Matt Lauer’s abrupt departure from NBC illustrate important lessons employers should take away from this week’s events in how to investigate and respond to harassment claims. It is important it note that NBC is not like most employers in that this one of the most newsworthy and public harassment allegation cases in the nation and it must manage public relations at the same time of mitigating its legal liability. However, there are still lessons employers should pay attention to arising out of this case, leading to this Friday’s Five:
1. Be up-front and as accurate as possible in any initial reports or disclosures to the public
Employers need to be very careful in issuing any public statements about harassment allegations and investigations. As set forth below, in addition to likely being evidence in litigation, it could create additional defamation liability for all of the parties involved.
If a company does issue a statement, it needs to be well vetted and with knowledge of all of the facts. For example, NBC’s responses to the Lauer issues raised questions. First NBC issued a statement from Chairman Andrew Lack read on the Today Show Wednesday morning stating that the woman’s complaint was “the first complaint about his behavior in the over twenty years he’s been at NBC News.” Later in the same day, NBC released a second statement stating, “We can say unequivocally that, prior to Monday night, current NBC News management was never made aware of any complaints about Mat Lauer’s conduct.” The fact that NBC issued a qualifying explanation that “current NBC News management” was never informed later in the day, when initially the company said that there was no complaint ever made about Lauer, had raised many questions: did former NBC News management know of complaints? If so, what, if any, actions did the company take in response to those complaints?
2. Don’t rush to make any disclosures to the public
Even though the company’s intentions may be good in making disclosures as quickly as possible, it can create some issues, such as:
- Making statements that may not be accurate because all of the facts have not been discovered and all of the witnesses have not been spoken to. Even though it may not be intended, providing changing facts makes it look that the company is attempting to cover up issues.
- Creating additional legal liability: statements issued publicly will be evidence in any resulting litigation, and could be used against a party in the litigation.
As discussed below, given the liability that could be created, employers should think twice about issuing any statements to third-parties that do not have a need-to-know.
3. Be careful in discussing any aspect of the complaint and investigation to third-parties who do not have a need to know
Employers must also be careful about issuing any statements to other employees in the company or to the public that could result in a defamation charge by the alleged victim or the alleged harasser. Employers can be liable for defamation for statements made about the employee’s termination, statements made during investigations, or statements about the employee after they left employment. Generally, to prove defamation, a plaintiff needs to prove “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Taus v. Loftus (2007). A plaintiff must show that the statements caused damages such as damage to their reputation, that the statements made it harder to find another job, or emotional distress. Again, it is critical that employers do not rush to make any statements before all of the facts are known. A good rule of thumb is to only discuss the allegations, investigation, and ultimate findings about the investigations with the parties involved and individuals who have a need to know.
4. Must conduct “immediate and appropriate corrective action” in the workplace
Employer must act quickly in addressing the potential harassment in the workplace. How soon the investigation must start depends on the circumstances. In Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) the employer’s response was held to be prompt where it began investigation on the day that complaint was made, conducted interviews within two days, and fired the harasser within ten days. In Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994), the court held that an employer’s response to complaints were not immediate when it did not seriously investigate or reprimand the supervisor until after plaintiff filed charge with state FEP agency, even though the harasser was eventually discharged. In Saxton v. AT&T, 10 F.3d 526, 535 (7th Cir 1993) the court found that the investigation was prompt when it started one day after complaint and a detailed report was completed two weeks later. In Nash v. Electrospace Systems, Inc. 9 F.3d 401, 404 (5th Cir. 1993) the court held that the investigation was prompt when completed within one week. The court in Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 319 (7th Cir. 1992) found the investigation was adequate when completed in four days.
However, employers have no duty to report findings to the public or other third-parties that do not have an interest in the harassment allegations and the subsequent investigation. High profile harassment claims do carry an additional public relations aspect that must be considered, but employers have not legal duty to report findings to the public. In fact, doing so may create additional liability as discussed above.
5. Employers may have to take actions internally before conducting the investigation
Based on the allegations and the facts of the case, as a precautionary measure, the employer should analyze if any immediate steps needs to be taken. The EEOC set forth examples of precautionary steps that may be necessary include: “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.” However, the employer needs to ensure that the complainant “should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.”
The type of precautionary actions that the employer should take depends on the facts they are presented with, as each case will vary.