Jonathan’s preventive and corrective approach to employment/HR issues includes counseling, policies, training, agreements and audits. Areas of substantive focus include, for example: gender equality, wage and hour compliance, social media and employee engagement. When Jonathan isn’t counseling employers or dedicating his time to SHRM and the HR community, he can be found volunteering his time and efforts to animal rescue. Jonathan is also deeply committed to Holocaust remembrance. On the fun side, Jonathan is also mad about Mad Men, writing and speaking on the employment issues arising out of the MadMen Era! Follow Jonathan on Twitter @Jonathan_HR_Law.
My thoughts in the Corporate Board Member:
Amorous relationships between bosses and subordinates are fraught with risk. Boards need to deal with the issue head-on to protect employees, the company, shareholders and themselves.
The CEOs of McDonald’s, Intel and Boeing are among the executives who have lost their jobs as a result of having, by all accounts, welcome and consensual sexual relationships with subordinate employees.
To avoid the taboo of discussing sex in the workplace, we typically use the terms “romantic,” “intimate” or “personal” to discuss this office relationships. But while those words may make us feel more comfortable, they also may result in a board not addressing relationships that are fraught with legal and reputational risks. How we frame the question we ask ourselves may dictate our answer:
Option A: Should a board proactively address the issue of executives having personal and intimate relationships with individuals employed by the same company?
Option B: Should a board proactively address the issue of executives having sex with individuals over whom they have institutional power?
We really need to ask the second question to really understand the risks of an executive, particularly a CEO, having what, by all accounts, appears to be a consensual, sexual relationship with someone over whom he or she has direct or indirect authority—that is, anyone in the organization. Here are but some of the risks:
• The employee could claim later that, while she or he was a willing participant, they felt pressure to become involved, that is, the relationship was not truly welcome. An executive does not leave his or her power at the entrance to the bedroom door.
• Even if the employee acknowledges that the relationship was welcome when it started, what happens if and when it ends? Any adverse action against the employee is subject to a potential retaliation claim, i.e., I was denied a promotion because I ended my relationship with the CEO.
• Assuming the relationship flourishes without problems, will the employee’s supervisor feel truly comfortable addressing concerns with his or her performance knowing this may make the CEO less than happy?
• If the CEO sleeps with a subordinate, does not he or she invite managers to say #MeToo and have their subordinates respond with #MeToo claims?
Indeed, just the process of leading up to the sexual relationship is risky. For example:
• What if the CEO pursues a relationship and the subordinate signals a lack of interest but the supervisor pursues it? An employee is more likely to say, “Thank you, but I have other plans,” than “You repulse me sexually.” The CEO may not get the less direct message, and the continued pursuit invites a hostile work environment claim.
• What if the employee is direct and says, “I want to keep the relationship strictly professional” and the CEO does not pursue? Is not any adverse action against the employee subject to a potential retaliation claim? The answer is “yes.” Of course, the employer may prevail—but only after an embarrassing, salacious trial.
Boards need to deal with the issue head on to protect employees from what may be unwelcome pressure, to protect the organization from potential litigation and to protect themselves. For public companies, directors may face derivative claims by shareholders when such foreseeable risks materialize. Even in private companies, there may be a claim of breach of fiduciary duty.
While boards need to focus on the risky combination of sex and power, this does not mean that the policy itself needs to be this explicit. Indeed, some of the best policies I have seen in this area focus on intimate and/or personal relationships.
Further, there are many different policy options. Some employers prohibit intimate relationships where there is a power imbalance. In other companies, there is no prohibition but there is a reporting requirement. And, in still other companies, there are prohibitions for some types of senior leaders and reporting requirements for others.
No one size fits all organizations; there are benefits and risks to each approach. What is critical is that boards focus on the issue and make a reasoned decision on what will be an effective way to address the legal, reputational and other risks associated with high-risk relationships.
