Platt Perspective on Business and Technology

Human Resources and the due diligence of workplace discrimination threats

Posted in HR and personnel by Timothy Platt on February 5, 2010

This is my third posting now, on a topic that most of us would prefer to never see in any realized form and that most of us would also like to simply ignore – discrimination in the workplace. It is also an issue we have to be prepared for in case it arises anyway, as with time it might. My first two postings, in the Guide to Effective Job Search and Career Development series focused on this from the perspective of the employee, looking at potential discrimination issues in the hiring process, and for on-the-job discrimination.

Job Discrimination in Perception and Fact.
Workplace Rights and On the Job Discrimination.

This posting shifts orientation and looks at this problem area from the perspective of Human Resources and as a crucially important due diligence issue for them. I start here by listing my bottom line conclusions.

• Human Resources personnel all need to be sufficiently trained in this set of issues to know when they need to refer an employee complaint to expert handling.
• It is better to err on the side of referring potential discrimination cases that do not meet that level of concern, than to let genuine discrimination incidents slip through the cracks.
• Human Resources staff members may work for their employer but this is a case where the only way they can be supportive of their employer is to play a completely neutral role. Even just the appearance of siding with employer or employee can create prejudicial involvement and that can create problems at least as serious as the initial discrimination claim could at its worst.

I will add a fourth point here as well.

• The potential for discrimination complaints in any business or organization is just one reason why corporate legal council should be part of the business’ senior strategic team but it is sufficient reason for that inclusion in and of itself.

To take this out of the abstract, I will cite in brief outline a specific incident I have seen and with an actual if unnamed employer and its HR director. The business itself had a senior manager running a department who behaved in a very coercive, abusive manner. Basically, he felt that he could get more from his employees by demeaning, belittling, and threatening them and all the time. The effect of this, of course, was that everyone in his department was always trying to stay out of his way and out of his line of sight, and everything was very reactive with no potential for anyone to ever proactively find or develop new sources of value. All focus was on simply keeping the boss from exploding.

From a legal point of view this might or might not mean that specific action taken by this senior supervisor was discriminatory, as it is might not be focused sufficiently on any of the protected categories: race, gender, color, age and so on to qualify. This individual did create an incredibly dysfunctional and toxic workplace environment but that in and of itself is not enough to qualify as discriminatory behavior per se. It is still possible however, that specific events and series of events taking place in this environment could be overtly discriminatory.

Certain projects going on in this department were very high priority, insofar as they specifically addressed the points this senior supervisor would be performance reviewed on as his departmental and his personal professional goals. The people who were tasked with actually carrying out and completing these projects were automatically on the radar for this supervisor and they could not avoid his attention. He singled them out and exercised his toxic approach to management on them loudly and publically and repeatedly.

Did he discriminate against any of these particular individuals? I am not going to delve into the details here to further clarify that, simply noting that these people did face a very hostile, threatening work environment.

All of these employees attended one of the company’s regularly scheduled new employee orientation seminars and that included a short film on workplace discrimination, and a talk by the HR director. She outlined in her talk the policy of the company with regards to workplace discrimination and told her audience that the company had a councilor on retainer who was specifically assigned the task of working with and helping employees who felt they were being discriminated against. One of these employees, a few weeks after attending this seminar tried to take her up on this offer and this was where problems arose at the level of the Human Resources department.

The same HR director who had publically announced that there was a councilor available to employees to discuss and help resolve possible on the job discrimination then took the position of arguing against the employee having a need or right to meet with this councilor. She worked for the company and felt her loyalty to her employer meant she had to act as a buffer against complaints of this or any other sort.

The councilor in question was expertly trained in workplace discrimination law and she was not. He was a disinterested third party and she was not. This created a real liability exposure for both the HR director and for her employer when she chose to gate keep and block a more formal and expert review of this potential case. The supervisor in this was abusive to everyone. Was he also discriminatory according to the legal definition as he focused his attention on specific individuals who worked on tasks he saw as important to his own career? It was not up to the HR director to preemptively decide, and on the basis of minimal data and as a reflexive response to limit damages.

I am not going to say how this turned out, simply noting that a lot was going on and that the senior supervisor in question got very specific in what he said as he dealt with specific individuals.

This is almost the poster child example of where a Human Resources department has to have processes in place, and where it needs to have everyone trained on how and when to use them:

• Employees through new employee orientation and throughout their careers with the organization.
• Supervisors and managers in all departments and services.
• Human Resources staff members and supervisors with their special roles in dealing with this type of problem.
• Legal council that it be fully involved with this process. Here it is important that the business afford at a minimum, the full legally mandated protection for both employer and employee required to meet its due diligence needs.

Even an unsuccessful discrimination claim is a public relations and marketing nightmare come true for any organization. Planning for this possibility and acting effectively to bring it to the right people and without prejudice is vital, as this is one area that simply cannot be effectively handled ad hoc, ever.

If I was asked to advise a Human Resources department on developing and improving its operational processes and guidelines I would include this set of issues, addressing it from a somewhat specific set of perspectives that would include but not be limited to:

• Manager and supervisor training.
• HR personnel training and for all members of that department at all levels in it.
• Development and effective distribution of guidelines and documents related to this, with all pertinent documents posted to the Intranet as well as being shared directly with new employees as part of onboarding.
• Close coordination with corporate legal council, where they would be directly involved in proving update guidance on the changing legal context and status of this set of issues and on best practices for addressing this from a legal perspective.
• And all of this would be done in ways that connect to and support core business strategy and operations.

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