15 Sep Season 2. Episode 5: Mihad Fahmy and Faisal Bhabha: Investigating Allegations of Misconduct
Lawyers Mihad Fahmy and Faisal Bhabha explain how investigations into complaints of workplace misconduct are undertaken. They explore the problem with buried reports, the liability of board members, and the opportunity for Muslim organizations to create a culture of respect and transparency beyond their legal obligations.
Faisal Bhabha is an Associate Professor at Osgoode Hall Law School in Toronto, Canada. He also serves as the Faculty Director of the Canadian Common Law LLM degree program. He has researched and published in the areas of constitutional law, multiculturalism, law and religion, disability rights, national security and access to justice. He teaches constitutional law, human rights, legal ethics, and appellate advocacy. Previously, he sat as Vice-chair of the Human Rights Tribunal of Ontario (2008-2011). He maintains a varied public and private law practice, appearing before administrative boards and tribunals and at all levels of court, including the Supreme Court of Canada. He advises and represents a variety of individuals and public interest organizations in matters pertaining to constitutional law and human rights. He has appeared as an expert witness before Canadian parliamentary committees and served as a member of the Equity Advisory Group of the Law Society of Ontario. He has lived and worked in the Middle East and South Africa, and has lectured and taught in many countries. He is currently a senior editor with the International Review of Human Rights Law.
The following transcript has been edited for fluency.
[00:00:00] Dr. Ingrid Mattson: Hello. Assalamu alaykum, welcome to the second half of season two of the Hurma Project Podcast, where we seek to close the gap between our Islamic values and our Muslim community realities. Hurma is an Islamic legal term, signifying the divinely granted and inviobility of the human person from abuse, assault and exploitation.
[00:00:35] In this podcast, we speak with experts from a variety of fields about how to prevent and respond to violations against all those who are present in Muslim spaces. I am Dr. Ingrid Mattson, founder of the Hurma Project, which I direct with my friend and partner Mihad Fahmy, a human rights lawyer and workplace investigator and a lecturer at Huron University College, where I am also chair of Islamic Studies.
[00:01:05] In this episode, we are doing things a little differently. My usual co-host Mihad switches roles and is one of the two experts I speak with today. This is because we are discussing her area of professional expertise. And that is how to conduct a professional, independent workplace investigation. Our other expert is Faisal Bhaba. Faisal is an associate professor at Osgood Hall Law School in Toronto, and he is the faculty director of the Canadian Common Law LLM program. He also maintains a varied public and private law practice, appearing before administrative boards and tribunals, and at all levels of court. Faisal has lived and worked in Canada, the Middle East and South Africa, and has lectured and taught in many countries. You can learn more about Fasail Bhaba by looking at the Hurma Project website, where you’ll find information about all those who are involved in the Hurma Project, our guests and also transcripts of our conversation today.
[00:02:23] Mihad, to begin our conversation today about investigations within an organization. Can you present a realistic scenario an example or two of when an investigation might be conducted in a faith-based space? So whose conduct is under investigation? What have they done and who is filing the complaint? Okay.
[00:02:46] Mihad Fahmy: I think a number of examples would apply. One of them would be the one that we probably turn to most often. And that is an imam in a community whose conduct is called into question. It could be called into question by a congregant. It could be called into question by a board member or another employee that the imam works with. Now, in most situations, the imam is considered to be, or is an employee of the mosque board. And so if a complaint comes forward to the board that the imam has engaged in some type of misconduct. It could be sexual in nature, it could be not sexual in nature. Then the board has an obligation to investigate those allegations, as the imam is an employee of the board. And if you wanna get a little bit more particular, it could be that a congregant has come forward and said that the imam has made sexual advances towards her. It could be that the imam has engaged in bullying behavior towards a congregant or towards any of his coworkers, but it could also be relevant- let’s say if the mosque also operates a school, a full-time school. So the principal of the school could also be alleged to have engaged in misconduct towards his staff or her staff towards a parent, towards students and in those situations, again, there would be an obligation to investigate those allegations of misconduct.
