LEGAL EXPERTISE

The 2017 #MeToo movement and the national conversation the movement ignited brought heightened awareness to sexual abuse and sexual harassment in the workplace and beyond. Consequently, employees felt empowered to report allegations of sexual misconduct in the workplace, and employers were forced to review and revise their policies and respond to increased reports of misconduct.

Likewise, escalation of racial tensions in the summer of 2020 and the strength of the #BlackLivesMatter movement sparked a national conversation about race and equity that fueled a drive for change in the workplace.

As with the #MeToo movement, the #BlackLivesMatter movement caused employers to create or reevaluate their internal policies and procedures, while other employers focused on raising employee awareness of their established policies.

Further, increased awareness of racial injustice and unequal treatment has led to increased numbers of employees raising concern about workplace inequities.

Although investigating bias complaints can be challenging, the following tips can help employers ensure they are conducting effective investigations and maintaining an environment free of discrimination and harassment.

Establish trust with employees

Without trust, employees are less likely to bring their concerns forward. The foundation to trust with employees starts with creating clear anti-harassment and anti-discrimination policies.

Your policies should be in writing and accessible to employees, and it is essential that you regularly train employees at all levels regarding the policies.

The next crucial step in building trust with employees is to enforce your policies consistently and fairly. Employees gain confidence in the system when they observe their employer following the established procedures in an equitable and consistent manner.

Select an appropriate investigator

Investigator selection is crucial in all investigations, but perhaps more so when investigating a bias incident. The right investigator must possess the skills, knowledge and experience to conduct the investigation, but also must be free of bias and conflicts of interest.

When investigating racial and other bias complaints, employers should also consider whether the investigator’s demographics (i.e., race, age, etc.) will impact the investigation.

For instance, if an Asian employee makes a race discrimination complaint, the employee may feel more comfortable discussing the complaint with an investigator that has the same racial background, or at the very least, a non-Caucasian investigator.

Selecting an appropriate investigator furthers trust between the investigator and parties or witnesses, and lends further credibility to the investigation.

Understand the impact of microaggressions in the workplace

The #BlackLivesMatter movement not only increased awareness of racial injustice in the workplace generally, but it highlighted a specific form of bias: microaggressions.

According to Merriam-Webster Dictionary, micro-aggression is defined as “a comment or action that subtly and often unconsciously or unintentionally expresses a prejudiced attitude toward a member of a marginalized group (such as a racial minority).”

Microaggressions are usually harder to investigate because the employee’s complaint does not involve a blatant act of bias, but rather smaller acts or expressions of bias (e.g., telling Black employees they are articulate, or commenting that an Asian employee is great at math). Nevertheless, microaggressions can rise to the level of unlawful discrimination and/or harassment, and more importantly, they can impact employee morale.

Accordingly, employers should not dismiss microaggressions as insignificant slights and fail to investigate them. Rather, microaggressions should be investigated in the same thorough manner as other complaints.

Don’t ignore anonymous complaints

Employees are not always comfortable bringing forward complaints, and yet, employers should never ignore anonymous complaints. Employers should take all complaints seriously and conduct some level of investigation to ascertain the nature and scope of the allegations.

If the allegations are not specific enough to make findings but indicate a widespread problem, employers should consider whether a diversity, equity and inclusion (DEI) assessment or climate study is appropriate. It is important to consult legal counsel before conducting such an assessment or study.

Ultimately, investigations help employers of all shapes and sizes identify and resolve internal problems and reduce liability to the organization. Thus, it is important in all investigations — but especially in complex racial and other bias investigations — that employers select a highly qualified investigator and address all complaints in a fair and consistent manner.

Talesha Saint-Marc is a shareholder in Bernstein Shur’s Investigations & Resolutions and Labor & Employment Practice Groups. She can be reached at 603-665-8814 or tsaintmarc@bernsteinshur.com.

670 North Commercial Street, Suite 108, Manchester, NH (603) 623-8700 • www.bernsteinshur.com