While this starts with a policy, it does not end there. It is strongly recommended that policy be coupled with training. When executives understand the personal risks to them of these high-risk relationships, they may be less likely to engage in them. At a minimum, you will hopefully learn of such a relationship from the executive—and not an online headline.
This week is suicide prevention week. The problem is much more serious than many realize. Read my post for SHRM to know how to create a safe and supportive environment for your employees.
According to the Centers for Disease Control and Prevention (CDC) WISQARS Leading Causes of Death Reports, in 2017:
- Suicide was the tenth leading cause of death overall in the United States, claiming the lives of over 47,000 people.
- Suicide was the second leading cause of death among individuals between the ages of 10 and 34.
- There were more than twice as many suicides (47,173) in the United States as there were homicides (19,510).
But not everyone who attempts suicide completes it. How many attempts? According to the American Foundation for Suicide Prevention, there were 1,400,000 suicide attempts in 2017. https://afsp.org/about-suicide/suicide-statistics/. Yes, 1.4 Million!
When you filter in those who have considered suicide, the numbers are even more staggering. Based on data from the 2017 National Survey on Drug Use and Health (NSDUH) by the Substance Abuse and Mental Health Services Administration (SAMHSA), 4.3 percent of adults age 18 and older in the United States had thoughts about suicide in 2017.
In response, one may ask: do employers have a duty to prevent, or at least try to prevent, suicide? In most circumstances, the answer is probably “no,” But that does not mean employers should not focus on the issue.
The law sets a minimum. Responsible employers who genuinely care about their employees go further.
What can you do as an employer?
- Educate yourself and other leaders on suicide, including possible warning signs. Severe depression, often coupled with substance abuse, is one of the primary causes of suicide. Do not expect employees to just “deal with it.” Substitute “cancer” for “depression” and you will see how cold and/or ignorant someone may sound if they suggest mental illness is weakness. We need to understand the issue if we are going to help employees where we reasonably can.
- Offer your employees access to professional help by way of an employee assistance program (an “EAP”). As we all know, an EAP is a very inexpensive way to offer employees anonymous support for myriad issues from substance abuse to marital problems to suicidal ideation. If you don’t have an EAP, make the business case to get one.
- Revisit your wellness program. Is there enough focus on mental health? Do not assume the answer is yes. We need to add light to the issue so that people do not hide for fear of societal judgment and the life-threatening risks that go with it.
- Share with all employees information about the national suicide prevention hotline. I will do that just now: 1-800-273-Talk (8255). Why would you not?
- Consider a program for employees on the warning signs of suicidal ideation and possible sources of help. You are more likely to get employees to attend/participate if part of your focus in announcing the program is how employees may be able to help their family members and friends. Attendance is not an act of self-disclosure but concern for others
- Emphasize when you discuss your health benefits both physical and mental health. It does not hurt to message explicitly that there is no stigma in getting mental health support—no more than getting dialysis.
- Consult with a mental health professional with expertise in the area if an employee is talking about suicide, directly or indirectly, or if you have an objective reason to be concerned about an employee (e.g., talking about helplessness). Obtain guidance on how to speak with the employee. Yes, requiring an employee to be evaluated by a mental health professional may create the risk of an ADA perceived disability claim. But think of the human risk if you avoid an intervention that could have made a difference.
- Include in your training programs to avoid harassing behavior, the unacceptability of messages that disparage, demean or make fun of mental illness. Training should make less likely that hurtful comments, including “jokes,” will occur.
- As importantly, respond to disparaging, demeaning or hurtful comments about mental illness that may occur notwithstanding the training, even if there is no complaint or objection. It is much more than avoiding legal liability for harassment; such comments may increase the unwarranted shame and potentially increase the risk of suicide.
- Focus on respect in your leadership training. Being abusive may not be illegal but it is bad behavior that may take its victim to an even darker place. Bullies are weak but they inflict penetrating pain.
- Get help yourself if you have had thoughts about (or have attempted) suicide. It is not weakness. I cannot think of any greater act of strength.