[00:04:25] Dr. Ingrid Mattson: Okay. So you’re talking about people such as an imam or a principal who are employees, they’re paid employees, but what if they’re not being paid? What if they’re volunteers who are in the position, volunteering in a classroom, for example, or a volunteer khatib the message or a young man or young woman who are running a youth group as a volunteer position, what about. them.
[00:04:53] Mihad Fahmy: Well, in all of those situations, those volunteers hold some level of responsibility and authority in the community. And so similarly there would be the obligation to look into those allegations of misconduct, whatever they are, because that person let’s say a youth leader or somebody who heads up a committee is carrying out those responsibilities on behalf of the community or on behalf of the board. And so those volunteers are held to the same standard of conduct and would need to answer to complaints that come forward.
[00:05:28] Dr. Ingrid Mattson: Okay. So Faisal, Mihad talked about someone coming forward and making a complaint to the board, but does a formal complaint need to be filed in order for an organization to have a legal duty to investigate?
[00:05:47] Faisal Bhabha: No. The organization has a duty to investigate when it has knowledge of the possibility of something to investigate. It’s worth going back to look at the underlying framework that produces this duty to investigate because it is something relatively novel at law. And it’s rooted in the fact that you have human rights law enforced in the jurisdiction that prohibits discrimination, as well as sexual harassment and sexual solicitation, and specifically sexual harassment and solicitation by a person in authority or in a position to convert benefit like a manager or a supervisor specifically prohibited. And organizations have an obligation not to encourage, facilitate or condone conduct, even if they don’t directly commit it. But if they learn that such conduct is occurring or might be occurring within the workplace, or arguably even outside the workplace or the place over which it has direct control. And this is because the doctrine of the poisoned work environment puts the employer in a position of responsibility to do more than nothing when it knows that there may be something going on.
[00:07:05] Dr. Ingrid Mattson: Mihad, can you give us an overview of the process of an investigation and you know, what are the stages of the investigation, and also where does the investigation fall within the complaints process?
[00:07:19] Mihad Fahmy: Okey, well, normally the investigation would start with the filing of a complaint, but as Faisal said, there doesn’t need to be a formal complaint in order to trigger the employer’s duty to investigate the concerns. So if the organization becomes aware that there are concerns or actual incidents of harassment or discrimination, then automatically they have to initiate some type of investigation. But let’s assume that there is the filing of a complaint. So somebody comes forward, files a complaint, the institution, or the employer then needs to decide how they’re going to deal with it. I know we will get to the issue of how an investigator is appointed, but let’s assume that an external investigator is appointed. That investigator will then meet with the person who has filed the complaint, we’ll to her as the complainant, and understand more specifically what the nature of her complaint is. The reason why this step is really important is because oftentimes the written complaint is very general in nature. So very little specifics are provided. So the investigator would meet with the complainant, flesh out what exactly has happened to lead her to filing the complain, and that is the who, what, when, where of the situation. Something that we usually refer to as the particulars of the complaint, then the investigator will usually meet with the respondent, so the person who is alleged to have engaged in misconduct. Before meeting with the respondent, he or she is usually provided with a written statement of the allegations so that there is an opportunity to respond to those allegations. And then of course there are gonna be other witnesses that the investigator will have to meet with. It’s important to remember that this is all happening one on one.
[00:09:16] A lot of people envision an investigation similar to a court process or a hearing. But in fact, it is, you know, meetings between the investigator and these various parties along with a support person. If you know that person wants somebody there or in a unionized environment, it would be with a union representative. And there may be, there often is some documentary evidence that the investigator will have to go through emails, texts, what have you. And in the end, the investigator will have to review all of the evidence and then decide the question in front of her. So it could be: did discrimination take place, did harassment take place, did the person violate the code of conduct, whatever the question is then needs to be answered based on what they have heard. Credibility assessments need to be made based on a number of factors, but again, it’s important to remember there’s no cross examination, you know, there’s no formal legal submissions that are made in front of the investigator. It’s a different process than what people see on TV, around a court process, and it’s also not a mediation. So the investigator is not there to resolve the matter between the parties, not to fix things. The investigator is there to make findings of what happened and whether or not there have been any violations of the policies or procedures.
