USA – NEW YORK Trends and Developments Contributed by: Tracey Levy, Simone Handfield and Raphael Lee, Levy Employment Law, LLC
Similarly, if the organisation 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 organisation 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 biographi - cal descriptions. Usually that is the only information available when an organisation looks to hire an outside investigator. Even when selecting the appropriate in- house person to assign to an investigation, the organi - sation 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 colour 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 com - monalities, but those lived experiences can be quite different, particularly depending on factors like soci - oeconomic status, geographic location, education, family dynamics and much more, both in childhood and as an adult. Even if our skin colour 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 organisations 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 organisation 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. Sometimes this is based on finding that the reported behaviours did not occur. More often, the finding is that some words may have been said or a particular sequence of events may have occurred, but when considered in a broader context of other comments and actions, the specific behaviour may be found not to violate the organisation’s policies. In those latter situations, the investigation may reveal bad management practices or insensitive comments by a co-worker that pre - sent grounds for a complaint and opportunities for improvement, even though the behaviour may not be substantiated as violating any policy. The respondent should receive the same courtesy of due consideration as is afforded to a complainant. If an investigator is chosen because the investigator is of the same race, ethnicity or gender as the com - plainant, 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 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 pro - vide that by keeping an open mind, focusing attention on the interviewee, making eye contact, speaking little and listening much, and periodically paraphrasing the speaker. 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 behaviours, 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.
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