Due Process and Context
I was watching TV the other night – Blue Bloods – and one of
the segments was a clear example of how context matters. A young woman, apparently on drugs, ran over
and killed another youth. The
prosecution, thinking she had been joy-riding, was about to ask for the stiffest
penalty possible. BUT, the young woman’s
mother explained that her daughter had not been joy-riding, but that the drugs
represented her attempt at self-medicating because she had anxiety, depression
and other psychological problems. (This was verified by a reputable
psychiatrist.)
Intent is a significant part of how sentencing is
determined. Since the daughter was not
joy-riding as originally thought – the prosecution asked for a lenient sentence
and counseling/therapy for the girl.
Context always matters.
Recently a woman was forced out of her association because
she was two months late in paying her dues.
The board assumed that she deliberately chose not to pay them. No one asked her. The truth is that she had been ill and not
earning any money for a while. It was
the very first time she’d ever been late.
The person responsible for working out a payment plan with the woman
never even attempted it – no one bothered to talk WITH her they just let her
go.
Not only does context matter – so too does due process.
Due process means the person being accused has the right to
face their accuser, to know the details of what they allegedly did wrong, and
to be able to defend themselves before a final decision – or sentence is
delivered.
Let me give you another example. I was involved in a case where an executive
lost his job because “he should have known” that his staff told dirty
jokes. The investigator in this case was
so biased that she pre-determined his guilt.
Later, when I interviewed the executive I learned that he traveled
frequently and was thus out of the office.
The alleged dirty jokes apparently occurred when he was not around. (This was before the latest idea to make “command”
responsible for the behavior of their charges.)
Here's another one:
Someone reported over-hearing a sexually inappropriate comment. The man who was accused to have made the
comment was on the verge of being fired.
There had been no attempt to ask him – or the person to whom he made the
comment – about the situation.
Fortunately, his manager intervened and called me in to do a thorough
and fair investigation. Interviewing the
man and the woman to whom he made the comment, I learned that they were friends
and that what he was really asking was “did you make up with your boyfriend?” He asked because the prior week over lunch
she had been crying on his shoulder about a fight she’d had with the
boyfriend.,
While I am on this subject – let’s also look at the
foolishness of demanding a policy of “zero tolerance.”
- ·
A kindergarten boy kisses a little girl on the
cheek. He is expelled
- ·
A young boy accidently picks up his mother’s
lunch bag instead of his own. She
notices it and calls the school to report the mistake. None the less, because her lunch bag – in his
possession – contained an apple and a small paring knife he was suspended for
carrying a weapon.
- ·
Two women, thinking they are alone in the
restroom at their office talk about their dates the night before – in pretty
graphic terms. Some other woman, who had
been in the stalls reported it as creating a hostile work environment. The women are fired.
- ·
A man making a delivery package in an apartment
building knocks on an apartment door just as the next door opens and out comes
his wife – with her extra clothes and the partially unclothed man that she had
been with. Reacting in the moment the
first man socks the second man. He has
no other history of violence – but his children are (almost) taken away from
him in a custody battle.
All too often decisions are made with limited – and sometimes
biased – information. People are harmed
whereas they could have been given an opportunity to work something out.
I am a firm believer in using mediation where ever possible –
especially in these workplace he said/ she said accusations of stupid and jerky
behaviors that don’t reach the level of a crime.
I have been mediating disputes among people since the eighties
– starting with doing visitation and custody mediation and now mediating
problems in the workplace. I also teach
other professionals how to do mediation.
Oh, and how to do fair and impartial investigations. Two of the six books I have written and
published are due to these activities.
See below.
- Conducting Workplace Investigations: Designated Investigator
- Culture: Inside the Company and Outside
the Country
- Leading
and Managing a Global Workforce
- Conflict in the Workplace: Causes and
Cures .
- The "Please" and "Thank You" of Fundraising for
Non-profits.
- Training Your Board of
Directors
In summary, due process
requires looking at all sides of the story – from context to the investigation
to the decisions regarding the appropriate sanctions and outcome. Who gets selected to do the interviewing and
investigation is equally as important because all too often people start out
with either conscious or unconscious biases.
Labels: due process, investigation, mediation, zero tolerance
