Applying DEI Practices to Internal Investigations Leads to Better Outcomes for All

 

In 1915, Dr. Carter G. Woodson, American historian, and Minister Jesse Mooreland established the Association for the Study of African American Life and History (ASALH)  and began what would eventually lead to the annual month-long honoring and celebration of African Americans. They chose February to coincide with the birthdays of Fredrick Douglass and Abraham Lincoln, both great American symbols of Freedom.

This year’s theme: Black Health and Wellness is an important opportunity for corporate leaders to educate themselves and support improvements in systems that disproportionately negatively affect Black Americans’ health and wellness. One key area for wellness improvement we must make is to ensure more equitable treatment in all phases of internal investigations –before, during, and after-by implementing diversity, equity, and inclusion (DEI) best practices.

Companies committed to authentic DEI must ensure that employee complaints alleging gender, sexual, age, physical abilities, or other forms of discrimination are conducted by investigators that interview, review documents, and draft reports through an unbiased lens.

An investigation void of DEI principles will be considered invalid and subject to attack. Moreover, companies that use investigators that are insensitive to the complexities of today’s employee population will experience negative workplace culture and low employee productivity.

In 2020, the consciousness of many companies was stirred by the murders of George Floyd and other African Americans.  In response to these killings, many S&P 100 companies pledged close to $3.9 billion to causes that promised to expand opportunities within Black communities. However, despite these good intentions, African Americans, people of color, and women are still underrepresented within the corporate landscape, including legal departments that lead and/or oversee internal investigations.

Internal and outside investigative teams that respond to allegations of workplace discrimination will be better equipped if they are staffed with professionals who possess diverse viewpoints and a variety of lived experiences. 

The International Bar Association recommends that companies weigh three (3) factors when deciding whether to retain independent outside counsel:

1. The nature of the allegations;

2. reputational impact of the issues under investigations; and

3. the need to disclose or cooperate with public authorities.

A fourth and equally important factor should also be considered at the onset of every internal investigation – diversity. The principles of DEI should be reflected in the investigation team and throughout every phase of the process.  

A corporation with an office in a metropolitan European city found it necessary to launch an investigation into an employee’s gender-based discrimination claim.  During witness interviews, the investigator attempted to create a timeline of events based on statements regarding a football game attended by several employees. The investigator was stumped as to the date of the game until his European colleague suggested they check the listings for “soccer” matches. In that case, the investigator’s background quickly solved a simple misunderstanding, which emphasizes the need for diversity in complex investigations.

Diversity allows corporate investigations to have greater depth and produce more objective reports. Diverse teams enable facts, documents, and witnesses to be evaluated with differing perspectives and slow a rush to judgment.

There is a lot of work to do when it comes to creating equity and inclusion in corporate America. This month, as we honor Black History, let us pledge to be part of the solution by investing in best practices for internal corporate investigations, and ensuring a healthier work environment for everyone.