BUSINESS: The Ultimate Resource

April 2003 Upgrade #7

ACTIONLIST
Discrimination Management
Getting Started
In the last two decades, lawsuits in the United States claiming discrimination by employers have increased by 2, 200%, to the extent that one in five of all lawsuits is now concerned with aspects of workplace discrimination. The cost of defending such a case is anything from $20,000 to $200,000. The average awards made by the courts for discrimination on the grounds of race was $750,000 last year. For wrongful dismissal it was $550,000; and for discrimination on the basis of disability, $380,000. These are numbers that every company has to take seriously. Discrimination differs from most other aspects of employee relations not only in the extent of legal provisions, but also in its emotional and social prominence. People tend to define discrimination in terms of their personal experience: if they feel discriminated against, this becomes a reality for them. Cases of discrimination still make regular headlines in the press, and courts still produce some surprises in interpretation of the laws. This is an area in which companies must be very sure of both their responsibilities and their rights. The adage that prevention is better than cure was never more relevant than in this aspect of HR management. Companies must have both a sound policy for preventing discrimination and a clear procedure for dealing with complaints quickly and sensitively. The policy and procedures will need to cover at least the following:

disability discrimination equal pay for men and women harassment, bullying, and victimization race discrimination sex and sexual orientation discrimination and increasingly, age discrimination

FAQs
Can a C.E.O. or organization be held liable for discriminatory behavior by an employee, even if they are unaware of it? In some countries, yes. In most, the requirement for not being held liable is that effective action is taken immediately when a manager becomes aware of a problem.

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Most countries that have passed legislation dealing with discrimination operate a principle along the following lines. An employer will be held liable for any illegal discrimination, harassment, or bullying that is committed by any employee unless it has taken all reasonable steps, and/or done everything reasonably practicable, both to prevent the discrimination/harassment/bullying from happening, and to resolve any that does happen fairly, appropriately and immediately. Is there any general definition of discrimination that I can use to start a discussion about company policy? It depends on the type of problem you are discussing. Very generally, however, you should be aware of two kinds of workplace discrimination.

Direct discrimination occurs when a person is treated less favorably than another in relation to recruitment, training, promotion, selection for being laid off, and so on, because of some biographical factor over which they have no control such as their race, age, or gender, and which is not related to job performance. Indirect discrimination occurs where a person of a certain race, age, or gender, cannot comply with an unjustifiable requirement imposed by an employer, which in practice can be met by a smaller proportion of that group.

Making It Happen
Establish a Policy and Procedures The only way to prevent potentially expensive problems for the organization is to anticipate them, in the form of well thought out policies and procedures. The Policy Employers must have a clear, written policy that sets out in detail what they expect of their employees in terms of their attitude and behavior. The policy should specify:

the organizations values in preventing discrimination the rights of all employees the individual and collective responsibilities of employees for preventing discrimination, bullying, and harassment the particular responsibilities of managers and supervisors the extension of the policy to relationships with customers and other groups responsibilities for identifying and reporting breaches of the policy

The Procedures Clear, written procedures for reporting discrimination and related problems should also be in place. These should be visibly supported and followed by managers and employee representatives. The procedures should:

be simple and understandable to all staff;

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be positive, focusing clearly on resolving any problem as fast as possible; contain sufficient step-by-step detail and guidance to encourage trust in its use by both victims and others; be as short as reasonably possible, and contain target times for completion of each stage; give guidance to those implementing it so that the same scrupulously fair decisions are applied in all comparable cases; facilitate good record keeping.

Both policy and procedures should be communicated to all existing and new hires. Make sure that all employees (particularly managers and supervisors) always have the competence and confidence to follow the spirit and the letter of the policy and procedures. Take a Practical Approach If you are looking at discrimination management afreshor for the first timeit will be clear that you are not starting with a blank sheet. There will be traditional systems and ways of doing things in the organization that have grown up over the years. There might also bein larger organizationsan informal culture that regulates relationships between people. This may be deeply entrenched, and may also run counter to the evolving trends in legislation to prevent discrimination. There have been many examples in recent years of corporate cultures that are (unwittingly) hostile to certain groups of potential employees. Institutional discrimination is a label applied with increasing frequency to organizations. Managers need to pay particular attention to understanding the full effects of the informal culture, and to making sure that it does not create problems. This is a difficult area: it is not easy to change established behaviors and norms. You can expect some resistance, which will need sensitive handling. Nor is this a problem that can simply be sorted in one go. Organizational cultures and the social environment are dynamic, changing systems, so regular monitoring of behavior will be needed. Align Corporate Culture with Your Environment Focusing the initial application of your discrimination management policy in a few key HR procedures will help the process of aligning corporate culture with the environment. These are some of the places to start:

Recruitmentrecruit only on the basis of the skills and abilities needed to do the job. Selectionselect on merit by focusing on objective information about skills, abilities, or potential. Seek evidence of positive attitudes about diversity in the workplace. If possible, publish your selection criteria and stay within them. Promotionbase promotion on the ability, or demonstrated potential, to do the job, and on appropriate behaviors defined by discrimination management policy.

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Training and developmentencourage all employees to take advantage of relevant training opportunities, and show how the organization offers development opportunities to all. Redundancybase decisions on objective, communicated, job-related criteria to ensure the skills needed in the business are retained. Retirementensure that retirement schemes are fairly applied, taking individual and business needs into account.

There is plenty of help available to get these procedures right. It is advisable to have your practices audited by an expert. The U.S. Department of Labor (Equal Employment Opportunity Commission) is a valuable resource for federal law on discrimination issues. Each state has a government agency responsible for oversight of federal laws in that state, so that may be the most practical place to begin your research. There are also management and HR consultants you could hire to assist you in building a proper policy and procedure framework. Realize that There Is a Positive Side As with most situations of this kind, there are spin-off benefits to implementing discrimination management, which can be directly to your organizations advantage. Recent studies in Europe, the United States, and Australia have shown that attention to discrimination management produces positive bottom-line effects for the company. Consulting with managers and employees about discrimination policy and procedures shows care and respect. By encouraging discussion of these issues, and showing willingness to incorporate good suggestions, you will build considerable allegiance among your employees. Employees in the companies studied reported, among other things, that:

the atmosphere of the company has become more positive and respectful; taboos that prevented discussion of sensitive subjects has been removed; teamwork has improved significantly; they have discovered ways in which they can personally contribute to alleviating discrimination.

On the other hand, organizations that paid little or no attention to discrimination were found to have:

high absenteeism and turnover among those who felt they were victims of discrimination or harassment; higher error and inefficiency rates; increased accident rates, and higher claims for compensation; low morale and loss of reputation with customers; lower productivity and quality; more errors in making appointments to key positions.

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Common Mistakes
Complacency The most common mistake is being complacent or unpreparedbelieving that it cant happen to us. When it does happen, however, the damage to finances, profitability, and reputation can be very severe. A by-product of one of the international studies mentioned above was that, in some sectors, almost 50% of employees thought that they had been the victim of harassment, bullying, or discrimination. Their employers were clearly not aware of it. Even allowing for the misguided or over-sensitive among these people, it is still a huge number of potential lawsuits to be defended, and fees and claims to be paid out. Allowing the Problem to Escalate Taking no action at the first hint of trouble, and thus allowing the problem to escalate, is almost as serious as being complacent. Employers are often shy about addressing difficult issues: they overlook or play down inappropriate behavior, especially when it is perpetrated by very skilled or experienced staff whom they cannot afford to lose. The problem in these days of political correctness is that behavior which could once be tolerated as individualistic or idiosyncratic is now illegal. It may quickly become the case that you simply cannot afford to keep the offending employee.

For More Information

Books: Covey, Anne. The Workplace Law Advisor: From Harassment and Discrimination Policies to Hiring and Firing GuidelinesWhat Every Manager and Employee Needs to Know. Cambridge, MA: Perseus, 2000. Cross, Elsie Y. Managing Diversity. Westport, CT: Quorum Books, 2000. Repa, Barbara Kate. Avoid Employee Lawsuits: Commonsense Tips for Responsible Management. Berkeley, CA: Nolo, 1999. Web Sites: The Brookings Institution: www. brook.edu/dybdocroot/gs/cps/50ge/endeavors/work.htm U.S. Department of Labor: www.dol.gov U.S. Equal Employment Opportunity Commission: www.eeoc.gov

Bloomsbury Publishing Plc 2003