Three Reasons Why Impartiality in Workplace Investigations is Critical
This post was originally published on www.maricopabar.org.
Workplace investigations are increasingly in the public eye. Consider the Phoenix Suns, where an investigation sustained claims of race- and gender-based misconduct against the former owner, Robert Sarver, resulting in a one-year suspension and $10 million fine.[1] Or Uber, which fired 20 employees after an investigator interviewed 200 people about workplace culture.[2] Outside the public eye, employers are realizing the value in conducting prompt, thorough, and – especially – impartial workplace investigations when complaints arise. Savvy employers and their counsel rely on unbiased workplace investigations to ensure employees have a hostile-free working environment. Doing so has the added benefit of limiting liability in some cases of litigation. Using a third-party impartial investigator also avoids actual or perceived bias.
What Does “Impartiality” Mean, Exactly?
In the context of a workplace investigation, “impartiality” means the ability to separate one’s self from, and not have any personal or professional interest in, the outcome of the investigation. The Association of Workplace Investigators’ Guiding Principles for Conducting Workplace Investigations states: “Whenever possible, the investigator should be someone who is, in fact, impartial and who is perceived by the participants to be impartial.”[3] This means it does not matter to the investigator whether or not the conduct occurred. The investigator’s future is not at stake – the internal investigator still has a job or the external investigator still gets paid – whether the allegations are substantiated or not. An impartial investigator objectively gathers and analyzes relevant evidence and comes to a well-reasoned conclusion regardless of outside influences.
So, who should conduct the investigation to ensure it is impartial so it withstands scrutiny? While sometimes the investigation can be handled internally or by the employer’s counsel, both options have significant risks. As laws and best practices have evolved, there has been a strong shift towards retaining an independent investigator. Whoever ultimately conducts the investigation, it is imperative to ensure they are impartial.
1. Improve the Work Environment
First and foremost, impartial investigations resolve conflict and improve the working environment. Complainants want to have a comfortable working environment. They want to be heard if they do not. Respondents want to be treated fairly, and also be heard. In the face of workplace conflict, both parties can feel like their livelihoods and reputations are in jeopardy. Good employers want to do the right thing.
Everyone involved wants to know that the matter is being handled with care and professionalism. Any missteps will have a ripple effect throughout the workplace effecting employee morale and confidence in the employer.
A skilled investigator who is perceived as impartial helps navigate these complex situations. Witnesses will communicate more freely with someone whom they perceive as objective and acting in good faith. This leads to more accurate information, which produces useful findings that the employer and counsel can use to make sound decisions.
2. Limit Liability
Employers need to have a policy and process to respond to complaints, including conducting an impartial investigation. If they do – and they follow it – it may limit liability in ensuing litigation.
The Equal Employment Opportunity Commission (“EEOC”) – the federal agency responsible for processing and investigating employees’ complaints of harassment, discrimination, and retaliation – requires employers to investigate when they become aware of allegations involving such claims.[4] Federal courts have held that employers have a duty to investigate when they know, or should know, of allegations of harassment, discrimination, or retaliation.[5] A prompt, impartial, and thorough investigation is an essential component of an employer’s defense in harassment cases involving co-workers, non-employees, and supervisors, where no tangible employment action was taken against the complainant.[6]
3. Avoid Actual or Perceived Conflicts of Interest
An impartial investigator can avoid potential conflicts that can arise from the investigator’s other roles and relationships. When the stakes are high, both impartiality in fact and the perception of impartiality are crucial.
The Dueling Roles of Counselor and Investigator. An impartial investigator should not also serve as counsel for the employer. An employer’s counsel who undertakes an investigation risks conflicts in balancing their other roles as advisor and litigator. The Arizona Rules of Professional Conduct states a “lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness,” except in limited circumstances.[7] Where counsel investigates issues that end up in litigation, they could become a necessary witness. Even if the investigation was conducted by someone else within the advocate’s firm, it is problematic for them to put their partner or associate on the witness stand to assert they conducted an impartial investigation. Opposing counsel could probe the firm’s relationship with the client, other work performed, total billing to the client over the years, and more. It also may be difficult to separate advice from the investigation conclusions, raising possible attorney-client privilege issues.
Moreover, impartial investigative services and advocacy are entirely separate functions bound by contradictory duties. As an advocate, the attorney’s aim is to be a zealous advocate and obtain the best outcome for their client.[8] In contrast, an investigator’s obligation is to be impartial and unbiased – and not influenced by how the outcome might affect any interested party. An attorney who acts as an advocate and investigator blurs these lines and undermines the effectiveness of the investigation, which inevitably produces negative results for the client. A lack of separation can call into question the objectivity of the findings. Opposing counsel will likely challenge the investigation as contrived to benefit the employer. If the jury, judge or other trier of fact lacks faith in the investigation, any decisions made or actions taken based on the investigation also come under scrutiny.
Relational Conflicts. An impartial investigator should not be affected by prior relationships with the parties or pressures from superiors. Investigations conducted by internal employees – including managers, human resources employees, or in-house counsel – are often fraught with relational conflicts. Can someone who has a stake in the outcome impact the investigator’s employment? Does the investigator report to someone involved in the investigation? Does the investigator have personal relationships with the complainant, respondent, or key witnesses? Does the investigator have past experiences with one or more of the parties that might color their perceptions of what occurred? If so, these influences (actual or perceived) threaten the reliability of the findings and are fodder for challengers to undercut the investigation.
In sum, an investigation must be impartial to effectively resolve disputes and ensure a fair and productive work environment.
[1] NBA, NBA releases findings of independent investigation into Robert Sarver, Phoenix Suns, (September 13, 2022) https://www.nba.com/news/nba-investigation-robert-sarver-suns-official-release
[2] Mike Isaac, Uber Fires 20 Amid Investigation into Workplace Culture, N.Y. Times: Technology, (June 6, 2017) https://www.nytimes.com/2017/06/06/technology/uber-fired.html
[3] AWI Guiding Principles https://cdn.ymaws.com/www.awi.org/resource/resmgr/files/publications/AWI-Guiding-Principles-Broch.pdf; AWI was founded in 2009 and is a professional membership association for attorneys, human resources professionals, private investigators, and others who conduct and manage workplace investigations. It has more than 1400 members internationally.
[4] U.S. Equal Emp. Opportunity Comm’n, EEOC-CVG-1999-2, EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, (June 18, 1999) at V.C.1.
[5] See, e.g. Nichols v. Azteca Rest. Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001); Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir. 1995), as amended (Apr. 24, 1995); Bator v. State of Hawai’i, 39 F.3d 1021 (9th Cir. 1994.)
[6] Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. Boca Raton, 524 U.S. 775 (1998); U.S. Equal Emp. Opportunity Comm’n, EEOC-CVG-1999-2, EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, (June 18, 1999) at V.C.1.
[7] AZ ST S CT RULE 42 RPC ER 3.7: The exceptions include cases where the attorney’s testimony relates to an uncontested issue, the testimony relates to the nature and value of legal services rendered in the case, or disqualification of the lawyer would work substantial hardship on the client.
[8] AZ ST S CT RULE 42 RPC ER 3.1, cmt. 1
