<< Return

Decision-Making in Workplace Investigations: Keep it Fair


August 20, 2018  |  Janine Yancey


Now more than ever, companies are being held to a higher standard when it comes to workplace misconduct. They must have reliable and safe methods for employees to report misconduct, and they must establish trustworthy mechanisms for investigating and resolving those concerns. That means making sure that your decision-making when investigating claims of misconduct is free of actual or perceived bias.  We hear about the mental shortcuts our brains take to get through our everyday lives. Research tells us that many of these shortcuts are necessary and harmless, but more and more studies show that these shortcuts are sometimes quite damaging, especially when it comes to basing our workplace decision-making on stereotypes and faulty assumptions.

The discussion around unconscious bias at work has primarily focused on the employee life cycle—from hiring to promotions and from employee development to pay equity. An area that hasn’t been explored as extensively, however, is how our unconscious biases affect our ability to make sound decisions in the area of workplace investigations.

Corporations Must be Fair When Receiving and Addressing Complaints

How do we ensure that our decision-making is fair from the time a complaint is made until the investigation is finalized and a resolution is implemented? First, it requires a recognition that these unconscious biases exist and that they may inadvertently taint the decision-making of anyone associated with the complaint-investigation-resolution process.

This means that line managers—the group employees are most likely to turn to if they have a concern—must know how to distinguish between a relatively straightforward employee relations or performance issue (meaning an issue they can likely resolve on their own) and an issue that presents a more serious complaint that needs to be formally investigated.

And then there are the people in charge of actually conducting the investigations–are they being fair when making decisions about important issues like whether to investigate, who to interview (or not interview), or when making credibility determinations?

Finally, those in charge of participating in the process of fixing problems uncovered by a workplace investigation must be equally careful to make sure their own biases don’t negatively impact their decision-making.

How Unconscious Bias Can Negatively Impact Workplace Investigations

So what are some of the most important ways to watch out for unconscious bias when receiving employee complaints, investigating those complaints, or implementing remedies to make the workplace better?

There are several, but two of the most important are confirmation bias and affinity bias.

  • Confirmation bias refers to our human tendency to look for evidence that confirms our preconceived notions. That means that if a line manager automatically thinks that an employee who complains of misconduct is lying, that manager will look for evidence to confirm that belief or, worse, may decide that there is no need to investigate. This type of bias also creeps into decision-making when an investigation is conducted. An investigator who reaches a conclusion before considering all the evidence might decide to only speak with witnesses she knows will support that early conclusion. This almost always leads to a conclusion that is based on an incomplete picture.
  • “Similar to me” bias refers to our tendency to favor information from those who are “like us” (or to discount information from those who are different from us). The affinity might be based on factors such as race/ethnicity or gender, but in the case of investigations, an equally dangerous affinity might be based on position (is the accused a manager like me?) or other shared characteristics (the accused is married like me, is the same religion as me, and since I’d never engage in the misconduct, I bet he didn’t either). Failing to recognize and eliminate affinity bias can have dire consequences during the investigation process and is equally dangerous when deciding on consequences to the misconduct (typically seen in lenient discipline if the person found to have misbehaved is “like” the decision-maker).

One hallmark of environmental health is the extent to which companies establish procedures for handling complaints of misconduct, and the extent to which they follow those procedures when employees raise concerns. Eliminating unconscious bias from that process is vital for employees to feel they are part of an organization that takes complaints seriously, investigates them fairly and distributes discipline for misconduct in an even-handed way.


Janine Yancey

Janine is a passionate advocate for healthy workplace culture. As a former employment lawyer, Janine founded Emtrain to bring a blend of educational content, technology, behavioral science, and data analytics to stop harassment, bias and ethics violations and improve workplace behavior. Janine served as an expert witness in 2018 to the California Senate and helped draft California's newest harassment training law (effective January 2019). Janine is frequently interviewed on workplace culture topics and has been quoted in The Washington Post, Fast Company, Fortune's The Broadsheet, USA Today, Bloomberg Business, TechCrunch, and Startup Grind.



Interview with Nancy Douyon, Emtrain Expert

Read More >>

Managing Unconscious Bias with Employee Differences

Read More >>

Teaching Black Lives Matter: Unconscious Bias Training

Read More >>