The most uncomfortable conversations I have had related to a new workplace investigation have involved the request for me or another specific attorney on my team conduct the investigation because that individual is perceived to align with the same demographic group as the complainant. Most often the alignment is along racial or ethnic lines; occasionally it is based on gender or religion. Some potential clients have explained to me that they want someone who can understand the lived experience of the complainant; others have said they are just concerned about the optics of the engagement.
Here are my concerns with that approach:
- 1. It starts from a biased premise;
- 2. It may do a disservice to the respondent; and
- 3. It does not assure you an effective investigation.
The Bias Inherent in Matching for Race/Ethnicity/Gender
When an organization chooses an investigator because of the investigator’s race, ethnicity, gender, or other protected characteristic, that is discrimination. Similarly, if the organization is using race or ethnicity as a proxy for “lived experience,” then discriminatory bias is underlying the selection.
Lived experience can be relevant and is not inherently discriminatory, but no organization can know the lived experience of an investigator from the information typically available on a website — a photograph, the person’s name, or even most professional biographical descriptions. Usually that is the only information available when an organization looks to hire an outside investigator. Even when selecting the appropriate in-house person to assign to an investigation, the organization may not have much additional information on the personal lives of the employees who are being considered for that assignment.
Just because a complainant is a person of color or a woman, and an investigator is not, does not mean the investigator is a bad fit or less likely to give due consideration to the concern being raised. The inverse is similarly true, that just because a complainant is white or a man, and an investigator is not, does not mean the investigator is a bad fit or less likely to give due consideration to the concern being raised.
For starters, not everyone who identifies as being from the same racial or ethnic demographic group has had the same lived experience. There may be some commonalities, but those lived experiences can be quite different, particularly depending on factors like socioeconomic status, geographic location, education, family dynamics, and much more, both in childhood and as an adult. Even if our skin color aligns, we are not all cookie cutter images of one another. Therefore, the premise that just because an investigator looks like the complainant, the investigator will understand the complainant’s lived experience, is flawed.
How Does the Selection Impact the Respondent?
A workplace investigation should not be a “gotcha” experience. Most organizations initiate a workplace investigation so they can understand what actually happened, and/or whether any policies were violated. Sometimes the complaint is substantiated, and the organization needs to take disciplinary or remedial action with respect to one or more of the individuals accused of inappropriate conduct (the “respondents”).
Other times, though, the investigator may ultimately conclude there was no policy violation, perhaps because the reported behaviors did not occur, or more often because behaviors may have occurred but in a broader context that reflects they did not violate the organization’s policies. For example, bad management practices or insensitive comments by a coworker may be grounds for a complaint but may not be substantiated as violating any policy.
We should want to give the individual accused of inappropriate conduct the same courtesy of due consideration as we afford to a complainant. If an investigator is chosen because the investigator is of the same race, ethnicity or gender as the complainant, what does that signal to the respondent? Does the process feel fair and unbiased under those circumstances?
Matching Ethnicity Does Not Correlate with an Effective Investigation
The key to an effective investigation does not derive from demographics, or even I believe from lived experience, but rather from the ability to create an environment in which the complainant, respondent, and every other interviewee, is given time and space to speak and a forum in which to feel heard. An investigator can provide that by keeping an open mind, focusing attention on the interviewee, making eye contact, speaking little and listening much, and periodically paraphrasing the speaker. I have successfully used all those techniques to interview complainants and others who fall into every possible demographic group, both those who look like me or have experiences with which I am familiar, and most that do not. The objective at all times should be to gather information, and to come from a position of inquiry, not affirmation or accusation.
Lived experience can at times make us more attuned to particular terminology or behaviors, so that we think to ask about them. Other times, though, lived experience can lead to overfamiliarity with particular terminology or situations, such that we might be less inclined to inquire further about them and thereby make assumptions as to meaning or import that may be mistaken.
An effective investigator consistently should be gaining clarity as to meaning, often by literally asking the interviewee what the interviewee means by a particular word or phrase, why the interviewee made a particular comment, or what something looked, sounded, or felt like. The investigator should not accept broad generalizations or loaded phrases (such as “harassment,” “hostile work environment,” “toxic,” or “gaslighting”) without also seeking specific examples of the behavior being referenced. No racial, ethnic or other demographic group has greater knowledge or facility with these techniques – they are the skills that an effective investigator has acquired with time and experience.
What Should an Organization Look for When Selecting an Investigator?
Experience, skill, availability, and an open mindset should be key considerations when selecting a workplace investigator. When interviewing external investigators, ask them about their investigation process – they should be able to describe a methodology for approaching a workplace investigation. No two workplace investigations are ever quite the same, but an effective investigator will have a toolkit of techniques to approach the investigation and the humility, curiosity, and drive to regularly reflect on the issues raised and the information gathered so as to reach conclusions that are grounded in a well-supported analysis of all parties’ perspectives, documents submitted, and other relevant information.
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In this periodic Workplace Investigations blog series, I explore considerations that arise from 18 years of experience conducting workplace investigations and a decade of teaching others how to conduct investigations, both through my work as an educator with Cornell University ILR school’s professional certificate programs and through my own business, Impact Workplace Training. Past articles in this series have included:
Hearsay May Be Compelling in No Witness Harassment Complaints
When Should You Consider Retaining an Outside Investigator
Consider Transparency of Outcomes from Workplace Investigations
By Tracey I. Levy