[00:10:45] Dr. Ingrid Mattson: Okay. So a number of questions follow up from that. You’ve described this process and what the investigation is and what it isn’t, but who decides the nature of that process. So is this something that’s standardized among investigators or does the process of investigation itself in any way depend on the institution’s own regulations or protocols?
[00:11:13] Mihad Fahmy: Right. Yeah. So what I’ve described is kind of the standard process, really the bare bones of an investigation process based on procedural fairness, but you’re absolutely right. An organization’s written complaints process may include other steps, like the exchange of written positions, so that the respondent gets to see the written complaint and the complainant gets to see the written submissions or the written position by the respondent. It could also include a final step where both parties view the draft findings of the investigator and get to give one more set of submissions to the investigator. All of these things might be built into the written complaints process of the organization. But I would say that there are fundamentals of a investigation, even in the absence of the written complaints process.
[00:12:10] Dr. Ingrid Mattson: Faisal from your perspective, is this process of investigating according to principles of fairness, does it leave room for people to really question those principles of fairness to say that those principles are not universal or this process itself of investigation. How much controversy might there be in terms of that simple fact finding process?
[00:12:40] Faisal Bhabha: Yeah, you have to look at what kind of what the history of it is. And it originates in employers doing what they need to do for their own interests. It’s important to distinguish that this is not like you have some sort of independent tribunal coming into the workplace and offering some sort of external justice, capital J, for the workplace. No, this is an employer doing what is legally responsible previously was a best practice before it was a legal obligation, it was simply good to do. But ultimately employers were doing it with their own interests in mind. What we’ve seen in recent years has been an evolution away from a sort of- employers used to retain investigators under strict solicitor client privilege, for example. And to the point that an investigator in my early investigations, I had no say over what would happen to my report. It could be buried. Employers could do whatever they wanted with it, including not sharing it with the complainant. And it’s important also to highlight that an investigation report at the end of the day is simply a piece of evidence. An opinion of an expert. And so if the matter ends up in court and these matters do often end up in court, the investigator becomes a witness. And that person’s opinion about what happened is not given any greater weight by the court or the tribunal than what an expert would be given. So I think, you know, we have to put the fairness into perspective. There is an effort by the industry, the investigation industry, to bring clients along towards best practices that resemble the robust procedural fairness that the traditional justice system gives. And this is because there is a kind of competition at play. There’s an economy here and it’s a competition for turf.
[00:14:32] Increasingly we are seeing these non-legal forums being used to resolve disputes that previously we’re within the preserve of the formal justice system. There are those who are big critics of this, the idea that taking any kind of extra legal approach is inappropriate. Of course we saw this with me too, to the extent that they lead to these confidential settlements and the burying of facts. That’s not what should be happening, but that’s what investigations were often done for in the past. Increasingly, we’re seeing the opposite. We’re seeing the value of transparency introduced. And so as Mihad suggested, you’re seeing new kind of innovative mechanisms, like giving the parties a chance to make additional submissions, seeing a draft of a report. That’s an innovation that was not happening when I started doing investigations. Other things like sharing copies of the report more broadly with participants. All of that is really within the ultimate discretion of the employer. That is the party who decides whether to have an investigation, who to retain, to conduct the investigation, how much to pay that person to conduct the investigation, if and when to pay that person, right? It’s all remains under the control of the employer. But these principles and best practices have come to shape the way that institutions conduct themselves. I wouldn’t say that’s across the board, but the work that I do for larger institutions that I would say I’m definitely seeing evidence of greater attention to broader principles of fairness.
