Since the start of the #MeToo movement last fall, a number of clients have asked the Mintz Group, the global investigations firm where I am a partner, whether a preemployment background check would reveal if a candidate has committed sexual harassment in the past.
It’s more than an academic question for us. The #MeToo movement has not only ratcheted up risks for many of our clients, it has caused an earthquake in the due-diligence industry. For human resource professionals, search consultants and due diligence firms who focus on vetting senior executive and board placements, the stakes couldn’t be higher. We need only look at recent headlines to see the damage that can be caused when an executive’s history of sexual harassment is discovered too late.
For those of us involved in assessing candidates, it is important to understand that there are ways to identify past sexual harassment, but they aren’t fail-safe or guaranteed. Unfortunately, it is possible to conduct a comprehensive background check and still miss a past harassment allegation. Let’s look a little closer at why that is the case.
First, a typical pre-employment background check is restricted to an examination of public information—firms like ours are very rarely asked to conduct interviews on a job candidate out of the gate. And there is no database of people accused of harassment, no comprehensive list of bad actors—it takes careful research across dozens, and sometimes hundreds of sources, often in multiple countries and languages given the increasingly global talent pool.
Within this patchwork of sources, we might find that the candidate has been a named party in a lawsuit or arbitration dealing with sexual harassment, or has been the subject of a civil restraining order along those lines. Or, we might find an action taken by the Equal Employment Opportunity Commission or a state equivalent against one of the candidate’s employers (it is always important to search for actions taken against the candidate’s employers, because claims in the workplace might not name the individual accused of the wrongdoing). Or, perhaps there was a news report that the candidate suddenly left a job, which is something we recommend looking at more closely.
It is also important to conduct a comprehensive search of social media to see what the candidate has posted over the years. Has the candidate “Liked” an offensive Tweet, or referred to the opposite sex in a dismissive or pejorative way? Beyond the candidate’s own posts, there is a world of blogs and forums that can reveal inappropriate behavior, whether accounts of a specific incident, or perhaps that the candidate created a general “frat-house” atmosphere at the office. The job-review site Glassdoor.com can be revealing, and we have recently seen some grassroots watchdog groups emerge online, comprised of people from a certain industry or even a specific company who are dedicated to exposing executives whom they consider to be bad actors.
The above flags that I describe can all be found in the public domain, and you should expect a background check to find them. When we do come across one or more of these flags, we often recommend conducting interviews of the candidate’s past colleagues, subordinates and others who were there at the time to get a more complete picture. Interviews can be a powerful tool for filling in the gaps that are left when the public record doesn’t tell the whole story.
But when would a background check miss evidence of sexual harassment? There are a few scenarios to keep in mind and to discuss with your due-diligence providers.
Some US states bar us from reporting certain kinds of adverse information to prospective employers. For example, California law bars background-checking firms from reporting most adverse information naming a candidate that predates the report by more than seven years, whether found in a lawsuit, a news article or elsewhere. The California law recently prevented a company, which had commissioned a background check of a prospective senior executive, from learning that he had been sued for sexual harassment multiple times more than seven years before.
Background-checking firms are also unlikely to find conduct by the candidate, whether in his private life or in the workplace, that has been hushed up and kept from the public record (and from public view generally) by both the candidate and people around him. A recent real-life example: a media company hired a senior executive from another media organization, which did not disclose that it had fired him after a detailed sexual-harassment complaint was filed against him. The hiring company had picked up rumors about the firing, but did not inquire much further.
Last, let’s go back to the fact that almost all pre-employment background checks are limited to information in the public domain and don’t automatically include reference checks or other interviews. There can be evidence of workplace misconduct that only comes to light through talking to people. Consider this scenario: an administrative assistant filed a lawsuit alleging her employer had created a hostile work environment for women. The plaintiff named the company as the sole defendant, but in the complaint described offensive behavior by two unidentified male supervisors. The candidate in question might have been one of these supervisors, but it is impossible to know from public information alone—interviews are often the best way to find out.
Interviewing also proved crucial to resolving a scandal that brought worldwide negative headlines about a high-tech company after an employee stated a superior had sexually harassed her. The firm launched an intense, several-months-long internal probe, examining documents and emails, and interviewing numerous employees, concluding that the allegations were false.
In this era of #MeToo, as corporate and due-diligence professionals are called on to help companies ensure their workplaces are free of sexual harassment, an investigation can also end up lifting clouds of suspicion from embattled individuals. These are not two opposing tasks but one: unearthing the most factual information available to help people navigate risk in a changing world.
By Peter Lagomarsino, Partner, Mintz Group
About Mintz Group
The Mintz Group sets the standard for background checking of executive and board candidates, from long list to finalist, globally. As an Official Partner of AESC, The Mintz Group provides AESC member firms with preferred service and pricing.
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