The recent media coverage and wide-spread protests have increased our collective awareness of the prevalence of racism in the workplace. For many organizations, this has triggered many complaints. Some focus on specific acts of racism against individuals; others allege longstanding discriminatory hiring and promotional practices. Most claim negligent or willful blindness on the part of those in power who may not have engaged in the racist conduct but knew of it happening and did nothing to make it stop.
When faced with complaints of racist workplace conduct, it may be tempting to take action to right the systemic wrongs and show you’re on the right side of this critical issue. However, to truly build a sustainable culture of equality, fairness and respect, it is imperative that you respond to these complaints by investigating them properly. This means that you should review the allegations promptly, carefully and comprehensively but without prejudgment or bias concerning anyone involved. This is not a matter of my personal opinion – this is the law.
The desire to remedy unacceptable and often horrific harassment and discriminatory conduct, while commendable, must be exercised after an objective investigation has taken place and not before. Acting on a complaint – or prematurely dismissing its merits – will only serve to make the situation worse. If you hastily deny an allegation, you will be actively contributing to workplace racism, adding to the already significant personal, financial and psychological damage of the victim. However, if you hastily denounce someone as engaging in racist behaviour when they have not, you risk being responsible for destroying their personal and professional reputation, along with the many costs that flow from being wrongfully convicted.
So, what do you do? As an experienced workplace arbitrator, mediator and workplace investigator, I know that these investigations are not easy. They are time-consuming, highly emotional and, at times, frightening for those involved. The investigator and their process must be as fair and supportive as possible for all participants.
It is critical that you review your investigative policies and procedures related to complaints of racism and consider the following:
- Ensure that any supervisor or leader who receives a complaint of racism – verbally or in writing – is mandated to report this complaint to a singular appointed person or team.
- That person/team is then responsible for initiating and overseeing the objective investigation of these complaints to ensure they are reviewed and acted upon in a consistent and timely manner.
- Those who become aware of a complaint of racism yet fail to report it to this team should be reviewed for their failure to do so.
- The appointee/team who receives these complaints is responsible for appointing an investigator.
- Anyone who is appointed to investigate these complaints must have demonstrable expertise in conducting workplace investigations, preferably with an emphasis on human rights matters. For more longstanding, severe or complex complaints, the organization should hire an external consultant.
- The organization should ensure that each party has an opportunity to be fully heard, without fear of repercussion or retaliation, and also that their information remains confidential. This does not mean that their information remains anonymous; it means that their information is shared only to the degree necessary to ensure a defensible and fair process.
- The investigator should be asked to investigate any alleged retaliation or breaches of confidentiality that relate to the investigation itself.
- The investigation must focus on the alleged communication or conduct of the accused. “I feel you’re being racist (or are racist)” cannot be investigated. Where does that feeling or impression come from? What did that person apparently say or do that has led to those feelings? It is those alleged behaviours or comments that need to be investigated, not someone’s personal opinion of the accused.
- It is important for the investigator to uncover and seek all information that is potentially relevant to the complaint. When did this happen? How often did it happen? In what context were the statements made? What was the entirety of the conversation that happened? Where did it happen? Who was there? What was the person’s tone of voice or demeanour at the time? Professional investigators can never be too curious or dig too deeply – it is only a defensible process if they seek to unpack the situation and learn as much as they can about the various concerns that have been raised.
- The person accused of “being racist” has a legal right to know the specifics of the concerns against them. What precisely are they alleged to have done or said that was considered racist? How was it considered racist (if it’s not apparent in the allegation itself)?
- After being told of the allegations against them, the accused has a right to fully respond by giving their own perspectives and information on what has been alleged. This is not some Monday night TV show where they are forced to answer “yes or no”. They have a right to deny the allegations, to acknowledge some aspects of the complaint but not all, or to admit to the allegations and provide additional information about the circumstances at the time. There is no such thing as giving the investigator “too much information”.
- At the end of the review, after collecting as much information as reasonably possible, and after hearing from those with relevant information about the alleged incidents, conduct or communication, the investigator must ask and answer “What most likely happened in this situation?” and “Did what happened relate in any way or to any degree to the person’s race, religion, place of origin or other related factors?” If the answer is yes, then the organization must step in and hold that person accountable. The degree of accountability will depend on the severity of the conduct as well as the person’s history of engaging in similar behaviour.
- If the complaint includes allegations of inaction or willful blindness on the part of leadership, then the investigator must also determine whether one or more leaders knew – or should have known – about the incidents that took place. If the answer is yes, then the organization must step in and hold those leaders accountable as well.
- If the investigator does not have a background in human rights law, then they are strongly encouraged to review their “findings of fact” (that is, “What most likely happened”) with legal counsel to determine whether the findings constitute racism (or inaction to racism).
The world of lawful workplace investigations is a complicated one. This summary is meant to be just that – a summary. But more importantly, it is intended to be a wake-up call in these tumultuous times. Yes, we should do the right thing by righting our workplace wrongs. And when it comes to investigating allegations of racism, doing the right thing means properly investigating these complaints before we act to ensure there is a fair process for all.
If racism, real or perceived, is affecting your organization, you must take proper action immediately. Please contact me today to discuss how we can make diversity, equality and fairness the hallmarks of your organization’s culture.
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