My latest blog for SHRM on talent acquisition and older employees:
When I used to eat meat, my favorite food was a hamburger (with French fries). I don’t think I would have been as enthusiastic if I had to order chopped cow.
I had dinner with someone eating sushi. I asked them if they would enjoy it as much if they had ordered raw fish. I owe them a dinner.
We use euphemisms appropriately to help us accept with what we otherwise would struggle. Shift away from food. Think of—or perhaps not—the alternative to “rest in peace.”
And, that brings me to older workers. Older workers are a critical source of talent as we try to fill the skill gap.
Yet, so often I find well-intended people look for euphemisms for older workers. I don’t think we do that for any other “protected group.”
I read an article about hiring the “young at heart.” I am glad their hearts may be young but what is that saying about the rest of their bodies?
Then, I hear about “mature workers.” I thought about this as I watched with childlike delight Sunday night’s game shows.
I also have heard “experienced workers.” That is true of many older workers. But some older workers, like younger workers, look to pivot into areas where they don’t have experience.
Perhaps my favorite, and by that I mean not, is “chronologically challenged.” This definitely challenges my patience, which already is challenged.
I guess it is better than “still alive.” But not by much. Grrr.
We need to look at people as individuals and not members of identity groups. But when we need to identify the group, let’s call it what it is: “older workers.”
Getting older is a gift not everyone gets. And, many of these workers have gifts they can share with and benefit your organization.
So let’s ban the euphemisms where there is no need for them. The euphemisms may be suggesting a message we don’t intend.
Fireworks on July 4 terrorize animals.
Every year, pets (particularly, but not only, dogs) left outside run away. Some are killed by cars. Others end up in shelters with uncertain fates.
Please keep your pets inside during fireworks. Consider putting them in a room with shades closed, soft music, favorite food, etc.
Note: even if you bring your dog or other pet with you to fireworks and he or she does not run away, he or she likely will be terrorized. Vets are bracing for July 5 emergencies.
The shelters are bracing, too. I am spending my afternoon at the local shelter where I volunteer to help prepare for the inevitable and avoidable July 5 nightmare.
We are not alone. Shelters everywhere are bracing: http://www.chicagotribune.com/news/breaking/ct-chicago-animal-shelters-overcrowding-20190702-goomlvcqhrhwzkiqs5i6xo4vka-goomlvcqhrhwzkiqs5i6xo4vka-story.html.
Enjoy the holiday but take care of your pets, too.
I look forward to spending July 4 with Scotty, Finny and Larry, my feline companions who do not like fireworks at all.
Every year, I write a blog for SHRM on Holocaust Remembrance.
This year, Holocaust Remembrance Day (Yom HaShoah) is next week on May 2, 2019.
This year, we are posting the blog early. Reason: so HR has time to consider some sort of Holocaust commemoration.
During the Holocaust, more than 11 million human beings were systematically murdered. Plus, millions more died in battle. That includes American, British and other brave military forces that sacrificed their lives to save the lives of others.
Of course, every life is a universe. Every loss of life matters equally.
But the Holocaust had a disproportionate effect on the European Jewish community. Six out of nine million European Jews were murdered—the percentage is beyond staggering.
This is personal to me. Most of my family was killed in the Holocaust and that forever informs my worldview.
Those who were saved also informs my worldview. My cousin’s mom was saved by a Catholic Church at great risk to those who were part of its community.
While I write about Holocaust remembrance every year, this year feels different. The meme #Neveragain feels less certain.
Last year, there was the massacre of 11 Jews at the Tree of Life Synagogue in Pittsburgh. Plus, there has been a meteoric spike in hate crimes against Jews across the globe in general and in the United States in particular (both before and after the Pittsburgh massacre).
Almost every week, if not every day, we see defacement of public or private property with Nazi swastikas. Indeed, we can find on line Nazi clothing and genocide games.
For many Jewish employees, anxiety over antisemitism is materially higher. This may be even more so for those whose families were personally affected by the Holocaust.
