Workplace investigations continue to be a hot issue for the courts. On December 23, 2013, a Federal Court in Connecticut, in an age discrimination case against IBM, precluded evidence of an internal investigation that found IBM had treated the plaintiff fairly. IBM wanted to show it did a fair investigation and that based on the investigation it acted properly in terminating the employee. However the court found that the probative value of entering that investigation into evidence did not exceed its prejudicial effect, because it was one sided. The court determined that the investigator was not neutral due to his failure to interview witnesses who might support the plaintiff’s contentions and due to the focus on plaintiff’s job performance, rather than his allegations of age discrimination. In conclusion, the court found that “There is also reason to suspect that the purpose was to exonerate IBM more than to determine if Mr. Castelluccio was treated fairly.”
When I review an investigation like this I have to wonder if the investigator thought he/she was being impartial. Without a constant check on our own biases it is all too easy to work toward a foregone conclusion, and one that confirms what the employer thinks to begin with – this is what is meant by confirmation bias. Only by truly looking at all sides, and carefully weighing that information, can an investigator come to a fair conclusion. And it may mean delivering news an employer does not want to hear. Perhaps, in this case, if the investigator had really considered the employee’s side of things, he would have come to the same conclusion. But without his doing so and making that clear by whom he interviewed and what he considered in his report, this investigation made things worse, not better, for the employer.
This case underscores the need for employers to ensure that the investigations they are conducting are truly fair and unbiased. A biased investigation may come to the result the employer hopes for, but be more costly in the long run. Employers should carefully consider bringing in an outsider when they do not have the internal resources to do a truly fair and unbiased internal investigation.
The case is Castelluccio v. International Business Machines Corporation, 2013 WL 6842895.