that are objective.”

In one case in 2010, a nurse in Santa Ana, Calif., reported that he was being sexually harassed by another male nurse. The employer, Western Medical Center, did not assign the case to HR, instead asking the employees’ supervisor to handle it. The supervisor interviewed both men together, not separately, and did no other investigation. Both were fired. The accuser sued for wrongful termination and was awarded $240,000. An appeals court faulted the investigation as lacking rigor.

If the allegations appear serious enough, or involve high-level individuals, a company may contract with an outside investigations firm. This costs more money than an in-house investigation, but it also offers a more independent result — one that is less likely to be second-guessed by a court — especially if the investigations firm does not regularly work for the company. And employees may feel more comfortable opening up to someone from the outside. The company, however, still controls the scope of the investigation.

“Sometimes they ask us not to look into certain things,” says Extti’s Robbins. “Sometimes they tell us not to interview someone we want to interview.”

In those cases, Robbins will note that fact in his report.

Fox News offers an example of what happens with a narrow probe. The network hired an outside firm, Paul Weiss, to investigate the circumstances after Roger Ailes was sued for sexual harassment. The probe led to Ailes’ departure from the network, but Fox was faulted for not looking into whether others at the network enabled his behavior or whether the company had a culture of harassment. Bill O’Reilly was fired a year later, also for sexual harassment, after an investigation by The New York Times.

Typically, an outside investigator doesn’t draw legal conclusions or make disciplinary recommendations. That’s left up to the company’s leadership, and the decisions tend to weigh the company’s interests. A high-ranking employee might get costly one-on-one harassment training, while a lower-level employee might just be fired.

In the NBC case, the general counsel’s investigation made factual findings, among them that Lauer engaged in sexually inappropriate conduct and that employees were afraid to report it. But the report also offered the legal conclusion that Lauer’s behavior did not generate a “hostile work environment.”

That conclusion blurs the responsibilities of fact-finding and defending the network, which could make things more complicated if and when the network is sued for sexual harassment, investigators say.

The report also emphasized the importance of having a third-party reporting system for harassment complaints in the future — an irony, given that the investigation was handled in-house. In fairness, there are no easy answers to that problem, given the power imbalances and incentives in any workplace.

“Many employees fear retaliation for going to HR,” says Amy Semmel, an attorney who handles harassment cases. “That’s a reality almost everywhere. What to do about that is a quandary.”