A commentary by Tony McKone from the Association of Workplace Investigators Inc (AWI) Conference, Marina Del Rey, USA.
Back in September 2019, I attended the 10th AWI Annual Conference at Marina del Rey, Los Angeles, California, USA. On opening day of the conference one of the topics presented was “How to believe women and maintain the integrity of your investigation.” This topic was facilitated by Kirsten Prinz, founder of The Prinz Law Firm and Christina Hynes Mesco, counsel from The Prinz Law Firm.
The Believe Women campaign followed on from the #Metoo movement after the flashpoint that resulted from the Kavanaugh v Ford hearings.
The premise behind the "Believe Women" movement was that, in the USA, it typically took three to four women testifying that they had been violated by the same man before their employer even began to make a dent in a denial of the man they were complaining about.
As workplace investigators Kirsten and Christina put forward that it is our role to base any investigation on the facts of the case, and that gender or for that matter ethnicity or any other factor, should not play a determinant factor in the merit of a complaint. I took from their presentation that we, as workplace investigators, even in New Zealand, need to make sure our prime focus is on uncovering the facts. The challenge, as I see it, is for employers is to avoid being swept up in the #MeToo and to ensure that objectivity is not being overridden by ideologies that could be seen as seeking to “reclaim” male dominance in society.
As a workplace investigator, I see our role as being one of bringing a sense of balance and caution to ensure an appropriate response to the first, not the fourth or twentieth complaint a woman raises against a man. Kirsten and Christina state that reasonable caution needs to be applied to ensure that we are not blindly adhering to the "Believe Women" movement and that we insist upon objectivity and carefully weigh up the evidence and follow due process when investigating a complaint.
Kirsten and Christina put forward that workplace investigations can believe women and still maintain a credible investigation by applying objectivity, empathy and credibility to our process.
In undertaking our investigations, we need to be constantly checking our own objectivity to ensure that we don’t have any conscious or sub-conscious bias entering our process. Christina stated that as a human being, our brains are lazy, and the more we repeatedly see the same types of behaviour the more we are likely to sub-consciously think we know what is going on and make a sub-conscious finding without truly objectively looking at the facts. Having a peer review of our reports can be one way of checking to see if we have missed the facts and have unconsciously introduced unfounded bias into our findings.
Kirsten and Christina reminded us that employers (and consequently investigators) we need to ensure that we treat any complaint from a woman by giving it the same weight as we would if the complaint were from a man. As an investigator we also need to remember that someone who has been the alleged victim of trauma or who has been subjected to a stressful situation will have difficulty in recalling the event. This will be why there is a gap of time between the event occurring and a complaint being raised. This does not necessarily mean the complaint has less credibility.
As an investigator we need to ensure that we are being fair and neutral and treat all complaints, regardless of who raises them equally, and let the process uncover the facts. In dealing with a complaint we also need to ensure that we act with empathy, and we should affirm the experience of the complainant but ensure that we do not make premature determinations before we have uncovered all the facts and that our findings and recommendations are supported by the facts we uncover in our investigation.
McKone Consultancy is available to assist you should you require an independent, neutral investigator to investigation an allegation of inappropriate conduct or behaviour in your workplace.