Putting Humanity into HR Compliance: #MeToo and Confirmation Bias

 

January 22, 2019
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Former employment attorney and author Jathan Janove writes for SHRM Online on how to inject greater humanity into HR compliance. Jathan welcomes your questions and suggestions for future columns. Contact him at the e-mail address at the end of this column. 

HR's reputation has taken a hit in the #MeToo era. Rightly or not, HR has been accused of overlooking, ignoring or even enabling sexually harassing behavior.

Rather than join in the criticism, I'd like to look at the issue from the perspective of what behavioral economists and psychologists call "confirmation bias."

Confirmation bias is the tendency to evaluate information with a view to supporting what we're already inclined to believe, which often consists of what we perceive to be in our best interest. Subconsciously, we filter information, selecting and ignoring facts and interpreting ambiguous information in favor of a preconceived hypothesis.

How does confirmation bias play out in sexual-harassment investigations?

If I'm your company's HR director, and you come to me with a sexual-harassment complaint, it's my job to investigate and determine what I believe more likely than not occurred.

However, if the person you are accusing outranks you and me, I may be putting my job and career at risk if what I find supports your allegations. This is especially so when there's evidence that people above the alleged bad actor are complicit in the harassment.

Thus, I may be apt to conduct the investigation and evaluate the evidence in ways that make it less likely that I'll validate your complaint, regardless of its veracity. Subconsciously, I want to believe what's safest for me to believe.

This isn't corruption. It's human nature. As Annie Duke explains in her book Thinking in Bets (Portfolio/Penguin, 2018), "We are wired to protect our beliefs even when our goal is to truthseek."

And even when we know better, we may not do better. "Just because you're aware of confirmation bias doesn't mean you won't succumb to it," said Erin Bair, J.D., director of training and organization development for Cascade Employers Association in Salem, Ore. "Sometimes being aware of a bias can give us a false sense of confidence that it won't affect us."

HR's own responsibilities may get in the way of conducting a good investigation. The unconscious tendency to align with those who have power is complicated by an array of factors, both on the complainant's side and HR's side. HR is usually overstretched. If you have e-mails piling up, deliverables on projects due and lots of other work, you might not have the time and resources to put into an investigation, said veteran workplace investigator Jill Goldsmith, J.D., who works in Portland, Ore.

"On the complainant side, sometimes they are so anxious about even complaining that they don't tell their story in a logical, concise way, hitting all the facts in order as required by the company's policy. In fact, they almost never do."

So what can be done?

San Francisco-based workplace investigator Allison West, J.D., SHRM-SCP, suggests that at the outset, "HR should determine, based on the facts, if [it is appropriate] for HR to conduct the investigation. No matter how unbiased HR thinks it can be, sometimes it needs the confidence and strength to say the investigation should be conducted by someone outside the company."

And if HR has had to conduct performance management with the complainant or had other interactions with the employee, "then maybe HR should not conduct the investigation," she added.

If you use an outside investigator, make sure he or she is truly independent. When the investigation is completed and findings are made, the investigator's engagement should end without expectation of any future business with your company.

If HR conducts the investigation, Bair, Goldsmith and West suggest the following:

  • Get trained. And not just the usual training on the basics of investigations. Go to trainings on diversity. Read accounts from #MeToo survivors. Talk with your colleagues. Immerse yourself and understand the perspectives of all parties. 
  • Set a relaxed atmosphere for your conversation with the complainant. Help him or her tell the story. Ask open-ended questions. Try to empathize with what they are telling you. See the person in front of you. Even if you don't agree with the complainant's allegations, you should have a respectful relationship with the complainant during and at the conclusion of the investigation. 
  • Set a relaxed atmosphere for your conversation with the respondent. All the suggestions in the previous point apply. You have to offer the respondent due process, or you and the process you are upholding won't be viewed as credible.  
  • Discuss the situation with colleagues as appropriate. Ask your colleagues to find the holes in your reasoning or the employees' testimonies. Subject your reasoning, facts and witness credibility analysis to scrutiny. Make sure your conclusions make sense. 
  • Encourage company executives to have a conversation about ethics, compliance and how they will go about investigating allegations against one of their own. From the CEO down, everyone needs to understand and support the notion that the process has to be unbiased. 

I share with Bair, Goldsmith and West the view that #MeToo can be resolved. It requires an employer's commitment to a harassment-free workplace and to conducting truly fair and impartial investigations, which means shielding them from confirmation bias.

Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to jathan@jathanjanove.com.

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