5 Considerations for Workplace Discrimination & Harassment Investigations

1. Don’t waste time deciding what to do – Be prompt in making the decision to investigate. Delays make things more difficult and may create procedural challenges to an investigation. Delays may result in people becoming entrenched in their positions and gives more time for discussion to occur among the parties and potential witnesses to incidents. This is not to advocate being hasty in your decision to investigate but being expedient in moving the process forward is recommended. Follow your policies and procedures for such issues and if you don’t have policies and procedures for such issues….call us now!  
2. Consider who will do the investigation – You can use someone internal to the organization or an external third party investigator. Either way it is crucial that the investigator has the ability to conduct a proper investigation and is experienced in this particular type of investigation. It is also important to be aware of any potential conflicts of interest (real or perceived). This will be of particular concern if the investigator is internal to the organization. Remember, the fairness of the process is crucial to ensuring confidence in the outcome for all involved parties. In many cases people will accept an outcome that does not go their way, as long as they trust the process that got them there.
3. Be aware of the scope of the investigation – You must have a clear understanding of the issues requiring investigation and ensure all parties are aware of the nature of the issues being investigated as well as the timeframe being considered for the investigation. Moving outside the scope of the investigation can result in skewed outcomes and ultimately, an unfair process for the parties.  A lack of clarity about the mandate of an investigation can cause some investigators to go outside the scope of the investigation, pursuing concerns that are not actually part of the mandate or even failing to adequately address concerns that are within scope. Prior to starting, clearly outline the scope of the investigation, including identifying specific issues, incidents, and context where appropriate.
4. Be careful in your selection of external investigators – Not all investigations are the same. You must be sure the investigator is experienced and knowledgeable in this area of investigations. Many will advertise they provide workplace investigations or, in Ontario, “Bill 168 investigations”. This does not mean they know what they are doing in respect of harassment and discrimination matters. Human Rights Tribunals are kept quite busy with poorly conducted and errant investigations. There is actually a human rights case that ruled an investigation conducted within a police service by an experienced police detective was very poorly done. The result was a monetary reward to the complainant and embarrassment to the police agency. Discrimination and harassment investigations are often complex and require an understanding of human rights case law, applicable legislation, and the right approach to dealing with the parties to such matters. The consequences for errors in these investigations can be significant.
5. Confidentiality – You must ensure you emphasize to all people involved the expectation of strict confidentiality. Consider having them sign confidentiality agreements to ensure their understanding of the requirement and possible consequences for breaches.

These are just five key things to consider but underlying all of this should be well designed policies and procedures to ensure consistency in the decisions your organization makes when deciding when to investigate and how to investigate. Visit us at our website to learn more www.benardinc.com.