Internal investigations in sexual misconduct cases often protect the accused

Twelve days after WarnerMedia launched an investigation into an alleged affair between Warner Bros. Chairman Kevin Tsujihara and a young actress, he was out. Tsujihara appeared to be another casualty of the #MeToo movement: a powerful Hollywood executive abruptly felled by shocking yet credible claims of sexually inappropriate behavior.

But the executive’s ouster wasn’t as sudden as it seemed. Tsujihara had been the subject of at least one investigation in more than a year, apparently without facing consequences. Indeed, just two days before long-rumored claims surfaced, AT&T-owned WarnerMedia awarded Tsujihara a big promotion. After the news broke, the company announced that a previous inquiry had found no evidence of misconduct and that it would investigate the “new allegations,” raising questions about how thorough the previous investigations had been.

The eruption of sexual misbehavior claims against powerful, previously unassailable men has done much to make public what used to be private misconduct. But when it comes to upending the power dynamics of Hollywood and other industries the internal investigation remains an opaque instrument that often favors the company and the accused, advocates say.

“The system perpetuates harassment rather than getting rid of it,” said Nancy Erika Smith, a partner at Smith Mullin in Montclair, N.J., who has litigated numerous harassment cases, including that of former Fox anchor Gretchen Carlson. “After #MeToo we’ve seen changes but not in these investigations. It is because there is an inherent bias in favor of the company. Unfortunately, this is where we have failed.”

In 1998, the Supreme Court made two landmark decisions that created a framework whereby companies could be on the hook for sexual harassment by their supervisors. But the court also said that an employer may not be liable if it can make the case that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and that “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

In other words, a company is legally required to take action. And although corporate America has created codes of conduct, sexual harassment policies and trainings, companies retain tremendous discretion in assessing a claim of misconduct and determining the appropriate response.

“An investigation is only as good as the company has mandated it,” said Debra Katz, a prominent Washington attorney who handles sexual harassment cases. “If it’s a real investigation, there is no limitation. You look at specific allegations and you usually find others. A bad investigation is limited to a specific scope and time period, where you certainly don’t get at workplace environmental issues. If an investigator is given carte blanche to fully investigate then they can uncover the truth.”

WarnerMedia’s previous inquiries into Tsujihara included a vetting by the law firm Munger, Tolles & Olson. His ouster came only after the Hollywood Reporter published text messages between the married studio chief and British actress Charlotte Kirk, confirming longstanding rumors that he had engaged in a sexual relationship with the actress in exchange for helping her land movie and TV roles. Kirk did not accuse Tsujihara of any wrongdoing or misconduct. A WarnerMedia spokesman declined to comment.

READ MORE: John Lasseter is attempting Hollywood’s biggest #MeToo comeback. How’s that going? »

Another investigation into a powerful media figure began in early July 2016, when 21st Century Fox enlisted the law firm Paul, Weiss, Rifkind, Wharton & Garrison to examine numerous allegations of sexual harassment and abuse against Fox News then-Chairman and Chief Executive Roger Ailes. The firm said it interviewed dozens of women and within 10 days Ailes resigned. He received a $40-million payout and the company released a statement lauding his “remarkable contribution to our company and our country.”

Immediately, a number of women blasted the investigation. Despite having lodged complaints about Ailes and others to a suite of Fox executives, they claimed, they were not sought out by investigators.

One of those women was former Fox News on-air personality Julie Roginsky. In September 2017 she sued the network for gender discrimination and retaliation. She alleged that her refusal of Ailes’ sexual advances resulted in her losing her slot on the program “The Five,” and that her complaints to, among others, Bill Shine, senior executive vice president of programming, led to her contract not being renewed. In her suit, Roginsky asserted that a number of executives knew of her allegations, yet no one at Fox News advised her to contact the investigating attorneys, nor did they contact her. Roginsky settled her suit with Fox in December 2017. She signed a nondisclosure agreement and is not free to discuss the case. A Fox spokesperson did not respond to a request for comment.

