Discrimination in the workplace is an issue many employees will face at some point in their career. In Australia, on average, 20% of employees experience discrimination for reasons such as their sexuality, religion, gender and culture. Every company needs to handle discrimination in the workplace as a sensitive matter and ensure that there are many strategies in place to discourage such behaviours. Employers should try to establish a clear and confidential complaint line for staff to disclose incidents of discrimination. Managers must then try to resolve the conflict and warn employees about the consequences of unethical behaviour.
However, it is impossible to avoid situations where an investigation needs to be conducted. Companies have to be prepared for every scenario and be ready to respond to complaints with an investigation if required. As this may be a difficult situation for both the accused and the accuser, it is important to remember that everything should be handled with care. An employee should not be labelled as guilty before the investigation concludes and no action should be taken that could jeopardise the careers of staff.
How does discrimination in the workplace occur?
Discrmination can occur in a number of ways. It could be that an employee is constantly harassed and bullied by members of their team or members within their company. It could also be that they are not given the same promotional opportunities due to characteristics such as gender, nationality or age. Employees may be excluded from team activities such as lunches or they may receive harsher feedback for making minor mistakes compared to their colleagues.
Discrimination may also occur before a person even joins the company. They may not be hired for a role or they may be given worse benefits than their colleagues in the same position.
Unethical behaviour can be subtle. Sometimes it could also be unconscious. The victim may not be given as many opportunities to advance their career and may not be given the same training as other workers. They may be chosen as the first to be redundant or dismissed. In some instances, they may be given harder tasks to complete or much easier, depending on how they are viewed by their superiors. So while discrimination in the workplace may be difficult to spot, sometimes it piles up to the point where it affects an employee’s mental health and well-being. Indirect, non-confrontational actions can prove to be just as damaging as direct harassment.
Complaints about discrimination in the workplace
Once a manager has received a complaint, they should try to collect more information and call staff to come forward if they feel more comfortable or provide details through confidential means. The more information they provide, the easier it will be to understand what the incident is, how often it occurs, who are the people involved and how severe it may be. A manager may choose to speak with the person being accused and inform them of the complaints made against them and try to resolve the situation by conciliation.
If conciliation does not work then an investigator will need to be chosen to handle the case. The investigator may be internal or external but in many cases it could be deemed that an external investigator is needed. This might be because the complaint is against a manager or a person with power within the workplace and an internal investigation could be seen as biased and not objective. It could also be that the human resources staff do not feel experienced enough to handle the case and would prefer for an external party to step in. In some cases, a third party may request an external investigation such as the government or an insurance company.
As every incident is different, employers will need to look at each complaint carefully and decide what the best course of action is. It is important to remember that managers may also be victims of discrimination, so if the complaint involves them, in some scenarios they might be the victim.
All employees should be trained to recognise what discrimination can look like as sometimes they may not realise that they are treated unfavourably. It is important to highlight what does not count as discrimination. Actions such as negative feedback, different pay for different roles and pointing out mistakes are not considered discrimination. Managers should focus on the way they deliver feedback to prevent employees from feeling like they are treated unfairly and hence reduce the number of complaints.
Investigation into workplace discrimination
Employers should share with employees what their rights are in an investigation. It is important to take action quickly and start the process as soon as possible. This will not only result in a more effective result but will also make employees feel cared for and valued.
An investigation that focuses on discrimination in the workplace may require employees to come forward and share more details and evidence with the investigator. However, a complainant may be reluctant to reveal their identity or continue with the investigation because they are afraid of retaliation or fear that they do not have enough evidence to prove their claim. Investigators can talk with the complainant and establish whether the evidence is adequate. They may ask for more employees to share their own experiences or look for more information through other channels.
Investigators and the company should assure the employee that their position will not be jeopardised and they will not be treated differently as a result of the investigation. To guarantee this, the organisation may choose to move the employee to another location temporarily or suspend the accused during the investigation.
During the investigation, the investigator should:
-Follow policies and procedures
-Collect all relevant evidence
-Produce an investigation report
Follow policies and procedures
Every company has its own way of doing things. There are steps the investigator must follow to comply with laws, and regulations, but internal requirements as well. The policies and procedures can cover the initiation of the investigation, the collection of evidence, the retainment period and how to treat sensitive matters. The policies and procedures may cover events before the investigation or what is needed to investigate a complaint.
Companies need to be aware and stay up to date with the relevant laws and regulations when writing their policies. Recently, the Respect@Work Bill was passed which aims to protect employees and prevent hostile work environments. Bills similar to this make it less likely for employers to ignore issues like discrimination in the workplace and they will not be able to dismiss an investigation if it is needed.
