Workplace investigations are an important part of Diversity, Equity and Inclusion (DEI) plans. In this article, we talked with Julia Paris, Managing Attorney of Workplace Investigations at Employers Council, about DEI considerations in conducting fair workplace investigations.
What should workplaces investigate?
Julia: Being mindful of DEI considerations may expand the issues that warrant workplace investigations. Generally, an organization should investigate anything that may result in disciplinary action or any allegations of problematic conduct or conflict. Being willing to look into even seemingly minor events may reveal problematic attitudes or situations before they become large events. “Lower-level” conduct may actually be the tip of the iceberg in terms of what is being reported, or it may be frequent enough that it causes significant problems in the workplace, both legally and practically. Investigation conveys the message that the organization stands behind its DEI policies, which gives employees confidence that their complaints will be acted upon. Even complaints that don’t directly implicate protected-class status should be taken seriously: Allowing any conduct that violates workplace culture sends a message that the policies aren’t being taken seriously. Making it clear that the organization will address all conduct not in line with its vision is a big step in creating a workplace where all employees feel safe and protected.
Who should conduct a workplace investigation?
Julia: This question can be a difficult one, especially for smaller organizations. While larger organizations may have a designated investigator for workplace complaints, many smaller organizations do not. In those smaller organizations, workplace investigations are often conducted by an employee who also serves in another role, which can lead to overwork and potential conflicts of interest. It may not be possible to avoid these problems entirely, but there are important considerations in choosing an internal investigator that may reduce them.
Investigators should be as free of potential conflicts of interest as possible. It’s best to avoid choosing an investigator to look into an issue involving people with whom they frequently and closely work. Even more importantly, an investigator should not investigate anyone who ranks above them in the organization. An investigator should have workplace investigations training or certification, as well as experience. If no internal staff member meets these criteria, outsourcing your investigation to a third party may be the best option.
Equally important in the area of DEI: An investigator should be able to instill confidence in witnesses/parties but remain approachable. It is crucial that an investigator have the ability to treat all participants in an investigation the same, regardless of personal likes or dislikes. It may be impossible to find an investigator with absolutely no personal bias of any kind, but it is certainly possible to find those who are self-aware and will consciously refrain from allowing any bias in their analyses and findings. A good investigator will be able to explain their findings articulately and in detail in an investigation report, which will reduce the likelihood of a successful bias claim down the road.
How do we evaluate workplace investigation evidence with an eye towards DEI?
Julia: The preponderance of the evidence standard used in workplace investigations is often not as easy a determination as one would think. While some investigations have evidence clearly weighted on one side or the other, many do not, making a confident determination more difficult. Often, the alleged conduct may not have a witness other than the parties, meaning that determinations may hinge on the evaluation of witness credibility. This is one of the riskier areas for potential DEI issues, as any improper investigator bias will most likely be seen here. A good investigator should check their analysis for any cultural bias and should be willing to look at the reliability of a witness or party’s statement from different cultural perspectives. An investigator should not discount a witness’s credibility without considering the effect of different perceptions formed by that witness’s cultural and identity experiences. Having a disinterested reviewer examine the report for cultural bias issues is important.
Once a workplace investigation is completed, how should the results be handled?
Julia: For next steps after a workplace investigation, consistency is key. If discipline is being considered, it should be in line with discipline for similar types of conduct, across protected-class status and rank. I advise having an individual who was not the investigator determine consequences, as they are less likely to have acquired any personal bias regarding the parties during the course of the investigation. Additionally, having different personnel making determinations regarding findings and discipline makes it less likely that any bias will find its way into both decisions. Employers may also want to contact their Employers Council attorney to help assess next steps regarding any needed remediation or discipline.
In summary: Fair workplace investigations require being mindful of DEI considerations throughout the process, from determining what to investigate to evaluating evidence. Investigation reports and next steps should be reviewed by disinterested parties to ensure an equitable result.
Need help carrying out a fair workplace investigation? Contact our Employers Council investigation experts.
Interested in avoiding behaviors that lead to workplace investigations? Bring our DEI and harassment prevention training to your workplace.