Chat with us, powered by LiveChat

Hiring an Independent Firm to Guard Against Bias Allegations

By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG

The CEO of a community college in Connecticut (“Plaintiff”) sued the Connecticut State Colleges and Universities System (“System”) over claims of gender discrimination and won.[1] Plaintiff also alleged violations of her First Amendment and Equal Protection rights. The allegations included sexist statements by supervisors about Plaintiff and female job applicants. When Plaintiff confronted her supervisor with her concerns, he threatened her job security. System officials then took no action, telling Plaintiff to “work things out” with her supervisor.[2] Less than a year into her role, the System discontinued her appointment as CEO. Plaintiff claimed that she received no justification or rationale for the termination. Her lawsuit alleged that the System also did not grant her due process. Given the uphill battle most plaintiffs face in proving discrimination, it’s a rare win to see a suit where an employee gets their job back, plus back pay and compensatory damages.

One additional detail to consider is the independent investigation of Plaintiff’s supervisor. The System hired an outside law firm to conduct an independent investigation. However, the outside law firm was the same firm that represented the System in labor and employment issues. Plaintiff alleged the investigation excluded relevant information that her legal counsel provided, implying bias or conflict of interest concerns. If the System had hired a truly independent third party to conduct the investigation, then Plaintiff’s claims of bias in the process would have been far less compelling. Instead, here, the suggestion that the System’s previous relationship with the investigating law firm led to some sort of cover-up was likely damaging to the System’s case.

This is not an uncommon occurrence. Post-secondary institutions, K-12 districts, and many other organizations outside the education industry frequently use their outside counsel to conduct these kinds of internal investigations. However, that arrangement may lead to conflicts of interest and it is likely inappropriate when the investigation involves the organization, a senior-level employee, or the organization’s practices or policies. At the very least, it opens the door to perceptions of bias. Honest mistakes or skipped steps suddenly become evidence of bias or unfair dealings rather than simple errors, throwing the legitimacy of the entire investigation into question. Simply put, is the firm that is engaged to defend the organization going to provide an objective perspective on the organization’s behavior if its conclusions put a lucrative relationship at risk? Maybe, but maybe not. But there is no reason to leave the door open to accusations of bias when there are alternatives.

The best route is hiring a truly independent third party to conduct discrimination and harassment investigations, where there is no incentive to skew the results and there is no credible suggestion of bias.[3] You can have full faith in the objectivity of the investigation, leading to a more accurate outcome and minimizing the liability the organization may face. You should consider your organization’s current practices and determine whether they need updating to remove opportunities for bias or conflict of interest to infect the process. Tightening up the details now may lead to fewer headaches later.

Recently, TNG Consulting, ATIXA’s management company, had a chance to consult with a college client who was managing a tricky Title IX complaint. In the course of that conversation, we asked the client what we might do, as an external provider, to win their investigation business. The client shared their opinion that most investigations are of relatively the same quality, so the issue came down to price for them. As a result, they chose one of our competitors. We offered a redacted sample of a recently completed investigation report we had provided for another college client and asked the prospect to compare it to the work product they received from their current provider. They did so and reported back the difference was night and day. They’d never seen a report like ours and could clearly see the advantages of the approach we had taken, our thoroughness, and the clarity of our writing. We won their business because paying a little more for quality is worth it.

Put us to the test. If you’d like a copy of a redacted sample report from TNG, please email to request one. We ask you to compare it against the work product your investigators are producing internally or compare it to your current provider’s work product. If ours is better, please let us quote the work for you. We are confident we’ll compare favorably on both quality and pricing. For more information about TNG’s investigative services, click here .

To read more ATIXA Tip of the Week blogs, click here.

[1] For the Inside HigherEd article, click here.

[2] Id. at par. 10.

[3] A truly independent investigator would have no ties to the school, district, or institution under investigation. In other words, the investigator should not be alumni, a donor, athletic boosters, parents of students, or anyone with ties to funding sources.