Keeping Independent Investigations Free From Bias

As investigators, what we say and how we say it matters. Whether we think so or not, we all have biases that can impact our decision-making. Stopping those biases from interfering when you are conducting any investigation is critical to remaining neutral and keeping the “independent” in independent investigations.

Unfortunately, we do not always recognize our own biases because they can often be subtle or subconscious. Some of the biases that can interfere with workplace investigations include:

• Confirmation Bias
  This refers to an individual’s natural tendency to place more weight on information that may confirm their preconceived notions. For example, if you are investigating a claim of sexual harassment in the workplace and receive a complaint that shines a very negative light on the alleged perpetrator, you might unconsciously look harder for evidence that he/she engaged in sexual harassment instead of evidence to the contrary. This may also occur if you speak to someone within the company, such as an HR manager, prior to the start of your investigation that already has formed an opinion on their version of the truth.
• Affinity or “Like Me” Bias
  This bias can often occur when the investigator tends to favor information received from sources who are in some way “like” the investigator, such as religious beliefs, common interests, similar backgrounds, or even physical traits. Consequently, you may be more inclined to view someone you relate to as honest and consider their statements to be credible. On the other hand, you might rush through an interview with someone with whom you have little in common and may subconsciously view them as less credible.
• Priming Bias
  Priming refers to the bias that occurs when we react to a stimulus based on exposure to another outside stimulus. Within workplace investigations, the most common instance of this is in the use of loaded language by the investigator when asking a question. For example, the investigator might ask a leading question like, “Well, you didn’t think that behavior was inappropriate, did you?” or they may refer to the investigation as “allegations of sexual harassment” versus “concerns about inappropriate behavior” which can elicit very different reactions from interviewees.

By definition, a workplace investigation should be an unbiased search for the facts of what happened. In reality, people who conduct investigations are still susceptible to both conscious and unconscious bias. Better awareness of how your implicit bias could impact a workplace investigation is crucial to furthering your goal of uncovering the facts.

Unconscious Bias Versus Open Bias

The above behaviors are typically unconscious bias and not necessarily the type of bias that we can easily identify. Open bias, on the other hand, can be far more damaging when you are supposed to maintain neutrality during an investigation. Some examples of open bias that we must consider before conducting an investigation may include:

• You know the person who is being accused personally and have a good relationship with them.
• You have experienced an event similar to the allegations and cannot separate your own feelings from those of the accuser.
• You have had previous negative interactions with a person who is being accused.

Remember, your goal is to make sure any allegations of misconduct are thoroughly investigated. These workplace investigations must be fair to both parties, and this means making sure our biases, which may be open or unconscious, do not interfere in our decision-making.

Unfair Investigations Have Consequences

Any investigation which results in either party feeling like they were treated differently or unfairly because of a bias of the investigator can cause issues once the investigation is over. The outcome will be called into question, and this could cause additional friction between the accuser and the accused as well as against the investigator. This could also undermine your entire investigatory process going forward and may result in other employees not filing legitimate complaints because they are uncertain as to whether they will be treated fairly.

Helpful Hints for Ensuring Fair Investigations

Acknowledging that we all have these biases is the first step in preventing them from interfering with your investigation. With that in mind, there are some simple ways to ensure an investigation is completely independent and fair to everyone involved.

• Remaining neutral — if you have a personal relationship with either party, you must not play a key role in the investigation. In these cases, you would be better off seeking assistance from another outside investigator.
• Avoid pre-judging — if you feel you have made a decision about the possible outcome before you have conducted a fair, thorough investigation, then you should step back from the process and find a neutral third party to provide oversight.
• Be conscious of bias – remember we all have a tendency to be critical of anything which contradicts our own beliefs. This must never happen during an investigation where you are taking the lead.
• Collect all the facts — you need to be certain you are hearing the facts presented by both parties as well as any pertinent witnesses to the situation which led up to a complaint being filed before you make any determination. If you find you are unable to do this because you have predetermined which party is right, you are the wrong person to be conducting an investigation.
• Use common sense — always remember when you are interviewing the complainant, the accused, or witnesses they may act defensively, nervous, or scared. These are normal reactions to an interview and should not be used to undermine the information you are receiving from them.
• Be your own critic — once the investigation is complete and you have reached a determination, review everything carefully including the outcome. Do so with a critical eye to see if your own personal biases had any impact on your questioning, interviewing, or in determining the outcome and ultimate resolution of the complaint.

Unfortunately, sometimes, even when you have the best of intentions, your own personal bias will interfere in a manner that can result in undermining any processes you have in place for employee complaints. Rather than run the risk of being accused of having a built-in bias, contact Ablin Law by filling out our online contact form or by calling 312.288.2012.