[00:16:09] Dr. Ingrid Mattson: So it seems to me there’s an opportunity here then for Muslim communities who care about justice, who care about doing the right thing, who care about the safety of their communities and about fairness to not just sort of passively receive established procedures, but be part of it. To really take the time when they think about their own complaints process and how they’re going to engage with investigators and use investigators. That we really can, and maybe do have a responsibility to think about it on these deeper levels and think. What kind of investigation do we want? Do we have a responsibility, for example, not only not to bury the report, but maybe share it at least with our congregation, for example, or our community. Is there something in this that we might even have a broader responsibility to share, not details, but maybe if someone contacts us about a former employee who is found engaging with misconduct in misconduct? Maybe we have a responsibility to be clear that they left for that reason. What do you think? I mean, the changing nature of these extra legal processes, does that give the Muslim community an opportunity?
[00:17:34] Faisal Bhabha: Yeah, I think there’s a great opportunity, to not only explore this mechanism and adopt it, but also to develop it and offer it back to the broader society. I think that Muslims have values and norms that are universal and also have values and norms that are particular to us. And I think if we develop institutional practices internally within our organizations and experiment with those, we could end up with outcomes that are not only beneficial to our communities, but that we can use to teach other communities, for example, on the integration of justice and compassion. Which is something that is really prominent in the Muslim ethical world view. But which I think is kind of out of whack in our secular justice system. And so I think there are many possibilities. I mean one of my areas of academic research is normative pluralism and the ways in which pluralistic communities can benefit from substantive pluralism. And that means sharing in both directions, that isn’t just Muslims becoming more sort of Canadian and learning how to do investigations, the way that Canadians do it. That kind of approach is not what I think is the most constructive approach. I think there, there could be a true opportunity for cultural integration and exchange.
[00:19:00] Dr. Ingrid Mattson: Faisal I understand that an alternative to an investigation or perhaps a compliment to it is something called a climate review. Can you explain what that is and how a climate review might benefit a community?
[00:19:16] Faisal Bhabha: Yeah. So in the context where there are not specific allegations or where there isn’t a complainant willing to come forward. And so yeah, on the subject, let’s think in terms of sexual harassment. You know, there may be a predator who has committed a variety of offenses, but maybe we’re not any one individual offense has been so egregious as to trigger a person willing to do what it takes to seek justice, because we all know the burden that comes with doing that. And this is, I think is not an uncommon thing, right. So when you’re talking about quote unquote, minor offenses. So when you don’t have a complainant, sometimes the employer itself can initiate a complaint. Sometimes they may not wanna do that for a variety of reasons, whatever. And so there is this alternative that is sometimes used, which allows for the appointment of somebody, not as an investigator, but as a reviewer. And the person’s mandate would be restricted to getting an assessment of the climate in the workplace. And this is done by speaking to a number of individuals who participate as participant witnesses, not as complainants or respondents. And so the big benefit of this is that you’re able to offer those participants the opportunity to speak openly with pretty much confidentiality. Their identities are pretty much irrelevant. So their names would not be in the report. They might be redacted or they would be anonymized, varying levels of that. So there may be personalizing information, maybe removed specific statements might be generalized or like aggregated. So five different people’s testimony might be summarized in a general statement. So you can do all sorts of things to draw people in, protect them and tell the. The downside, if you wanna call it, that is that it’s not justice oriented, in the sense that it doesn’t lead to conclusions about, you know, somebody did something wrong. There is no conclusion that somebody was wronged or that somebody did wrong. But you can get conclusions like this is a miserable workplace because the bosses are all sexist pigs and they routinely denigrate female staff or, you know, those are, you can get really compelling, powerful, important, factual conclusions that aren’t necessarily gonna send anybody to jail or get them to lose their job but it can lead to something or it cannot. So climate reviews aren’t are also notorious for kind of leading to no change at all. So buyer beware. But I think it’s worth exploring that as a possible alternative, especially in a context where the stakes are very high for individual complainants coming forward.
