Tough Issues

Fran S.

Fran S.

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With a book coming out and increased numbers of investigations taking my time, I’ve realized the importance of reflection. The issues I face around workplace investigations become more sophisticated, complex and at times, disconcerting. A few particular issues/ethics questions have repeatedly popped up, so I’ll share my thoughts with readers.

1) The race of the investigator as a legitimate issue in retention.

I have been told in two cases that although I was deemed to be the best-qualified investigator under consideration, that hiring an investigator who was a racial minority was viewed as more important than mere qualifications. While part of me wants to rise in protest at what, on its face, is an improper determination, I have to acknowledge that my firm’s own research shows that in race discrimination claims that the race of the investigator IS a factor in the degree to which complainants later state that the investigation was fair and that investigators that match the race of the complainant are a factor in complainant’s willingness to cooperate in the investigation. As such, I am hard-pressed to argue with those who factor the race of the investigator into a criterion for selection. It raises for me a question of whether an investigator is ethically obligated to inform a client of this fact when he or she is being retained to investigate a race case. It also raises for me a question of whether the complainant’s ultimate satisfaction is a legitimate measure of what a successful investigation looks like.

2) The value and propriety of feedback to parties in investigations. 

What information parties should be/are given following an investigation is probably the most divergent area I see when dealing with a variety of organizations. While some organizations provide a copy of an unredacted report to all parties, other organizations limit their feedback to “action was taken,” or “the investigation was concluded.”

I generally recommend very limited feedback to parties, with the goal being to assure that the concerns were taken seriously, every possible effort was made to determine facts, and where and if action was necessary it was taken, with the bottom line being that if unlawful or policy-violating conduct was occurring, that it will stop. My view is that parties do not need to know the details of what witnesses have said or how their credibility was assessed, as nearly everyone will have some issues with the views of others and that, since the investigation has concluded, providing new information without the opportunity to rebut it afresh is counterproductive. I have listened carefully, though, to colleagues I trust who argue that ensuring the most transparent and open process possible is important from the larger standpoint of employee trust and engagement.

3) Making recommendations. 

I have long argued that an investigator must stick firmly to their role as a finder of fact. To the extent that investigators make recommendations or must implement those recommendations, they lose their neutrality and also get into the bind of “investigating to solution;” In other words, if you know you are going to be responsible for solving a problem, the problem you uncover will be solvable! Particularly for in house investigators, this can be a tough line to maintain, and the truth of the matter is that a solid investigation leads to insights about the thoughts, belief systems, assumptions and amenability of parties to certain interventions. I generally tell my clients that while I will not make specific recommendations, I will respond to their questions about my impressions, including questions about whether I believe certain responses might be effective. I also document these discussions and put them in my file as a memo to the file, in order to be completely transparent about the full breadth of my interactions with the employers. I believe that being available to share impressions allows the employer the benefit of insight gained without turning the investigator into a collaborator with the employer in seeking solutions.


Fran S.

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