I have watched the Today Show for longer than the 20 years that Matt Lauer was associated with it.  Throughout Lauer’s tenure there were persistent rumors in the entertainment press about his marital infidelity and sexual indiscretions.  Lauer was publicly fired on November 27, 2017 for engaging in sexually inappropriate behavior in the workplace.  After his firing, Sarah Ellison wrote in Vanity Fair that “Lauer had been dogged by stories of [his] infidelity for years” with female interns, bookers, and production assistants in charge of running scripts. An article in the NY Daily News insinuated that someone was “protecting” Lauer, calling out NBC for years of enabling Lauer’s sexually “predatory” behavior.  These stories included allegations of an extramarital affair with Today personality Natalie Morales, reported in 2016 by Page Six, which both Lauer and Morales firmly continue to deny.

Did NBC do the right thing by conducting its own internal investigation of an employee’s November 2017 harassment complaint about Lauer? The investigation precipitated his immediate firing.  Given Lauer’s reputation, should NBC have retained external counsel to lead the investigation?  Here are some pros and cons to consider.

First some background.  After 20 years at Today, Lauer’s celebrity and the primacy of Today in the NBC News lineup make Lauer’s behavior on the job and his firing front-page news.  One employee’s November 22, 2017 email to NBC News Human Resources Department (News HR) triggered further inquiry (by News HR and a senior NBCUniversal employment attorney) about the employee’s allegation that in 2014, she had experienced inappropriate sexual behavior by Lauer  The interviewers found the allegation to be credible.  After interviewing Lauer, who admitted to having sex with the complainant, NBC News President Andy Lack fired him on November 27, 2017.  Shortly thereafter, perhaps because Lauer had been fired, three more women came forward to complain about Lauer’s behavior, and their complaints were also found to be credible.

According to the New York Times,  Steve Burke, CEO of NBCUniversal, ordered the internal investigation, instructing Kimberly Harris, General Counsel at NBCUniversal (who reports to Burke) to assemble and supervise an internal team of experienced lawyers and human resources professionals, employed outside of the News Division, to find out whether:  1) current members of NBC News or Today Show leadership, or anyone else in a position of authority in the News Division had any information about inappropriate behavior by Lauer prior to November 27, 2018, and if so, what was done to address the behavior; 2) whether there had been other incidents of inappropriate workplace behavior in the News Division, and if so, were these reported and addressed appropriately; and 3) whether employees in the News Division are comfortable reporting concerns about workplace behavior, and if not, why not.  Burke thus established the scope of the investigation for Harris and her team.

Lack confirmed to Fox News in early December 2017 that an internal investigation team consisting of “the most experienced NBCUniversal legal and human resources leaders” was conducting a “thorough and timely review of what happened.”

The investigative team conducted interviews with 68 past and present NBC News employees about Lauer’s behavior and any other concerns they had about the NBC News culture; reviewed e-mails and other documents involving Lauer; and evaluated the lines of communication through which employees could report concerns.

Before its release, the written report of findings from the five-month investigation was reviewed and sanctioned by attorneys from the law firms of Proskauer Rose and Davis Polk, although no attorneys from these firms participated in the actual investigation.

The Harris report identified no other reports were made to NBC News about sexual harassment by Lauer before November 27, 2017 and asserted that there was no widespread systemic pattern of behavior that violated company policies.  Finally, the report said that there is no culture of sexual harassment at NBC News.  These findings seem out of sync with rumors and rumblings about Lauer that had been circulating over time in the entertainment press.  Indeed, there was something else in the report that might explain why the investigators did not identify widespread cultural sexual harassment problems.

The report described barriers that have prevented employees from reporting concerns about workplace behavior. Interviewees, although aware of internal reporting channels, feared that reporting concerns to the company would result in retaliation – including termination — because they felt their anonymity and confidentiality would not be respected.  The day after Lauer was fired, comments by Noah Oppenheim, President at NBC News, seem to corroborate these fears. Fox News and Page Six reported that Oppenheim told NBC News staffers and the team at NBC Nightly News Program that anyone who had known about Lauer’s behavior but kept silent would receive the most severe punishment possible.  He said, “And this is why we are conducting this review.”

After Harris’s report was released, The New York Times reported that the findings were “widely panned by objective observers online with many taking issue with NBC’s decision to have their own in-house counsel…spearhead the probe.”

In this high profile firing, should Harris have engaged objective, outside counsel to create the scope of the investigation and conduct the investigation?  Was external counsel’s after-the-investigation review of Harris’s team’s methods and findings sufficient to create clear optics?

Supporting an internal approach, investigators should be qualified to understand the nature and meaning of the complaint.  The investigative team at NBC included senior employment attorneys and human resources staff knowledgeable about the ramifications of a sexual harassment allegation. As Burke directed, Harris formed the team with no members from NBC News Division, which gave it some limited attenuation from NBC News.  NBCUniversal also released Harris’s completed report to the public, which suggests that the investigation was intended for disclosure.  This relative transparency seems in keeping with the nature of Burke’s three-point directive to Harris for the investigation, including examination of the culture and aspects of fear of retaliation for reporting sexual harassment.

Nevertheless, many detractors criticized using a team of corporate insiders under the oversight of the NBCUniversal General Counsel to investigate Lauer. For some examples of many, the New York Post said NBC “raised a lot of eyebrows” by not hiring an impartial outside investigator.  Variety cited numerous advocacy groups who criticized NBC for investigating internally, citing bias and whitewashing.  A CNN panel said, “Of course they should’ve brought in outside investigators” in such a high-profile matter.   NBC itself noted that while managers “were unaware” of Lauer’s sexual misconduct, NBC “employees were reluctant to report misconduct issues.”

One finding of the internal investigation – that NBC News had not received one report of Lauer’s sexual misconduct before November 27, 2017 — may have significant cultural implications.  The organization’s response could be seen as conflicted, because Lauer was the tenured star of television’s longest-running morning show.  This makes it more than possible that employees interviewed in the internal investigation were just as reluctant to report concerns about Lauer to the senior NBCUniversal lawyer or HR interviewer, particularly given the rumors that many of the women Lauer allegedly harassed served in lower-level positions. In an external investigation, employees would have a higher expectation of confidentiality and could have been more forthcoming.

An internal interview of the alleged misconduct by such a public figure as Lauer may have been swayed by internal pressures and carries an onus of conflict of interest, since NBC News is a Division of NBCUniversal, the NBCUniversal leadership team, including Lack, report to Burke and are peers of Harris.  Oppenheim’s admonitions to the staff did nothing to engender coming forward during the review (since he threatened severe punishment to anyone who had been silent).

Finally, there was no mention of a compliance program at NBC News or NBCUniversal, where the company website notes Harris is “responsible for legal and compliance matters.”  Debate continues about whether the GC should be responsible for both legal and compliance duties.  When they are, like Harris seems to be, hiring qualified and independent external counsel to conduct the investigation of Lauer would have had better optics.

Without an independent investigation led by an objective external counsel, perhaps with assistance from an independent compliance team, NBC’s credibility has been questioned.  NBC Universal’s investigation of Lauer provided important feedback to Burke about the culture at NBC News.  Perhaps a key finding should have been that there is no widespread culture of sexual harassment at NBC News, at least in part because widespread fear of retaliation at NBC News prevented those who experienced harassment from reporting it.