Language discrimination is a harmful reality in many workplaces, and employers need to be proactive in not only preventing it, but in celebrating and promoting language diversity. In a world where 281 million people live in countries other than where they were born, and with a record number of Canadians (13%) reporting a first language other than English or French, this issue is more important than ever. The rise of controversial new voice-altering technology, which perpetuates existing hierarchies about who speaks English with the “right” accent and who does not, adds to this urgency.
Conducting an investigation that is thorough, fair, confidential, and timely is, to speak plainly, complicated work. Investigators must make many difficult judgement calls during the process, including which witnesses to interview, which records, texts, and emails to review, and how to weigh the various types of evidence when making findings of fact.
Before joining Rubin Thomlinson, we both worked in-house in large organizations, overseeing workplace investigations. Internal investigations can be tricky to navigate; opportunities for conflicts and confidentiality breaches are heightened when investigators work among those who they are investigating.
On July 4, 2021, the New York Times published a story about a leaked video capturing the host of ESPN’s “The Jump,” Rachel Nichols, a White woman, questioning the merit of her colleague, Maria Taylor, a Black woman…
When conducting interviews as a workplace investigator, I begin each interview by explaining my role in the investigation process to the interviewee. As an external investigator, I ensure that interviewees are aware that my role is to be neutral. In the past, I have been asked whether I could be truly neutral. I have had interviewees express to me their reservations about how I would be assessing the information they provide, for if a client retains our firm to investigate a complaint, would I not then just be serving the client’s interest? In this blog post, I answer these and other questions I have been asked in relation to an investigator’s neutrality.
Bias – whether conscious or unconscious – is a problem that workplace investigators grapple with in many forms. Perhaps bias is exactly what we’ve been asked to investigate: was the complainant treated differently at work on the basis of her gender, race or religion? Or, maybe we’re concerned that our own biases are affecting our investigation: do I believe the respondent’s evidence just because he looks and talks like me?
In my previous life, before becoming an investigator, I lived in the world of private legal practice, both in the Caribbean and in Ontario, Canada. In that role, I had the opportunity of interacting with persons of diverse social, cultural and racial backgrounds, persons of varying personality types and persons with experiences that had shaped their life or the way they interacted with others. There were many occasions where the persons with whom I interacted, whether as their advocate or as opposing counsel, were seemingly not forthcoming with the information that I needed to illicit. The typical or traditional thinking is that they are not forthcoming because they are either lying or have something to hide.
No matter how fair-minded an investigator may be, the inescapable reality is that we all have inherent biases. The situations we investigate are viewed through our own lens, and sometimes our past experiences and our perceptions can interfere with a fair and neutral information gathering process unless steps are taken to mitigate the risk. The