In an early episode of the show Suits, Harvey Specter, the lawyer we love to love and hate, convinces a judge that a company’s internal investigation into allegations that the CEO sexually harassed his employees was unfair and flawed. All Harvey has do is ask the judge what would happen if the court bailiff accused the judge of sexually harassing him, and the judge tasked the court reporter to do the investigation. Harvey does not have to cite case law or scholarly articles. It is just so obvious to the judge that an investigation conducted by someone the judge has authority over would be biased and unfair.[1]
It should be obvious that investigations into allegations of serious workplace misconduct should be conducted in an impartial and fair manner. However, it is surprising how often they aren’t.
The impartiality of the investigator is essential to both the correctness of the outcome, as well as to the acceptability of the outcome. As stated in the Backhouse report on the Dalhousie Faculty of Dentistry[2]:
Concerns about conflict of interest should always be taken seriously. If not addressed promptly and directly, they can undermine an otherwise fair process. Fairness principles apply not only to actual conflict or bias, they require that there be no reasonable perception of bias or conflict of interest. This requirement grows more stringent where the decision has greater potential impact on the individual.
In other words, the higher the potential for harm to the complainant or for severe employment consequences for the respondent, the more stringent the requirement for impartiality of the investigator. Workplace policies dealing with harassment, discrimination and bullying should provide some guidance to the organization to determine whether the person investigating the complaint is free of actual conflict or bias, as well as a reasonable perception of conflict or bias.
For more information on effective workplace investigations, contact Gail Gatchalian at [email protected]
[1] Shout out to my clients who told me that once I got through the pilot of the show Suits, I’d like the show. I typically have a rule against watching lawyer shows. I still do think sci-fi teaches us more about life than lawyer shows…
[2] The June 26, 2015 Report of the Task Force on Misogyny, Sexism and Homophobia in Dalhousie University Faculty of Dentistry, the Task Force, chaired by Professor Constance Backhouse