We are in the midst of a cultural shift where survivors of sexual violence and harassment now feel able to publicly share their experiences and seek justice for those harms. A big part of the public response has been to believe the accusers and acknowledge their bravery in speaking out, and to hold the (mostly) powerful men to account for their actions. Once accused of sexual misconduct, many of these men have been publicly shamed, sued by their accusers, fired or resigned from their positions, or have otherwise disappeared from the public sphere without a chance to respond to the complaints against them – let alone the opportunity to participate in a full and fair investigation.
To those who have experienced sexual violence or harassment, the significance of this cultural moment cannot be overstated – but I will not get into that here. Countless commentators have done a fine job explaining how exposing harassers and their enablers empowers survivors and helps them to heal. At the same time, the public has paid little to no heed to the rights of those who have been accused of sexual misconduct. Once the court of public opinion has cast someone as persona non grata, there is little appetite for much else.
The vast majority of the respondents who we meet do not occupy high-profile positions, although some do. They may not be known outside of their communities, and are therefore unlikely to face trial by media. But once accused of misconduct, they are vulnerable, their reputations are on the line and they must be provided with procedural fairness throughout the course of an investigation. (For more information on what to expect if you have been named in a harassment complaint, please see this post.)
A workplace investigation is an opportunity to provide fairness to both the person who made the complaint and the person named in the complaint – anything less would fall short of the requirement that an investigation be “appropriate in the circumstances” as laid out in the Ministry of Labour’s Code of Practice. In the age of #MeToo, what procedural protections and entitlements may a respondent expect from an investigation?
When we train employers to conduct workplace investigations, we delve deeply into what we call the “four pillars”: fairness, timeliness, thoroughness and confidentiality. A skilled investigator applies these key principles during an investigation. Occasionally these principles conflict, such as timeliness and thoroughness. When they do, a trained investigator knows how to judiciously balance these principles to safeguard due process.
Building on the four pillars, the following entitlements are owed to the person who has been named in a complaint:
Right to a confidential investigation
A cornerstone of any investigative process, confidentiality must be maintained within an organization about the fact that an investigation is happening; about the nature of the allegations; and about what each person reveals to the investigator. The investigator must only share information with other people involved in the investigation, such as witnesses, to the extent necessary. At the risk of stating the obvious, the organization must not share the investigator’s findings with anyone who does not have a right to learn them.
Right to an objective investigation and investigator
Objectivity is the foundation for a fair and reasonable investigation. To this end, language is important: we do not use the terms “survivor”, “victim”, “perpetrator” or “harasser” to refer to the parties as these connote innocence or guilt. Instead, we use the term “complainant” to describe the person who made the complaint and “respondent” for the person who must respond to the complaint. For an in-depth look at objectivity and for more tips on how to stay objective as an investigator, please see this blog.
Right to learn the allegations
A respondent is entitled to learn the allegations against him or her for the purposes of providing a response. The investigator must provide a respondent with a fulsome list of particulars before the interview. The particulars must include enough detail so that a respondent can respond fully and completely, such as the dates and times of the alleged misconduct and any specific comments, where available. For more information on a respondent’s right to know, please see this article.
Right to respond to the allegations
A respondent has the right to provide a full response to the allegations. This necessitates that a respondent be given the allegations in advance. A respondent may respond by denying the allegations or admitting to them in part, while bringing any mitigating circumstances to the investigator’s attention. When receiving the response, an investigator must remain unbiased.
If we want the #MeToo movement to maintain its credibility and viability, it is imperative that the rights of respondents be respected alongside those of complainants.