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Asking about identity during an investigation

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As workplace investigators, it is important to be mindful of how you frame your questions when interviewing parties to an investigation. Framing is even more important when engaged in discussions about an individual’s identity (e.g., sexual orientation, race, nationality, religion, etc.).

Incidents of discrimination and harassment based on a person’s identity (particularly, on protected grounds under the Ontario Human Rights Code) are not always obvious and, in fact, are sometimes subtle (e.g., microaggressions). Sometimes the subtleness of discrimination and harassment based on identity can even go unnoticed by the person who experiences them. An investigation can be tricky where the complainant has raised a complaint of negative treatment but has missed what, to the investigator, appears to be an example of discrimination or harassment based on an aspect of the complainant’s identity.  If you find yourself in such a scenario as an investigator, how do you determine whether the person’s identity might have been a factor in their treatment?

Be prepared 

As with any part of any investigation, rather than “winging it,” be prepared to ask a complainant direct questions about their identity if you think it may have been a factor in the alleged incidents. A detailed review of the complaint and supporting documents will help you decide how to proceed and may give you all of the information you need.

If you become aware that the complainant’s identity may be a factor in their treatment during their interview, consider introducing this line of questioning with an explanation of why you are headed in this direction. Your initial questions might include asking them if they believe they are being treated differently than others and, if so, why they think that is.  If the complainant’s responses leave you unsure how to proceed, you might circle back to the topic at a later date, depending on other evidence received. Depending on the experiences described and your observations of the complainant, you may also find that you do not need to ask about their identity.

Be direct

If you find that you need to ask about it, be direct. Consider the following example:

A complainant has alleged that they are being harassed by a co-worker. During their intake call you notice that they speak with an accent and when you interview them you notice that they are racialized. The complainant has not included in their complaint that identity was a factor in their treatment but they have described that their co-worker treats them differently than their peers.

In this example, it might be fair for an investigator to ask the complainant directly how they self-identify and if they think any aspect of their identity was a factor in how they were being treated.

Don’t be too pushy

There will be occasions when, even after you’ve explained why you are asking about the complainant’s identity, they might refuse to answer the question or deny that their identity was a factor in their treatment. If this happens, keep in mind that people may have a variety of reasons for seeing an issue in one way or another. Do not push the subject or try to convince them otherwise. In addition to exerting undue influence on the investigation process, these reactions might also have the effect of making the complainant reluctant to answer any further questions about their complaint.

Document everything 

Given the sensitive nature of questions about identity, it is particularly important that you document your efforts by keeping a detailed record of both questions and response (or possibly their non-responses). Documentation will demonstrate that you considered potentially relevant information, proceeded with sensitivity, and did not influence the complainant’s allegations.

Ultimately, as with any aspect of a workplace investigation, if you prepare well enough you will be able to manage a potentially sensitive conversation and ensure that your investigation as thorough as possible.

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