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Journal of Law and Policy

Ashley Lattal

Abstract

Workplace investigations into complaints of harassment, discrimination, and other allegations of workplace misconduct have become a critical method for employers to establish that they have complied with certain obligations to provide a discrimination-free workplace. As a result, the fairness and effectiveness of the workplace investigation process utilized by employers has increasingly come under judicial scrutiny. The nature of workplace investigations rests upon the assumption and expectation that workplace investigators are capable of being impartial in making findings of fact. For this reason, courts have identified the impartiality of the investigator as a key tenet of a fair and effective workplace investigation.

Yet, mounting scientific evidence indicates that our automatic cognitive biases unconsciously steer us towards biased behavior. Such unconscious biases present a significant hurdle to attaining true impartiality and are likely to impact the workplace investigator’s role.

Workplace investigators, who are not specifically regulated, must educate themselves as to the potentially detrimental impact such biases can have at each stage of the process and make conscious and consistent efforts to reduce that impact. While unconscious biases can be difficult to overcome, workplace investigators can employ bias reduction strategies to attempt to ensure that hidden biases do not taint their conclusions.

After exploring the workplace investigation process and the critical role of neutrality in workplace investigations this article examines the emerging research in the science of unconscious bias. It then discusses court cases in which bias has or may have impacted the processes and outcomes of workplace investigations. This article concludes by proposing possible solutions to the problem of unconscious biases in conducting workplace investigations.

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