[00:22:01] Mihad Fahmy: I think that also the advantage of engaging in a climate review or a culture review is that you are capturing perception. So the reviewer, as you said, they’re not making any findings of fact and you are trying to get a snapshot of the workplace. And then from that, you can try to put forward if you’ve been asked to as the reviewer recommendations for next steps to address those issues. And it is a way to tap into how employees are feeling in a more safe, a safer process, because as Faisal said, there’s no need usually for those participants to identify themselves. You’re trying to get a sense of people’s experience in the workplace.
[00:22:45] Faisal Bhabha: I’ve worked on files that began as an investigation and converted into a climate review, and so there is some fluidity between these two processes as well.
[00:22:57] Dr. Ingrid Mattson: It would seem to be helpful also in the case where the person who has been accused of misconduct has simply disappeared. And so you can no longer engage with that person. And so what’s done, unfortunately, what we see in a lot of cases in our community is that the leadership after they’ve. You know, uncovered a problem or problem’s been brought to them. It’s apparent that it is serious and demands some investigation. Then the person leaves. Sometimes leaves the country or they might offer to resign. The resignation is accepted. And the leadership of the community believes the problems been solved with no, you know, the doors closed and the community- and those who have made a complaint, they’re not offered anything. And the question is has the system or the structure that allowed that to happen, has that been changed at all? So it would seem to me to be particularly helpful in that that situation as well.
[00:24:07] Faisal Bhabha: It was surprising to me when the revelations that started to come out in the sort of Muslim me too movement of all these people across the continent, the world, Muslim leaders being exposed. The level of shock that was displayed within the community, it showed how naive we were. And I think it’s not because those things hadn’t been happening. It’s not because those things hadn’t been dealt with even. But I think it’s because of this culture of concealment that you’ve just addressed that I think left average members of the community totally ignorant and naive.
[00:24:48] Mihad Fahmy: And do you see a role for imams, local imams and leaders- let’s assume that we are using roughly a system that we’ve been talking about, the process of workplace investigations. Can you see a way of incorporating a role of imams or chaplains?
[00:25:05] Faisal Bhabha: Yes. Yes, but I think the imams who understand their role in this context, and then there are many who do, should be training the others to- because I think the best imams are those who understand their role and perform their duties within their lane. And I don’t think that we as a community have come together to say, we’re going to take investigations seriously. And we’re going to ask our imams who already are jacks of way too many trades to also take this on. And arguably they’re in a terrible conflict of interest. I mean, it’s like asking the police to investigate the police. If the issue is imam abuse of authority, then we need to look beyond the cohort of imams. And that’s not to say anything negative about imams, but it’s about appearing to be impartial in the process. And so the chaplaincy may be a place to look because Islamic chaplains are, my understanding, is that they are very different from amounts, but perform a similar sort of curatorial function for the communities that they serve. There may be a role for pioneering new roles altogether. There’s no reason to limit ourselves to existing roles. Most of what we have as a community is a kind of Jerry rig solution based on necessity. And it’s inherited from the first generation of Muslims that really goes back to like two generations, when a lot of these norms- things were set, I think that things can be developed from scratch and we don’t need to be locked into the way things have been done within the communities. Having said that, change is not going to come easily. And so working within established frameworks will, I think, improve the likelihood of it taking hold on a tighter timeline and ensuring greater effectiveness inshaAllah..
[00:26:55] Dr. Ingrid Mattson: Right. And I think you’ve hit on something that’s key in realistically assessing that the religious leaders still should have a role, not only as people who are, you know, moral exemplars, ideally, or the ones who are teaching about morality and character and Islamic values, but there’s also a question of trust. And I think this is where we have the biggest problem in many of these cases, is that none of this will matter. No processes or systems will matter if the people involved aren’t trusted, if they aren’t considered trustworthy. And we live in an era of suspicion. The fact is that especially post nine 11, we are a community under surveillance and infiltrated and you know, all sorts of traumas have occurred within our community. So that we don’t even know half the time who we can trust anymore. So we need trusted people to get on board. And maybe as you say, bringing more of these skills to the people who already have some trusted roles is important because just as we’re providing training and things like mental health response, at least a basic orientation in how a complaints process and an investigation would work. It’s something that we hope to do. But new things are also w would also be great. We often hear from community leaders from imams and scholars and others that we need something, we need some organization that takes on this role. That’s often our solution, but of course, any new organization needs funding, it needs oversight. But certainly disseminating this knowledge more broadly is something that can only help inshaAllah, I hope.