Now: what can HR do? One way to do so is simply to post on your Intranet a remembrance statement. You can find words and images all over the Internet.
This is also an ideal topic for a diversity and inclusion program. One option to consider: invite a survivor to speak. Bear witness to someone who did.
There are so many things that HR can do. I ask only that you do something.
After the Tree of Life attack, I attended an interfaith service at my synagogue. People of all faiths, races and ethnic backgrounds were there.
I heard from Jewish, Catholic, Protestant and Muslim clergy. Political leaders from both political parties and leaders of various racial and ethnic groups who were not Jewish made sure, along with the choir of clergy, that their Jewish brothers and sisters were not alone.
I was particularly touched by the words of a Lutheran Pastor. She said, in effect:
- When anything bad happens to any of us, it happens to all of us.
- When we do anything good for any of us, we do something good for all of us.
Holocaust remembrance days provides all organizations with an opportunity to remind their employees of these universal truths.
I close with a quote from Holocaust survivor Eli Wiesel:
“We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.”
Leaders cannot be silent.
I am happy to share my latest blog post that discusses leadership, labels, and hierarchy. Thank you SHRM BLOG for posting:
Let’s take a journey back to the Flintstones in Bedrock. Think of the Grand Poobah (without putting on your hat).
Now, no reasonable leader would ever refer to themselves as an employee’s Grand Poobah. Actually, some do much worse.
I was reading a memo by someone with power to an employee who reported to him. The employee had refused defiantly, without any justification, to perform multiple tasks required of him.
In response to a classic case of in-your-face insubordination, the person of power made clear by memo that, unless the employee did what his superior told him to do, he would be fired. I could not get past the use of the term “superior” ….I never can.
If the person with power is the superior, is not the person reporting to him, by definition, inferior? Grand Poobah is sounding better by the moment.
In most communications, there is no need to emphasize hierarchy. I like referring to colleagues as just that.
But there are times where hierarchy matters. So does the connotation of the word used.
To say one is superior—and by implication, the other inferior—is offensive.
How about “boss?” That sounds better, but still drips of hierarchy.
That leaves me with the obvious choice, but not as obvious to some in moments of frustration: supervisor, manager or leader. That describes what someone does, not who they are, with hierarchy implicit as opposed to explicit.
Please avoid “superior” and think twice about “boss.” Otherwise, you send a message that may result in an employee feeling devalued. When employees feel devalued, they are less likely to be engaged and more likely to be enraged.
Have I convinced you to nix “superior?” If so, I can say only one thing: yabba dabba do!
This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.
Follow me on Twitter at: @Jonathan__HR__Law.
Men cannot engage in discriminatory avoidance as a strategy to avoid sexual harassment claims. How do we mitigate this very real risk? My latest blog for Bloomberg:
As a result of the “great awakening” in 2017 with regard to the persistent and pervasive nature of sexual harassment (and worse), responsible employers are doing even more to prevent and respond to sexual misconduct. As we all know by now, no industry is immune.
Of course, women can harass men and there can be same-sex harassment. But, in the vast majority of cases, high profile or otherwise, it is a man of power inflicting professional, psychological and/or physical harm on a woman or women.
But now many men now feel they are the ones who are at risk. Afraid of being the target of false allegations or of being misconstrued, some men are simply avoiding women at all costs.
Avoid “at all costs” risk is not limited to Wall Street. Again, no industry is immune!
The risk was not unforeseeable. To the contrary, it was quite predictable as I noted in my article for Bloomberg in 2017.
While we should not coddle men (or women), we need to address the anxiety that some men feel. Otherwise, where leadership is male dominated, women ultimately may pay the price in terms of lost opportunities and employers may lose the benefit of their talent.
What can and should employers do?
1. Be more thoughtful on messages in training and otherwise.
Messaging matters. More specifically, for example, make clear:
- Harassing behavior will not be tolerated, even if not “bad enough” to be illegal. But avoid “zero tolerance” messaging which may be heard as suggesting any infraction is cause for discharge. This is not the case but may provide further fuel for avoidance.
