How & Why You Should Never Skip Employee Disability Accommodations in Workplace Investigations
Good workplace investigators constantly strive to make their investigations processes fair, equitable, and ethical for the employees involved in the cases. But with a more diverse workforce than ever before, it can be hard to remember every DEI consideration and employee accommodation, especially if the person doesn’t disclose a condition.
In this article, you’ll learn about the wide array of disability accommodations in investigations that you might need to account for, how to do so, and why they can actually benefit your organization.
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Disability Accommodations During Investigations: The Basics
In a recent webinar, we asked investigators if they believed they’ve accommodated an employee with a disability during a workplace investigation. Fewer than 30 percent thought they had, but after an exploration of some lesser-known disabilities and accommodations, that changed to a whopping 85 percent.
While you may not have had to hire an ASL interpreter for a deaf employee’s investigation interview or chosen an accessible interview room for an employee in a wheelchair. But, if you’ve ever taken an employee’s needs or preferences (physical, mental, or emotional) into account when interacting with them during an investigation, you’ve accommodated them.
According to the U.S. Centers for Disease Control and Prevention (2020), 27 percent of adults have some sort of disability. This includes conditions involving mobility, cognitive function, hearing and vision. Check out this list of categories:
- ADD / ADHD
- Blindness / Low Vision
- Brain Injuries
- Deaf / Hard of Hearing
- Speech and Language
Not every employee with a disability will disclose it, and that’s their right. However, whether or not they choose to disclose, you should be ready to accommodate their needs during every stage of the investigation process. Having a plan in place for all sorts of accommodations ensures you can treat employees well while still sticking to an efficient investigative timeline.
Disabilities come in many forms and impact employees in a myriad of ways. That’s why you’ll need to plan unique accommodations for each person. Ken McCarthy, President of anti-harassment consulting firm Integrity by McCarthy, Inc., explains that there three main types of accommodations: timing, assistive communication, and physical and emotional accommodation.
Timing accommodations could include scheduling a longer or shorter interview than usual, offering plenty of breaks throughout, or even considering the time of day when you primarily communicate with the employee. McCarthy suggests “scheduling interviews during a time of the day when the candidate experiences the fewest disability related barriers. For example, some people with disabilities depend on personal care workers and Paratransit, which may restrict their availability. Medications and energy levels can also impact the time that a candidate may request for an interview or test.”
Assistive communication includes any tool, technology, or service that helps an employee provide and receive information during the investigative process. This could include:
- Printed documents or visual aids (rather than on a screen)
- High contrast printed materials
- A screen reader or Brailler
- An interpreter or note taker
- A lapel microphone (so the employee can hear you better)
Finally, employees might need you to accommodate physical or emotional needs. For example, they might not be able to process your questions or information quickly, especially if they feel stressed. In that case, provide an audio or video recording of your questions ahead of time or scratch paper so they can take notes. They might also need:
- A tidy, quiet, distraction-free environment
- You to speak clearly, without blocking your face or mouth when you speak
- Concise explanations and questions
Food and beverages might also need to be provided for an employee’s well-being. They might require a snack or drink because of a medication they take, to regulate their blood sugar, or as part of an eating disorder recovery. Plus, holding a warm cup of tea might just put the employee at ease so they can provide you with the information you need.
Lastly, don’t forget about physical accommodations, such as accessible spaces for employees with mobility issues or dim lighting for those with visual disabilities.
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When an employee with a disability is involved in one of your workplace investigations, accommodations aren’t the only thing to consider. You also have to take disabilities and differences into account when interviewing and communicating with them, and when determining credibility.
One example of this is trying to detect deception in an investigation interview. According to expert Michael Johnson, Chief Strategy Officer of Traliant, common signs of lying or hiding information include:
- Extreme show (or lack) of emotion
- Cognitive effort
- Attempted impression management (i.e., employee thinks liars look away, so they make strong eye contact)
- Length of time speaking (i.e. short, curt answers)
- Level of detail
- Use of passive voice
- Use of pronouns
- Equivocations (doesn’t really answer the question you asked)
- Physical tremors or tics
However, many of these behaviors are also associated with neurodivergence, sensory processing disorders, emotional and mood disorders, essential tremors, and just plain old nerves from being in “the hot seat.”
In a recent Case IQ webinar, McCarthy shared stuttering as an example scenario. Stuttering is often seen as a sign of nervousness or confusion, which could lead an investigator to believe the employee is lying or not telling the whole truth. But in a case he worked, a complainant told him ahead of time, “As I’m talking to you, I’m trying to hide my stutter and I’m being very careful and very measured in the way I answer my questions.”
This person knew that their stilted speaking style might be perceived as thinking up lies, so they disclosed their disability, but remember, not every employee will. Ultimately, if an employee exhibits classic cues of deception, they could be lying, they could have a disability, or neither could be true. Take this as an opportunity to look at behavior in a new light as you determine credibility.
Why should you accommodate employees with disabilities during your workplace investigations? First, it’s the law. The Americans with Disabilities Act (ADA), and the Rehabilitation Act protect U.S. employees from workplace discrimination on a federal level.
These laws require that “employers cannot discriminate against employees with disabilities; and employers need to reasonably accommodate employees’ disabilities in the workplace without undue hardship to the employer,” McCarthy explains “Undue hardship” generally relates to the cost of the accommodation, sources of funding, and health and safety considerations.”
But compliance isn’t the only reason to accommodate employees. Doing so can also improve the quality of your investigations by:
- Building rapport
- Supporting procedural fairness
- Responding to the need for trauma-informed approaches
- Getting the most out of your interviewee
- Improving your “lie detector” abilities
- Allowing interviewees to participate fully in the process
- Allowing investigator to grow in the profession
- Allowing investigators to spot systemic discrimination that is rarely “seen” and “held”
“If you can get past some societal biases about people with disabilities or open your mind . . . this will help them lower their guard and allow you to either remove or help them navigate barriers,” says McCarthy. “In short, you will build trust and rapport, ensure procedural fairness, and avoid re-traumatizing that person. You will have a far better chance of producing a solid investigation result.”
Now that you know the types of disabilities you could encounter and why accommodating employees is both ethical and beneficial to your investigations, you need to know how to go about it.
The first step is to simply ask every employee up front if they have any conditions or disabilities and, if so, how you can accommodate them. The employee knows their needs best, so kindly and openly ask how you can help as soon as possible; this shows you care about them and want their help to achieve a successful investigation. “If an employee presents a complex accommodation matter on the spot, it can derail your progress on the investigation and if you are not responsive to the request, you may find yourself looking foolish before a court or a tribunal at some point in the future,” McCarthy warns.
Next, “read about it, learn about it, and learn from it,” McCarthy says. Don’t operate based on assumptions. Do plenty of research into different types of disabilities and come up with accommodation ideas in advance. The more often you take disability accommodations into account, the more it will feel like a regular stage of your investigative process.
Finally, add accommodation to your investigation policies and procedures. “Add a simple statement that the investigator will consider the employee’s accommodation needs in their investigation planning, in keeping with the employer’s internal policies, and if the employee has disclosed the need,” McCarthy suggests. “This could be supported by a list of best practices that [your organization has] employed.” Not sure about the content? McCarthy suggests paying employees with disabilities as consultants as you rewrite your policies. As experts on their own needs, they can offer valuable insights that others in the organization might not think of.
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