The struggle to make the call: is an unfair investigation by a white investigator also racist?

A brief update and an interesting case.

Since my last post (6 months ago!) I’ve had an extended vacation,¹ done a variety of investigations, signed up clients for Canary and taught two day-long courses on workplace restoration and investigating discrimination in the workplace.²

I couldn’t stop thinking about one of the cases I cover in the investigating discrimination course. This case deals with a white investigator and arbitrator assessing complaints of racism - a common situation that raises the spectre of bias. I’ve summarized the case and my thoughts about it in this post. It’s a bit long, but hopefully it’s worth your while.

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The struggle to make the call:

is an unfair investigation by a white investigator also racist?

It’s rare to read a case that thoroughly dissects a workplace investigation. It’s even rarer to read a case that questions whether a white investigator has an unconscious racial bias.

This one does both.

The Incident

This case (a grievance arbitration) was based on a single interaction between two colleagues – the Grievor and “Ms. X”. On October 16, 2017, around 3:10pm, the Grievor walked down a corridor in her office towards a fax machine. Ms. X walked towards the fax machine from the opposite direction. In the slightly narrowed space in the corridor near the fax machine, Ms. X and the Grievor made physical contact with each other. According to the Grievor, Ms. X physically assaulted her by lifting her hands and pushing the Grievor with enough force that she almost fell. According to Ms. X, they merely bumped into each other. No one witnessed the moment when they made physical contact with each other.

The Investigation

Before the arbitration, the Grievor’s employer investigated this incident. Over the course of two months, an “experienced lawyer” (not to be conflated with an experienced investigator) interviewed various employees and produced multiple drafts of a report outlining his conclusions, which were judiciously reviewed by his colleagues. Ultimately, the investigator concluded that Ms. X’s version of the incident – that she and the Grievor gently bumped into each other when they made physical contact – was most likely what happened because he found her to be more credible than the Grievor.

The Arbitration

Neither the Grievor nor Ms. X provided a completely consistent account of this incident. There were slight variations in how they described their physical contact, their location in the office hallway, the speed at which they were walking before they made physical contact and their conversations after they made physical contact. Due to these inconsistencies, the Arbitrator found neither the Grievor nor Ms. X to be credible and declined to make a finding about the nature of their physical altercation. He simply found that there was neither an intentional push nor an inadvertent bump when Ms. X and the Grievor made physical contact with each other.

Investigation Deemed Unfair

At the arbitration, the Grievor argued that her employer’s investigation into this incident was unfair. The Arbitrator agreed, citing several flaws in the investigation:

• The investigator concluded, without canvassing this conclusion with the Grievor, that the Grievor’s complaint seemed “calculated to lead to...requested relief, including compensation”

• The investigator did not give weight to evidence that the Grievor told colleagues that she had been pushed by Ms. X immediately after the incident occurred

• The investigator relied on Ms. X’s diagram of the layout of the office where the incident occurred, which was inaccurate, and neither provided this diagram to the Grievor nor asked the Grievor or any other witness to draw such a diagram

• The investigator did not rely on witness evidence about a conversation between the Grievor and Ms. X that occurred after this incident, which contradicted Ms. X’s evidence of what she said to the Grievor during this conversation

• The investigator found Ms. X to be more credible in part because she admitted to swearing under her breath after this incident, which made her seem unappealing, but the Arbitrator determined that such conduct was not unappealing since it would not be something Ms. X would be disciplined for, therefore it did not support her credibility

• The investigator said that the Grievor did not explain why Ms. X would physically assault her, even though the Grievor provided evidence that she and Ms. X had a poor working relationship when they worked together two years before the incident

By conducting an unfair investigation, the employer failed to fulfill its legal obligation to “take every precaution reasonable in the circumstances” to protect the Grievor’s health and safety.³

No Unconscious Racial Bias in the Investigation

The Arbitrator rejected the Grievor’s argument that the investigator – a white man – had an unconscious racial bias that negatively affected his perception of the Grievor – a Black woman.