- Every complainant will be treated respectfully; every complaint will be treated seriously; no deference will be given to the power of a person engaging in bad behavior, etc. But do not say “victims will be believed.” The negative implication for the accused is obvious: “I will have no chance to defend myself.” Foreseeable reaction: avoid those who may create this untenable possibility. Plus, the fact is not every complaint is true (or as alleged).
- The absence of a bad intent is not a defense to bad behavior. But don’t go as far as to suggest that an employee’s perception (impact) alone determines whether behavior may be harassing. Extreme fear fodder may shut down human interactions, with women potentially paying a bigger price in organizations where men have disproportionate power.
2. Avoid avoidance.
Employers need to be very specific in their training programs and otherwise that avoidance by men of women is not an acceptable strategy for avoiding harassment claims. There is a word for such avoidance: discrimination.
But it is not enough to make the statement. Employer need to provide guidance on safe inclusion. Here are but a few examples:
No, it is not okay to leave the door open for meetings with women but have closed door meetings with men. Think of the insider-outsider message.
Open or closed? Look at circumstances and not chromosomes.
Yes, bars can be a bad scene for workplace interactions. Alcohol is a risk factor, and some bars are worse than others.
But don’t leave women behind because you are concerned about the environment. Change the environment. Try coffee houses, instead.
Yes, there may be times when a leader may need to have a dinner with a report, particularly if the leader travels a lot. But could that invitation be seen as a request for a date?
Better to avoid the dinner if the invite could be misconstrued? No! That denies the excluded employee the benefits that go with inclusion.
Lunch may be better but, when dinner is necessary or better, be thoughtful: explain the business purpose; invite the employee to pick the time and place; limit the alcohol, etc. You might even think of a gentle way to signal you have done the same with others.
This is a big one: fear of travel. Of course, mixed-gender teams can travel together.
Please, women and men don’t need to stay in separate hotels. The issue is not hotels, but hotel rooms, which can be better thought of as bedrooms. Rule of thumb: stay out of the bedrooms of colleagues and don’t have them in yours.
Again, this applies without regard to gender. There is the insider/outsider problem if based on gender. Plus, let’s not forget same sex harassment or the fear of same.
Need to meet up? Try the lobby!
We need to address these granular issues not only in training but also day to day if we see or become aware of possible discriminatory avoidance. Beyond the scope of this article, we need to focus on steps to overcome avoidance in the context of mentoring.
3. Develop systems to address access issues.
The boys club is alive and well and fear of harassment allegations has resulted in some clubs putting additional locks on the doors. Need guardrails to break the locks.
No one size fits all but employers need to develop guardrails to prevent leaders from working only with those they feel most comfortable or safest. Implicit bias may become explicit bias because of the fear of being accused of sexual harassment.
But we must do more than establish guardrails to ensure equal opportunity to necessary and/or plum assignments, meetings, etc. We must monitor what occurs and take corrective where there is evidence that anyone is being denied opportunities for discriminatory reasons.
While I acknowledge the issue broadly, I and we should not dilute the message by failing to focus on core issue: men cannot engage in discriminatory avoidance as a strategy to avoid sexual harassment claims.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
This article is not legal advice, should not be constructed as applying to specific factual situations or as establishing an attorney-client relationships.
I am happy to share my latest post to The SHRM Blog.
Marla: “Did you know that Sally is sleeping with Gregg?”
Todd: “I heard that. How long has this been going on?”
Marla: “Not sure. Jeff?”
Jeff: “I have no idea but I do know they are a couple.”
Karen: “No kidding. Have you noticed how Sally recently is going on business trips with Gregg for no business reason.”
Jeff: “It depends on how you define business.”
Marcia: “I heard she also got a big discretionary bonus, too.”
Marla: “She really….I’ll stop there.”
Let’s assume there is a personal relationship between Gregg and Sally.
Two issues probably jumped out at you:
Is the relationship entirely welcome and consensual?