[00:28:54] Mihad Fahmy: And I think that issue of trust is so important. If you look at what happens in workplaces, often the reason why an external is hired, I mean for many reasons, but one of them often that I hear is that human resources could take care of the issue, but there’s an awareness that the complainant, or maybe the respondent, or everybody who’s gonna be interviewed will just not trust the process if it’s done internally. And so part of building that trust in the process is having somebody who can say that there is no conflict of interest. And so I think similarly in our communities, I hear what you’re saying Faisal about you know bringing in Maram or potentially chaplains. But I think that we run the risk of losing the trust and the buy-in when those who are alleged to have engaged in the misconduct is a person with a religious authority. And so I think the optics there are problematic.
[00:29:55] Faisal Bhabha: Not if not, if you have findings. If you have a prominent imam who reaches conclusions another imam or situation.
[00:30:04] Mihad Fahmy: Right.
[00:30:05] Faisal Bhabha: And then has a mandate to talk about it. That could be very powerful.
[00:30:08] Mihad Fahmy: But you got to get there first.
[00:30:10] Faisal Bhabha: Yeah.
[00:30:10] Mihad Fahmy: You gotta get to the findings and so that, right- that process, you risk losing the process. If there’s no buy-in and the complainant throws up your hands and says, I’m out. Why would she participate if it’s being run by an imam.
[00:30:24] Faisal Bhabha: At the same time, you couldn’t have the Canadian council of Imams standing there saying this process is illegitimate. We don’t trust this process. I think that would be something very negative. And what you really want is the Canadian council of Imams saying, we welcome this process, we support it and we wanna give it our endorsement.
[00:30:42] Mihad Fahmy: Right. So we’re talking about trust from both sides, right? We’re talking about gaining the trust of the community of imams, as well as the trust of the person who’s come forward as an as a complainant.
[00:30:53] Faisal Bhabha: Yes. You need it.
[00:30:54] Mihad Fahmy: You need it. Yeah.
[00:30:55] Dr. Ingrid Mattson: What’s interesting. However, is that in many cases we find that the people who are most resistant to a fair transparent process or any process of an investigation are not the imams. We find many imams reporting other imams. It’s the boards, who are the ones who have the authority, who are directors of the organization who have the legal responsibility of caring for this organization and making sure that it’s protected from liability and that it fulfills its mission. In many cases it’s the board members who seem to be most resistant. They’re afraid of losing someone who might have brought a lot of people to the organization, you know, some charismatic speaker or they themselves are students of the scholar or imam, or they have some other ties. So I think that when it comes to education, and we talk about this in a, in another episode with one of your colleagues, is the responsibility of board members who are our community. I mean, they come from our community. It seems to be especially urgent that they understand some of these principles and processes. I wanna ask you Faisal, you’re a member of the Muslim community. You’re a lawyer law professor. You’re someone who has conducted investigations. I’m sure you’ve also served on boards of Muslim organizations at different levels. So what’s your advice to our community in general? What do we need to prioritize when we look at this issue of violations of trust, whether this is financial violations or harms committed towards people, whether that’s harassment or other forms of abuse, what’s your advice? What do you wanna tell the Muslim community in terms of our roles and in building a community of. faith.
