Again, one of the mighty has fallen.  Super Bowl winner, ESPN commentator, and the highest paid coach in the NFL follows the path of Harvey Weinstein, Matt Lauer, Andrew Cuomo and so many others in losing his job, his reputation, and probably his career due to abhorrent behavior which remained under wraps for years.  The downfall came after the Wall Street Journal leaked an email from 2011 wherein Gruden referred to the executive director of the NFL Players’ Association, an African American, with an insulting racial slur while communicating with an NFL team executive.

Thereafter, the New York Times shared countless emails in which Gruden used homophobic, sexist, misogynist, and transphobic slurs over a period of ten years ending in 2018. Shortly thereafter Gruden issued a tepid apology and resigned his position as head coach of the Las Vegas Raiders.   The offending emails were written during a time when Gruden was an ESPN commentator, but the recipients were in some way connected to the NFL, either former colleagues of Gruden during his time in Tampa Bay or others with a shared interest in the business of football.

That none of this shocks most of us is probably a sign of the times.  Another foolhardy man who thought himself invincible made the mistake of getting caught.  He was probably communicating with people who were like-minded, found his comments funny, or agreed with his sentiments. They even shared pictures of  half-naked women.  Although Gruden used his personal email, the recipient of many of these emails, team president Bruce Allen used his Washington Football Team email.

What does this latest scandal tell us and how might these lessons help us in future workplace training and investigations?

We  Haven’t Come As Far as We May Have Hoped in Spreading a Message of Equity and Inclusion

Of course many were angered if not necessarily surprised by the contents of the emails.  Yet, a quick survey of the online comments to a Sports Illustrated article shows that many viewed Gruden’s “firing” as an infringement on HIS rights rather than disturbing evidence of an NFL team employing a coach who had no qualms about sharing discriminatory and vulgar content with a team owner

More than a year ago after the death of George Floyd, many thought the discussion on race and social justice had changed and that DEI initiatives in workplaces, schools, and government would have new life breathed into them.  In some ways that has happened, but we see today that we have much to do and that our initiatives must include meaningful training where people really listen to one another and must be the product of shared work by both management and employees at all levels of an organization.  There is no one size fits all, and for diversity initiatives to be successful, they will require sustained effort and commitment, not pretty words spray painted on a football field or emblazoned on a business’ website.  After all, many thought 30 years ago that Anita Hill had changed the face of sexual harassment reporting for good.  We now know that it take hard work and much more than annual anti-bias training to make sustained change.

Follow the Evidence

It is important to bear in mind that the Gruden emails were uncovered not in an investigation of Gruden, but in the course of a review of a toxic workplace claim against the Washington Football Team (f/k/a the Redskins).  The investigation, commissioned by the NFL and undertaken by an outside investigator, did find that a toxic workplace replete with sexual harassment, intimidation, and bullying existed. The NFL received and reviewed the Gruden emails, presumably among the more than six hundred thousand collected.  Gruden’s emails were not released by the NFL but were leaked to the press.  No one knows what the investigator found or concluded about Gruden or those with whom he communicated because there is no written report, and no details have been made public.

One of the primary tenets of an independent investigation is to follow where the evidence leads.  If one is investigating a claim of sexual harassment but unearths evidence of other forms of discrimination or workplace misconduct, these need to be documented and reported, and the employer needs to address them.  Being on notice of misconduct is a call to action.  If an investigator is asked to determine whether a former teacher sexually abused a student and concludes that he did not but learns that he may have assaulted a different student at a different school, that needs to be reported and action taken.   Too often investigators have tunnel vision or are hamstrung by those who hire them into focusing on only one issue and ignoring other facts which may be uncovered.

 Will There Be Transparency and Accountability?

In the wake of past scandals, sexual abuse in the Catholic Church, rape culture in boarding schools, sexual harassment by powerful people in entertainment and politics, the cry was for transparency and accountability. Transparency is difficult in most workplaces where employee privacy is appropriately protected, but where systemic discrimination, harassment, or misconduct is occurring, that privacy sometimes needs to give way.  Independent schools, colleges and universities, for example, decided to name names when a certain standard of proof of misconduct had been met. It was intended to, and in many cases did, buy a certain measure of goodwill from students, parents and alumni, especially when accompanied by a plan of remediation and healing.

Much has already been said about the Washington Team investigation which was managed by Lisa Friel, the league’s special counsel for investigations.  The league did not request a written report from the investigator, only an oral one, deeming the subject matter “sensitive.” Without a written report, there is nothing to release to the public. This is in stark contrast to the investigation of Tom Brady and the New England Patriots for deflating footballs, about which a 243 page report was released by the NFL.  Thus far, there has been no transparency from the league in this case, and it is hard to see how that can stand.

In terms of accountability,  the Washington Football Team was fined $10 million by the league, and team owner Daniel Snyder was removed from day to day management of the club (in favor of his wife Tanya) for a “few months.”  Thus far, Gruden is the only one to suffer public humiliation and a job loss, not to mention a stunning loss of income considering his $100 million dollar contract.  A lot of the public and NFL players who are 70% black are waiting to see what the league will do and whether others will see consequences.

Friel commented that the investigation showed “the culture of the club was very toxic and fell far short of the NFL’s values.”  The league paints “End Racism” and “It Takes All of Us” in its end zones and encourages its fans and players to “Inspire Change.”  Will the Washington Football Team or its personnel and owners face additional consequences?

In deciding who should investigate, whether a report is needed, whether access to the report will be granted to the workforce or even the public, an organization needs to keep top of mind the reason for the review.  Are we on a search for the truth?  Are we bowing to pressure from employees, a board of directors, or the press? Do we want to have a good legal defense to a possible lawsuit?

Many factors impact such decisions as the choice of the investigator, the scope of the investigation, and what remedial action will be taken depending upon the results.  It is therefore important to consult with legal counsel once aware of the need for an investigation on any matter of significance to a business.