Is there any sexual favoritism as the dialogue would suggest?
Of course, these issues are critical and why ordinarily it is important not to ignore rumors or gossip about romantic relationships where there are power differentials (and why a reporting requirement imposed on the person with power if he or she is intimate with someone over whom they have direct or indirect supervisory or institutional authority).
But there is a third reason to pay attention to such rumors, and it applies even if there is no personal relationship or sexual favoritism. That is, the rumors may create a hostile work environment for the woman who is the object of them.
Citing prior case law, the federal Court of Appeals for the 4th Circuit stated crisply last month in Parker v Reema Consulting Services:
As alleged, the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as “sluts” or worse, prostitutes selling their bodies for gain.
In short, because “traditional negative…. stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society,” and “these stereotypes may cause superiors and coworkers to treat women in the workplace differently from men,” it is plausibly alleged that Parker suffered harassment because she was a woman.
If there is sexual favoritism, the person with power should be held accountable. But regardless of whether there is sexual favoritism, the rumors need to stop. Yes, there is an argument that sometimes the “gossip” could be protected by the National Labor Relations Act as it relates to terms and conditions of employment. But the NLRB risk of shutting down the sexist gossip must be balanced against the harassment risk of letting it continue.
This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.
I am happy to share my latest post to The SHRM Blog.
We are approaching Valentine’s Day and the risks that go with it.
Of course, everyone should know that it is inappropriate to send a card with a sexual or suggestive message. This is particularly problematic where there is a power disparity, but it is not limited to such occasions.
But when you look at Valentine’s Day cards, there are cards to parents, grandparents, children and grandchildren. I do not believe they have any romantic or sexual message; I need this belief to survive.
So if we are thoughtful and careful with the cards we pick out, or the words we say, what’s wrong with acknowledging the “holiday?” Is this not just another way to show employees that you care?
Your intent may be pristine, but the impact may be quite to the contrary.
The risk is great in the #MeToo era. So why take an unnecessary risk?
No matter how careful we are, Valentine’s Day is a holiday that revolves around love and romance. Even if not stated, the embedded message may be sex.
Rather than wishing our employees love on Valentine’s Day, let’s show them kindness throughout the entire year. Yes, work gets harder every day, and employees need more kindness to get through it.
By kindness, I mean warm and gentle thoughtfulness with no expectation of a return on investment. A casual smile. Picking up coffee for a colleague. Pulling back when you know someone needs space. Making yourself available when you sense someone needs to talk. Asking someone if they are feeling better. Looking the person in the eyes with attention and not agitation.
We all have heard the expression “random acts of kindness.” That we need to be reminded to do them randomly speaks to their deficit in the ordinary course.
Being kind to people means more than caring about their concerns or appreciating their contribution. It means truly recognizing the humanity of a colleague without thinking about how what you do may benefit you.
So let’s not express our love on February 14. Let’s practice kindness every day.
I am pleased to share my latest article posted on Bloomberg Law.
In the context of sexual harassment, we all are aware of the hashtag #timesup. Well, the same is true for pay inequity and pay discrimination.
In 2018, a majority of states have considered bills to address pay inequity. A number of these bills passed and we can expect even more activity in 2019. The number of lawsuits alleging pay discrimination has also increased. For example. in 2018 alone, the Boston Symphony Orchestra, Five Guys, Nike, and Spotify were among the many companies sued for pay discrimination.
For legal, business, and fairness reasons, employers need to get ahead of the curve and conduct an analysis to make sure they are paying fairly. But a pay equity analysis is deceptively complex.
Below are eight of the more salient mistakes/misconceptions I have observed when companies do pay equity evaluations and ways to address them.
1. Initial Assessment Not Under Privilege
An analysis to identify potential pay inequity later may be used against your organization to prove bias. So, consider analyzing your pay parity analysis under the attorney-client privilege.
However, even if structured and administered properly, a privileged investigation does not necessarily mean everything is privileged. For example only, the fact and scope of the analysis may not be privileged.
