Selecting An Investigator in the Era of “Me Too” and the Fight for Racial Justice
Since the onset of the “Me Too” movement, and now during the nationwide fight for racial justice, those seeking an independent investigator have an even larger task in determining who is best qualified to conduct investigations into highly sensitive and political issues. Individuals tasked with finding the best investigator must consider several factors, including the qualifications of the investigator, the investigator’s subject matter expertise, whether or not the investigator can be impartial, and whether to select an investigator who is the same race or gender as the complaining party.
Qualifications. No matter the subject of the investigation, the first and foremost consideration should be whether the investigator is qualified to conduct the particular investigation. Factors to consider in determining the qualifications of the prospective investigator include: how long the investigator has specialized in investigations, how many investigations the investigator has conducted, the relevant training the investigator has received, whether the investigator specializes in certain types of investigations, and their references. Additionally, if a single investigator is relatively new to conducting investigations, consider whether there are other, more senior, investigators available to create a strong team of investigators. Utilizing a team approach can be very valuable for high profile, expansive investigations.
Subject Matter Expertise. Closely tied to the investigator’s qualifications is whether the investigator has subject matter expertise for the investigation at hand. For example, if the allegation is a Title IX complaint arising from an alleged sexual assault, choose an investigator with training and experience conducting investigations into allegations of sexual assault, including experience conducting “trauma informed” interviews, which differ in certain respects from typical investigative interviews. As another example, if the investigation relates to allegations against public safety officers, you need an investigator with knowledge of the laws that apply to public safety investigations, specifically the Public Safety Officers Procedural Bill of Rights and Firefighters Procedural Bill of Rights. A third example relates to allegations of harassment, discrimination, and retaliation. In these matters, select an investigator who has a deep knowledge of harassment, discrimination, and retaliation laws. Even though it is not the investigator’s role to make legal findings, a thorough knowledge of the applicable laws will appropriately guide the investigative strategy.
Impartiality. It is always essential that an investigator be impartial. But what does impartiality mean in the current climate? Consider the current racial justice movement advocating for police reform. More independent investigators are being called upon to investigate allegations of police misconduct. Some people are strong proponents of the Black Lives Matter movement, for instance, and may have certain preconceptions about police officers accused of misconduct. Other people, especially those with a law enforcement background or affinity, may feel just as strongly that the majority of police are being unfairly maligned and wrongly accused of misconduct. Those of us who conduct investigations are not immune from potential biases, whether conscious or unconscious. Therefore, as the person selecting an investigator, we encourage you to have an honest conversation with prospective investigators about their views on the issue to test whether they can be impartial. This is not only limited to public safety investigations, but to all investigations where there is a significant potential for bias.
Aligning The Traits Of The Investigator And Complainant. Another issue we are seeing more often is requests from clients for an investigator that shares the same gender and/or race as the complainant. The usual rationale for this request is that a complaining party of the same gender and/or race as the investigator may feel more comfortable opening up to the investigator due to their common traits.
While we understand why that may be a consideration, we recommend you carefully examine whether this request evinces implicit bias against qualified investigators who do not share the same traits as the complaining party. There is often an assumption, for example, that only a female investigator can investigate sexual harassment or assault complaints made by females. Built into this assumption is the erroneous belief that only a female can establish rapport with another female when the allegation is one of sexual harassment or assault, and it dismisses the reality that there are many skilled male investigators who are trained to investigate harassment and assault claims in a sensitive and trauma informed manner. This type of thinking also calls into question whether a male who has been accused by a female of harassment or assault would reasonably feel that he could not be treated fairly by a female investigator.
You may also want to test your assumption as to whether a complainant of a certain race will only consider the investigation to be fair if the investigator is the same race as the complainant. Has the complainant requested an investigator of the same race, or are you making an assumption that the complainant will only consider the investigation to be fair if the investigator is the same race? It is important to reflect on whether the complainant may feel “tokenized” by the selection of an investigator of the same race or believe that the employer only chose the same-race investigator for the purpose of optics in the event the investigator does not sustain the allegations. While we recognize there may very well be valid reasons in certain circumstances to select an investigator of the same gender and/or race as the complainant, it is important to treat the selection process holistically and to guard against implicit biases that may improperly influence the decision.
Ultimately, the goal in any investigation is to select the most highly qualified investigator with the subject matter expertise required for the investigation, the skill to build rapport and empathy with all parties and witnesses, and the ability to be impartial. Keep these tips in mind the next time you need to commence an investigation into highly sensitive or political issues.
Nikki Hall is a Managing Partner of Van Dermyden Maddux Law Corporation and heads up the firm’s San Rafael office. Having specialized in employment law since 1996, Nikki has represented both employers and employees.
The foregoing is for informational purposes only and is not legal advice, nor should it be construed as such.