Another media executive who was internally investigated and cleared before eventually being ousted: CBS Corp. CEO Les Moonves. In the midst of a fraught corporate struggle, Moonves told CBS board members about a criminal complaint filed against him in November 2017 with the Los Angeles Police Department alleging sexual assault. The board hired an outside law firm to investigate the matter and later concluded that “no further investigation was warranted,” sources told The Times. After the New Yorker published an explosive story last August — in which six women accused Moonves of a litany of sexual harassment and abuse between the 1980s and early 2000s — CBS hired two law firms to look into the accusations. Within a week, after additional claims came to light, Moonves resigned.

Complicating matters, there is no established protocol or set of criteria for assessing a claim of sexual misconduct in the workplace, giving corporations wide latitude, attorneys say.

“What kind of burden of proof are you looking for to see if the allegations are true or credible?” said Ally Coll Steele, a lawyer and founder of the Purple Campaign to end workplace discrimination. “There is no standard for that in the corporate world like there is in the criminal world, where there is a legal system and instructions for a jury about what they have to find and how to decide a witness is credible. So it is very easy for a company to say something is not credible, especially if they want to keep someone around, like the head of a studio.”

But many misunderstand the goal of an investigation, said a partner at a prominent law firm that represents a number of media and entertainment companies.

“The purpose of an internal investigation is to determine whether or not the facts found substantiate or not a violation of an organization’s policy,” explained the attorney, who declined to be identified because the firm has led several recent investigations. “Whether a violation of the law occurred, that’s for a jury to decide.”

Nonetheless, critics say investigations remain a black box, shrouded in secrecy. The findings are rarely made public, mainly because of privacy concerns.

This month, National Geographic Channel and Fox Broadcasting announced that the astrophysicist Neil deGrasse Tyson would return to television since they’d completed their investigation into allegations of sexual misconduct. They had halted production on one of Tyson’s programs and stopped airing another last December after the website Patheos reported on the accusations of three women, including one who alleges he drugged and raped her in 1984. Tyson denied the allegations.

“The investigation is complete, and we are moving forward with both ‘Star Talk’ and ‘Cosmos,’” the companies said in a statement. “There will be no further comment.”

A spokesperson for National Geographic Channel did not respond to a request for comment.

Although victims agitate for greater transparency into these investigations, more clarity would also benefit the accused, particularly when findings reveal no wrongdoing, advocates say.

Though numerous companies publicly support “zero tolerance” and categorically state that “we take all allegations seriously,” activists say the process is designed to protect the accused and the interests of the company. Smith calls them a “fig leaf,” saying, “What you usually find ... a woman is not believed and the man is exonerated and the company says he didn’t do anything wrong and that is how the status quo is maintained.”

Victims’ rights attorneys have long held that nondisclosure agreements and forced arbitration further preserve the state of play by protecting and enabling serial abusers while shrouding allegations and settlements in confidentiality.

Former Los Angeles Times publisher and CEO Ross Levinsohn was put on unpaid leave in January 2018 after an NPR report that chronicled a number of allegations over the last two decades about inappropriate behavior; the company enlisted the law firm Sidley Austin to investigate. Levinsohn had been a defendant in two sexual harassment lawsuits in which he testified that he had rated the “hotness” of female colleagues and speculated whether a female subordinate had a side job as a stripper. A month later Tronc, then The Times’ parent company, released a statement saying that it found “no wrongdoing on the part of Mr. Levinsohn,” and he was appointed chief executive of Tribune Interactive, Tronc’s digital advertising arm. Levinsohn exited Tribune in January.

For decades, most organizations have made the calculation that keeping the high-value accused was worth the risk. That is slowly shifting.

“The attitude toward these untouchable leaders in an organization has changed,” said the lawyer who has worked on several company investigations, “largely because of #MeToo.”

Consider WarnerMedia’s statement announcing Tsujihara’s departure, saying that “it was in the best interest of WarnerMedia, Warner Bros., our employees and our partners.”

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@stacyperman