People, including investigators, have opinions, but that doesn’t necessarily get in the way of doing impartial investigations into school or workplace claims of misconduct, which often center around sensitive issues such as complaints of harassment and discrimination based on being in a protected category. It’s crucial for investigators to make findings based on an impartial analysis of the facts, rather than personal biases. Properly trained investigators adhering to proven policies and procedures are able to do just that. This article explores how neutral evaluators maintain a balanced perspective for objective fact-finding.
Investigators are Humans with Personal Opinions
Yes, it is true that investigators are also humans and, as such, have biases and personal opinions, including at times on issues we investigate. So how can we make good on a commitment to be impartial in the work that we do?
In the current climate of polarization, it is particularly important to address how investigators can overcome perceptions of implicit bias associated with an individual’s frame of reference on hot button issues. Take, for example, the core value that many hold dear to promote inclusionary procedures in the hiring, education, and employment realms – frequently referenced as Diversity, Equity, and Inclusion (DEI) practices. These values are currently under attack in public discourse and can be seen as divisive by some. Does an investigator’s personal commitment to these values conflict with their ability to be fair in their work? It’s arguably quite the opposite. The point of DEI is the inclusion of everyone. It does not elevate one group above another but rather looks to respect all individuals in whatever diversity they bring. This includes straight white men. It includes Democrats and Republicans. Therefore, a true commitment to DEI is consistent with fairness towards everyone, as opposed to any specific group.
The Case for Embracing Investigator Diversity
A commitment to the principles of DEI means following a hiring process that does not include a litmus test about politics or personality. Foundationally, it encourages coworkers to respect each other’s differences. Further, when applied to investigations work, it means not pre-judging and acknowledging any potential biases – and purposefully putting them aside. A diverse office of investigators can be a benefit to all parties in an investigation, as a team’s ability to collaborate on assignments, methodologies and findings across individuals with diverse perspectives helps to provide a quality check to ensure any individual investigator assumptions or biases don’t inadvertently make their way into either the investigatory process or the final report.
Managing Investigator Biases
It is true that having the value of respecting all individuals does not mean that a person doesn’t have biases for or against certain individuals or groups. Studies show that everyone holds biases. However, as professionals, we can learn to put our biases and personal opinions aside. Attorney investigators are trained to do this – it is essential to the work. Note that judges and juries are expected to and can accomplish this when deciding cases. The same is true for independent investigators.
One thing that makes this easier is that the role of the investigator is limited to making factual findings as to what occurred. They are not making judgments regarding which viewpoint is right or wrong, good or bad. Instead, investigators focus on objectively evaluating the evidence, using a credibility analysis like that used in courts, to determine what happened and, at times, why it happened.
In law school, attorneys are taught to be able to argue both sides of a matter. This is good practice for being able to see multiple perspectives. What does this look like in an investigations practice? Consider the model for judges: they are expected to take in all of the evidence and make an informed decision. When hearing a case, the judge may find someone relatable, but that does not mean they will find in a particular party’s favor. On the other hand, the judge might find someone’s personality odious. Similarly, that does not mean the judge will find against them. Judges are trained to separate the person from the facts. The same principles apply to investigators.
Separating Personal Feelings from Facts
Most sitting judges, administrative judges, and arbiters come to their role after many years practicing as a litigator, often focusing on the representation of either plaintiffs or defendants. For example, a judge may have had a previous career representing plaintiffs in employment litigation. Would that hinder their ability to hear employment cases? The judge’s prior experience might create a sense of sympathy towards the individual who had lost their job, but sympathy and a finding in someone’s legal favor are two different things. Humans are capable of separating feelings from facts.
Here’s a practical example drawn from my prior service as an administrative judge. A nurse had been overworked and mistreated by the administration at her hospital. Out of frustration, she knowingly violated a rule regarding tracking medication. I felt sympathetic towards her. She seemed legitimately under stress at work and appeared to make a case that she had been treated unfairly. Nevertheless, knowingly violating a rule regarding tracking medication is considered misconduct under unemployment insurance law, and therefore, I found against her. As a neutral arbiter, in this case, I was able to listen to her side of the story and acknowledge it in my written opinion. In fact, she wrote me a thank you letter saying she realized what she did was wrong, but that she had wanted to feel heard and that during the hearing she did feel heard, which was evidenced by the way the decision was written. What a satisfying outcome.
Another example from my time as a judge involved a case where a grocery worker had taken expired food that was set aside to be thrown away, violating the grocery store’s rules. At first blush, it seemed to me that taking something that was going to be thrown away should not be problematic. Yet, the employer had rules against this, and the knowing violation of those rules was misconduct, regardless of my personal feelings about them. Similarly, my personal feeling did not influence the facts or the findings.
Why Impartiality Matters
Ultimately, the work of investigators is about allowing people to feel heard without being judged and then making reasoned decisions that are not impacted by sympathies. By maintaining our commitment to impartiality and fairness, we can ensure that our investigations uphold the principles of justice and integrity while fostering trust and respect.