[00:32:52] Faisal Bhabha: Yea, like I said, I think we’ve, we face a crisis of governance of community institutions and we risk the future of our institutions. And I don’t know that members of our communities really understand the extent to which governance of institutions is the importance of that for the sustainability of institutions and for the legacy and the future for the next generations. And I know that’s something that Muslim communities care a lot about. But I just don’t know that investing in training and better understanding how to serve on boards, how to serve in the public interest, and in the community’s interests and how to not get drawn into our old weaknesses, our ethnic thinking, our tribal mindsets are all the cleavages that have plagued the Muslim community sectarianism and so on that play out in mosque politics and have continually held our community back as much as any of the external threats, which of course aggregate and aggregate. But I don’t think that the Muslim community has done enough to advance itself by improving the way we run our institutions. And we have now a excellent professional cohorts within the community of lawyers and accountants and all sorts of folks who all share this view, but I’m not sure that the connections have been put in place to actually bring that expertise to bear on the community institutions.
[00:34:21] And I say this as somebody who’s worked really closely with one of our national community institutions for a long time, which is probably one of our most reputed and successful community organizations, the NCCM, National Council of Canadian Muslims. And just from watching how that organization has evolved and the challenges that it has faced. And that’s, you know, a good news story. Seeing the scandals that have occurred in other organizations and in mosques and the ways that those have been dealt with have been very disappointing.
[00:34:50] Mihad Fahmy: Faisal, one of the hallmarks of a investigation is that it is to be a confidential process. Can you explain what that means, and if there are any exceptions or limitations to the concept that, you know, the conversations and the process is to be a confidential one?
[00:35:08] Faisal Bhabha: Yeah. Confidentiality is a huge issue in the world of investigations for a few reasons, and the reasons are distinct. So during the process of the investigation, confidentiality is extremely important for the integrity of the process. That is to ensure that evidence isn’t being tampered with or compromised actually because the structure of an investigation is a series of one-on-one interviews. And so if those people that are being interviewed are able to talk to one another to coordinate their answers, to tell each other what they. Heard and talked about and so on. It will undermine the process. And so there are strict rules around participants, not talking to each other, not disclosing the questions, not recording the interview. So most procedures policies will have prohibitions on creating an unauthorized record of the interview. And all of this is meant to protect the integrity of the process as well as the interests of the participants during the investigation process. Once you get to the conclusion and the report, then there’s a question about whether the report is and ought to be confidential. And I think that’s a very different question from the question around confidentiality during the process. And I think there’s policy considerations at play there around transparency accountability. And of course, privacy can continue to be maintained, but it can become more and more difficult depending on how much goes into the report. So I’ve been involved in reports where there’s like a robust version and then there’s a miniature version ,and the mini version will contain just very kind of general because if you put the full version in, even if you anonymize the names there’s enough facts that you can figure out who’s who in the zoo as it were. So there’s a constant balance between protecting individual privacy interests, and that is people for whom their information, there is no public interest in their private information being aired versus those for whom there is a public interest in their conduct being aired, say the offender. And so you’re trying to, and, but sometimes you can’t talk about what the person who committed misconduct did without talking about witnesses and those who are around them. And so you end up risking compromising key witnesses. And so for that reason, there is a lot of creativity that can be put into how you construct the report, the public version of the report. And so it’s not unusual. I don’t know Mihad, I assume you’ve probably seen this too different versions of the report for different audiences.
[00:37:48] Mihad Fahmy: Right. And summary reports that will go to the parties as opposed to a more fulsome report that goes to the organization. Let’s just go look at a particular situation, and I wanna ask you what advice you would give a board if we’re talking about a mosque. They’ve conducted an investigation, gone through the whole process that we’ve been talking about. And in the end, there is a finding that one of their employees, so it is an employee, one of their employees has engaged in serious misconduct. And based on that finding, that person is dismissed. Now, the finding impacts the safety of the community. Let’s assume that this person could have been a predator, could have impacted a number of other individuals in the community. What responsibility does the mosque board have to those who never engaged in the process, but are members of the community and you know, would have interacted with this individual.
