What workplace investigators need to know to investigate complaints of discrimination

Published on: September 7, 2022

Most people who have experience with workplace investigations would acknowledge that historically, marginalised groups are underrepresented in the workplace investigator community. While there is no available data regarding the demographics of workplace investigators, statistics pertaining to two areas from which workplace investigators tend to transition (Human Resources and Law) provide a good idea of the makeup of the profession. Nearly 80 per cent of lawyers and 65 per cent of human resources professionals are white. Both areas tend to attract people from middle or upper-middle-class backgrounds. Visible minorities, members of the LGBTQ+ community and people who identify as disabled all make up a small percentage of these professions compared to the general population.

What we can take from this is that in many cases, a person making a complaint of discrimination in the workplace (whether the grounds of discrimination are race, gender identity or disability) will find themselves explaining their case to an investigator who has a very different background and world view. While we would all like to think that we can consider evidence in a neutral fashion regardless of our own lived experience, failing to recognise unconscious bias and knowledge gaps can lead an investigator astray when considering workplace discrimination complaints. 

Below are points that investigators should consider when investigating discrimination allegations.

1) Investigators need to understand how the investigation process feels to people of different backgrounds

If a party seems reluctant to participate in an investigation process or is combative with the investigator, it can be easy to make an adverse inference about the party’s character or the reliability of their evidence. In some cases, however, the party may be used to having their complaints of discriminatory conduct dealt with in a dismissive or cursory manner. If a party seems to lack trust in the investigation process, the investigator needs to probe the reason behind that mistrust rather than jumping to conclusions.

2) Investigators need to understand the context within which the parties live and work

For those without lived experience with various kinds of discrimination, it can be hard to understand the subtle ways discrimination can manifest and the impact that stereotypes and microaggressions can have. If a Black woman is told that her natural hair looks “messy and unprofessional,” this can have a very different impact on her than it would on a white woman. If a person who uses a mobility device is offered assistance with a simple task, this can feel condescending in a way that a non-disabled person may not understand. Every workplace investigator should educate themselves about prevalent stereotypes, resist the temptation to consider events solely from their own perspective, and listen to the experiences of the people they interview with an open mind.

3) Investigators need to understand how their own bias can impact their interpretation of the evidence

We can all fall victim to allowing unconscious bias to impact our decision-making. Studies have shown that judges and jurors are more likely to consider someone to be truthful and “good” when they perceive that person to be of a similar background1; this phenomenon is known as “in-group bias.” Investigators must be vigilant in considering whether their decisions are being made on the facts alone or are being influenced by a perception that one of the parties is “better” because they share specific characteristics with the investigator.

1 Nir Rozmann & Galit Nahari (2022) Credibility assessments of alibi accounts: the role of cultural intergroup bias, Psychiatry, Psychology and Law, 29:4, 535-548.

If you would like to learn more about the challenges of investigating complaints of discrimination and how to overcome them, consider attending our upcoming online session 0n Investigating Discrimination in the Workplace.