There were two key examples that suggested the investigator had an unconscious racial bias. First, in an initial draft of the investigation report, the investigator used the word “threatening” to describe the Grievor’s behaviour towards Ms. X after the incident of physical contact. This description was based on evidence from a witness. However, the witness actually described the Grievor as “loud” and “confrontational”, not “threatening”. Second, the investigator drew unfavourable conclusions about the Grievor – that she fabricated her complaint to obtain financial compensation – without sufficient evidence.

The Arbitrator acknowledged that these examples suggested that the investigator was influenced by negative stereotypes of Black people. But he would not go so far as saying that the investigator held an unconscious racial bias that affected his investigation. He determined: “Race is one of the possibilities for the way in which the Investigator conducted his investigation and reached his conclusions, but it is not the dominant possibility.”

The Struggle to find Unconscious Racial Bias

The Arbitrator said that it was particularly challenging for him to decide whether the investigator had an unconscious racial bias (“This is an incredibly difficult assessment to make”) and required a painstaking review of the evidence before him (“This conclusion is not made lightly”). He explained that he “struggled deeply with” this decision because he had to “ascertain what was in [the investigator’s] subconscious.”

I can’t ascertain what was happening in the Arbitrator’s subconscious when he wrote this, but I thought that it seemed both disingenuous and legally inaccurate. There is no legal requirement to ascertain what was in a person’s subconscious to make a finding that they engaged in an unintentional form of discrimination. The Arbitrator was required to focus on the effect of the investigator’s conduct on the Grievor; not the investigator’s subconscious or conscious intent to discriminate.⁴ And even if the Arbitrator was required to ascertain the investigator’s subconscious, he had no trouble doing so. The Arbitrator noted (without expressing any difficulty) that the investigation was unfair because, “It is likely the Investigator thought from the outset that the Grievor’s claim was improbable,” and the Investigator was “affected by his perceptions of the unlikelihood of [the Grievor’s complaint].” The Arbitrator easily concluded that the investigator subconsciously prejudged the Grievor’s complaint. So why did the Arbitrator struggle with the idea that the investigator’s prejudice was affected by the Grievor’s race?

Before enumerating the flaws in the investigation, the Arbitrator stated that the investigation did not meet “certain standards”, but he did not cite a single legal authority that elucidates these “certain standards”. This suggests that he identified these flaws by imagining himself as the investigator and considering how he would have conducted the investigation differently to meet these “certain standards”. As an Arbitrator who also conducts workplace investigations, his personal experience allowed him to easily inhabit the perspective of the investigator and determine that the investigator prejudged the Grievor’s complaint, which led to an unfair investigation. But deciding that the investigation was tainted by racism required the (white) Arbitrator to imagine the nature and impact of this investigation from the perspective of a Black person who participated in the investigation. Perhaps the Arbitrator’s struggle to determine whether the investigator had an unconscious racial bias arose from his (subconscious) discomfort with making a decision that was unmoored from his personal experience.

I am intimately familiar with this struggle.⁵ If I investigate a complaint raised by a Black person who alleges that they have experienced discrimination, the law requires me to determine whether this is reasonable. I must ask myself how a “reasonable” Black person, in the circumstances described in the complaint, might feel. The struggle is whether I, as a white person, can imagine who this reasonable Black person is and what they might feel like in the unique circumstances of the complaint.

It’s a struggle that many white people have not encountered until recently. The Black Lives Matter protests from the summer of 2020 and the ensuing explosion of diversity and anti-racism training compelled everyone to ask themselves how Black people feel in their workplaces, schools, and communities. For many, including those who readily condemn discrimination, this required a great imaginative leap – a struggle to imagine another perspective.

When we lack the curiosity, courage, or personal experience to overcome this struggle – to take this imaginative leap – we may miss moments of racism and quietly reinforce the pervasive “system” of systemic discrimination. When investigators or arbitrators experience this struggle, they need to explain it clearly. Only then can others recognize this struggle and learn how to overcome it.

1. The above photo that I took while in Vancouver this past August was not part of my vacation. It just reminds me that the summer did actually happen.

2. I delivered these courses at the Workplace Institute.

3. Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 25(h).

4. See: Peel Law Association v. Pieters, 2013 ONCA 396 at para 111.

5. Yes, I might be projecting this struggle onto the Arbitrator.