[00:38:46] Faisal Bhabha: If you’re talking about potentially identifying unidentified victims, then of course, that’s an easy question. If you’re talking about the removal of a threat, then you’re not really talking about an ongoing threat, and so there would have to be a different interest at play to explain that disclosure. And maybe that the mosque wants to say we have removed a threat. We think it’s important to tell our community that when we discover this kind of activity, we take immediate action and there’s accountability. And maybe it doesn’t require a lot of detail. Maybe it’s sufficient to describe the nature of the misconduct and to say the threat has been removed. And we want you to know that. I work in an institution where before the pandemic on a university campus where campus security would send out announcements. It felt like it was almost every day, multiple times a week about what they would call sexual Assalamu on campus, but they would provide, they provide no detail. And you know, this was causing actually people’s anxiety to increase because when you’re reading that kind of general statement without enough detail, it can actually present the wrong picture. And so you do have to be very careful. Sometimes giving people a little bit of information is worse than giving them no information.
[00:40:04] So I think what I’m saying is how the mosque communicates to its congregants, for what purpose and with what kind of goal and tone and all that needs to be carefully thought through. There needs to be a strategy. There needs to be a principled purpose. I think a good purpose is to demonstrate the mosques values to the congregants, to model appropriate behavior and to model consequences for misconduct. So that may not require disclosing the identity of the perpetrator or the victim. It may be obvious. It may not be, but the point is that we care about these things. We’re gonna take action. And for those of you who thought that mosques don’t do anything about this. It’s a new day. And if mosques did that across the board, I think that on its own would have a tremendous impact.
[00:40:55] Dr. Ingrid Mattson: There are many different forms of investigation into misconduct, and none of them is suited to every situation and setting. A workplace investigation has a limited scope. It is initiated under the authority of the directors of a business organization or association. These directors have the legal and moral responsibility to ensure that anyone working under their authority, even unpaid volunteers are properly vetted, trained, and supervised with the goal of preventing misconduct. And they must ensure that those in authority can easily receive and respond to complaints and even suspicions of misconduct. Ignorance of misconduct is not an excuse. If directors have failed to exercise due diligence, to put in place robust systems and processes to create a safe and respectful workplace where accountability for misconduct can be expected. An external professional is often needed to ensure that an investigation into workplace misconduct is undertaken with objectivity and fairness. But it is up to the organization’s directors to act upon the findings of fact and recommendations given by an investigator.
[00:42:25] Too often, directors seeking to preserve the reputation of their organization fail to share any information with community members. Lack of transparency leaves a vacuum in which rumor, speculation and blame circulate. Communities should not wait for disaster to strike, then scramble to protect their image through denial, coverups, or concealment, thereby perpetuating harm with panicked and uninformed responses. Governance policies should be sound. Directors should be trained in their legal and moral duties. And care for reputation should not override the concern for justice. The ultimate mission of any Islamic organization is to bring people closer to God. When an Islamic organization cares more about protecting their leaders or the image of their institution, then they care about the sacred and viability of the servants of God they have missed the point of the work. Those who oppose our values and faith will always look to impune us. By us here, I mean Muslims and Muslim communities. Whereas our community members do not expect perfection, but fairness and honesty, the saying “it is not the crime it’s the coverup” is shown to be true every day in our culture. As sports executives, university directors, and congregational leaders, scandalize their organizations and communities for covering up offense after offense. Instead, let us be proactive, not only by putting in place robust systems of supervision and accountability, but even perhaps by regularly undertaking the kind of culture scan our guest Faisal Baba mentioned. If we can interrupt problematic behavior before it crosses the line into misconduct, not only can we keep the community safe, but we can possibly save a brother or sister in a position of authority from disgrace. The Hurma Project is grateful for the financial support of pillars fund, the Waraich, Family Foundation, the El-Hibri Foundation and other generous individual donors. Maram Albakri and Maysa Haque are our research assistance. This episode of the Hurma Project podcast was produced by Carla Rene. If you benefit from the Hurma Project podcast and believe that this content could be helpful to others, please open your podcast app right after you complete listening to this program and type in a quick positive review. And if you give us a five star rating, you will help boost the visibility of this research. Assalamu alaykum.