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Lately I have noticed a renewed focus and attention placed on the racial identities of neutral decision makers and fact finders, and on the question of whether this is something we should be concerning ourselves with when selecting one. Recently, and most notably, the nomination of Justice Ketanji Brown Jackson to the United States Supreme Court has stirred up controversy because President Biden expressly stated his intention to nominate a Black woman at the start of the process.1 Beyond the politics behind this decision, it was lauded as a move to bring greater representation to the highest court in the country.
Arbitrators have also experienced an increased demand for diversity. A report from the American Association for Justice that was released last year found that three of the largest arbitration service providers in America were mostly male and overwhelmingly white.2 This may be problematic, as many employees are contractually forced to pursue arbitration for resolving disputes, such as racial discrimination or sexual harassment, and do not have a diverse pool of arbitrators to choose from.
Finally, I and many of my colleagues have noticed an uptick in demand for racialized workplace investigators. See my colleague’s article about how anti-Black racism can present in the workplace, touching upon the disproportionate percentage (an overwhelming majority) of lawyers in Ontario who identified as white in 2016.3
The rationale for why there is a growing demand for more diverse judges, arbitrators, and workplace investigators is not complicated to understand. An important component of fairness when investigating complaints in the workplace is to ensure that our investigations are as free of bias as possible. Removing our own unconscious bias from an investigation is challenging, especially because by its nature, the attitudes and stereotypes held by the investigator inform their subconscious information-processing and how they may conduct the investigation. My colleague recently provided an example of how an investigation can be racially discriminatory in its conduct, because of an unconscious bias.4
One clear method for reducing the effect(s) of unconscious bias, which workplaces (and Presidents) have turned to, is to request investigators who belong to “equity groups” or those who have relevant “lived experience.” This is effective in order to increase the likelihood of receiving an investigator who may be more aware and attuned to the microaggressions alleged in the complaint (because they have experienced this themselves). Further, for some complainants, simply seeing an investigator with shared characteristics, or one who does not share the same characteristics as their alleged harasser, can go a long way towards to relaxing a complainant and creating a trauma-informed environment that will increase the chances of yielding the best evidence for an investigation. In my experience as an Asian-Canadian investigator, I sometimes find that I share no apparent characteristics of either party in the investigation, which I sense has helped bolster my perceived neutrality in the investigation.
Another method for reducing the effect of unconscious bias is to train investigators to recognize unconscious bias, and to avoid it. While learned-experience is not a substitute for lived-experience, and vice-versa, learning how unconscious bias works and developing strategies for overcoming it during investigations is a useful tool, not to be overlooked.5 Here is a brief checklist to consider when self-screening for unconscious bias during an investigation:
- Is the process balanced and reciprocal to ensure fairness and reduce the opportunity for bias?
- Have I used the language of the parties rather than inserting my own language?
- Did I consult with colleagues for different opinions while ensuring the confidentiality of the process?
- Are my facts objectively and neutrally framed?
- Is my evidence gathering process consistent across all parties to the investigation?
So where does that leave those who are seeking an unbiased, neutral investigator? There are advantages to selecting those who belong to diverse communities, but that is not any guarantee of a particular lived experience, greater understanding of the complainant’s allegations, or less bias. Overly focusing on the outward, apparent characteristics of a workplace investigator also runs the risk of overlooking many qualified, learned, and experienced workplace investigators who may be equally unbiased. Striking the appropriate balance when selecting the “right” investigator will depend on many things, including the nature of the allegations, the identity of the parties, and the specialization required of the investigator. Race is sometimes an important factor, but it is not the only one to consider.
1 Jaclyn Kaslovsky and Andrew Stone, “Biden vowed to nominate a Black woman to the Supreme Court. It might be good politics,” The Washington Post (February 25, 2022), online: https://www.washingtonpost.com/politics/2022/02/15/biden-supreme-court-nominee-black/
2 Megan Leonhardt, “The huge diversity issue hiding in companies’ forced arbitration agreements,” CNBC Make It (June 7, 2021), online: https://www.cnbc.com/2021/06/07/arbitrators-are-male-and-overwhelming-white-heres-why-it-matters.html
5 There are many resources for unconscious bias training that are offered online. Consider looking at the course provided by Rubin Thomlinson Workplace Training Inc.: Interrupting Unconscious Bias at Work. https://rubinthomlinson.com/interrupting-unconscious-bias-at-work/
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