The energy industry has historically been known as an “old boys’ club.” Men toiled in the oil patch while, back at headquarters, more men oversaw other aspects of the business.
Over the years, the industry has made progress in hiring and promoting women. But in the era of #MeToo, the legacy of this gender imbalance has made the sector particularly ripe for harassment claims. Those who feel that they have suffered harassment are already more willing to come forward, and the reputation of the industry — rightly or wrongly — bolsters complainants’ beliefs that the mistreatment they perceive having suffered is gender-based.
In order to minimize liability and do right by their employees, companies must conduct well thought-out and thorough investigations. With that in mind, here are three must-dos for conducting internal investigations in the #MeToo era:
Determine the potential scope of the investigation and the best type of investigator
- Rather than rush into an investigation blind, it’s crucial that in-house counsel first determine its potential scope. For instance: How many interviews might there be? How much data will need to be collected? In light of the allegations and players, could the case uncover further wrongdoing, result in litigation, or attract attention from government agencies?
- The higher the risk of these outcomes, the more likely the company should engage external counsel to conduct the investigation.
Collect, preserve, and analyze a broad spectrum of information
- It’s not just e-mail anymore. Investigators need to look at phone data, various digital messaging platforms, and, of course, information obtained via in-person witness interviews.
- And don’t stop collecting data — individuals may still be communicating about the events while the investigation is ongoing.
Think carefully about your investigation report
- An investigation report can be a critical tool for management to assess the findings and recommendations, and can serve as potential evidence to defend claims of harassment.
- However, attorney-client privilege has to be carefully preserved — be aware that selective, affirmative disclosure could result in an argument that privilege has been waived over the entire report.