So don’t do an analysis, unless you are prepared to act on it.
2. Not Using an Expert
Many organizations have individuals who are technically qualified to do a multi-regression analysis, the heart of the pay equity analysis. But you want someone with deep expertise to guide you on what is a deceptively-complex process.
For example only, you will want to look at not only total compensation but also each element separately, including variable compensation where inequity may be more likely to exist. The variables to be held constant will differ depending on the element of compensation. Plus, there is the matter of “sequencing.” Not sure of the nuances of sequencing? I rest my case on the value of an expert. Plus, if there is litigation, relying on a strong expert has obvious benefits.
3. Looking Only at Jobs That Are Exactly the Same
Unlike the federal Equal Pay Act, many recently-enacted state pay equity laws do not focus only on pay equity where the jobs are the same. They require comparisons of jobs that are substantially similar, comparable or some other similar standard. This is true, for example, in California, Maryland, Massachusetts, New Jersey, Oregon, and Washington.
But what about jurisdictions where there is no pay equity law that goes beyond looking at pay relative to the “same” job, at least not yet?
To minimize claims (even if you prevail) and to maximize true equity, employers may benefit from looking at some jobs that are substantially similar or comparable, even in jurisdictions where it is not yet required. At a very minimum, consider looking at single incumbent positions, where employees may make the comparisons on their own.
4. Focusing Only on Gender
Federal and state anti-discrimination laws cover pay bias. And, these laws apply to a broad range of protected groups, not just gender. Further, the thee most recently-enacted pay equity laws—New Jersey, Oregon and Washington—apply to all protected groups under the state’s applicable non-discrimination law.
So, don’t focus only on gender. At a very minimum, employers should consider race, national origin, and age, too.
5. Relying on Defenses That Are Not Defenses
The fact that, as a result of the multi-regression analysis, there is a statistically-significant disparity does not mean that there is unlawful bias. It means the employer must evaluate whether there are legitimate, non-discriminatory reasons for the “outliers” (both high and low, not just low).
Some possible “defenses” include performance, seniority, and experience. But employers cannot simply pluck a defense listed in the applicable law.
Employers must ask: was the defense a factor considered, and applied consistently, in the process of determining this aspect of the employees’ compensation?
6. Assuming Good Statistics Means No Bias
It is dangerous to assume that no statistical problems mean there are no pay parity problems. A deeper dive is recommended.
For example only, there may be a perfect correlation between merit and performance evaluations, but that does not mean the performance evaluations are not tainted by conscious or implicit bias. How to address bias in performance evaluations and other factors that may include implicit or conscious bias is also complex.
Employers may be inclined to centralize and institute strong guardrails to limit the discretion that may lead to bias with regard to performance appraisals, discretionary bonuses, etc. But the centralization and guard rails may create the commonality of which class actions are borne. Employers need to walk the razor’s edge to avoid individual bias without creating an easy argument for certification of the class action.
7. Making Unnecessary Admissions in Taking Corrective Action
Let’s assume there are some low outliers that cannot be explained by legitimate reasons and need to be increased. The disparity could have been caused by bias. It also could have been a good faith mistake, a bad manager, etc. The reality is that, in most cases, you really won’t know the cause for sure; you will “know” only there is a problem to be corrected.
So make corrections without admissions that may not be true and invite back pay claims. Focus on the need for a change without speculating as to the cause of the inequity.
8. Documenting Outside of Privilege
If there is a pay equity challenge, you may want to rely on your analysis. If your initial analysis was conducted under privilege and you waive the privilege, how far does the waiver go? A court has discretion to hold that the desired discrete waiver of privilege results in a waiver over the entire subject matter of the analysis.
How do employers mitigate this risk? When the analysis is done under privilege, employers should consider re-running the final analysis and document the final decisions outside of privilege so that the employer can rely on non-privileged information in defending any challenge. This critical step, so important in protecting the privilege, is often missed.