Investigations into discrimination in the workplace can be a complex topic to explore as people may be unaware that they are treating someone unfavourably. As in every case, the investigator should not jump to the wrong conclusions and try to understand what the accused did, how severe it was and what are their feelings surrounding the incident. The investigator should show compassion to all parties as the victims(s) may be suffering regardless of whether the discrimination was intentional or unintentional.
Being open and giving both sides a chance to explain their side of the story is important in understanding what the next steps will be and it can also contribute to a better and more suitable outcome.
Compassion also requires an investigator to be fair. Procedural fairness is crucial to ensure that the discrimination case does not escalate. All employees involved should be given the same notice for meetings and the investigator must not try to link irrelevant events of the past to the investigation.
Confidentiality must be maintained for all investigations. An investigation into discrimination in the workplace could be damaging to the career of the accused and could start gossip and create rumours about their character. If rumours or evidence is leaked, the accused can have grounds to start a lawsuit against the company for negatively impacting their career. Therefore it is essential that all parties involved understand why confidentiality is mandatory. The investigator should explain to employees what steps they should take to ensure that information is not leaked to outsiders and discourage them from disclosing details to friends or family.
The investigator should also explain what consequences can follow if employees are found to have shared information with third parties. It needs to be stressed that confidentiality is in place to protect them and the accused as rumours may start for the victim as well. The investigator may choose to conduct the interviews in a confidential place and use a secure case management system to avoid data leaks.
Polonious not only offers a secure place to store documents but also a confidential service where only those required will have access to evidence. We are ISO 27001 certified and comply with strict standards surrounding sensitive matters such as discrimination. Our case management system can make the investigation less complex and give investigators a space where they can access all evidence from one place, anywhere, anytime. Interviews for the investigation can be scheduled through our system and evidence can be easily linked to each case. Do you want to give us a try? Request a demo today!
Collect all relevant evidence
Evidence for a discrimination investigation could include decisions that were made for actions the employee took. The investigator could find that the employee has great performance reviews, has been with the company for a long period of time and has asked multiple times for a promotion. However, every time the promotion is denied for another less experienced employee to take the position. This evidence could be found through documents and emails while other evidence such as bullying and harassment or exclusion from workplace lunches could be found as messages or images.
Evidence could also include a history of corrective action, not only for the parties involved, but for other employees as well. As this is an investigation into treating an employee differently, the investigator will need to collect evidence related to corrective action or feedback for similar incidents. They should then assess all files and compare whether a different approach was taken when handling the mistake of one employee over the other. If the evidence shows that one employee received harsher and less professional feedback it might be an indication that discrimination was present in the decision-making.
The difficult part of a discrimination case is deciding whether the different approach was appropriate based on the circumstances. Did the employee deserve the harsher feedback? Collecting evidence from various sources can assist in deciding whether the actions of the accused were appropriate or were done maliciously.
Other evidence that may be relevant could be CCTV footage of an employee harassing another or interviews of witnesses.
Produce an investigation report
As mentioned, procedural fairness is very important in a discrimination investigation. The employer should not try to dismiss an employee or take corrective action before the investigation has concluded. It could be seen as aggressive and unjustified since the investigation was conducted to uncover exactly what happened and lead to a better workplace. Making a conclusion too early can backfire and lead to retaliation or the start of another investigation.
Once the investigation has concluded, the investigator can write a report on the appropriate corrective action that should be taken. The report should include the relevant facts and evidence related to the incident. It should also have an outcome, whether the allegations were proven, not proven or the investigation was inconclusive.
The severity of the incident will determine whether the employee needs to be dismissed, receive training or receive a warning. There may also be other forms of corrective action that the company can choose. However, all efforts should be aimed at discouraging discrimination in the workplace and should show consequences will follow if employees do not abide by the rules. During this stage, it is essential that both the company and the investigator discourage any form of retaliation. They should ensure that all employees understand how the outcome was reached and could give them other options if they feel it was unjust.
Some things to remember
Investigations are conducted to make employees feel safe and create a better work environment. Investigations into discrimination in the workplace aim to show staff how the company takes complaints and issues like this seriously and values its employees. The goal of every company is to ensure that unethical or illegal behaviours are not taking place and the investigation can indicate whether stricter policies and better support are needed.
If you want help with your investigation, Polonious offers a wide range of benefits from lower administrative effort to reduced costs. Reach out and have a chat with us!
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