Category Archives: General

Don’t Make These Mistakes When Checking for Pay Bias

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.

 

A Jewish Guy Who Wears a Chai Gets Personal

I am pleased to share my latest post to The SHRM Blog.

For many years, around the holiday season, I have written cautionary tales from “The Jewish Guy Who Wear A Chai.”  Chai is the number 18 in Hebrew and means life.

This year, I was reluctant to use the title.  For the first time in a long time, I have been the target of antisemitism.  Then, there was the massacre of 11 Jews at the Tree of Life Synagogue.

Hatred against Jews is not new.  But it is increasing—there is a meteoric spike in hate crimes against Jews across the globe (both before and after the Pittsburgh massacre).

The day after the massacre in Pittsburgh, I decided to avoid the Jewish Guy theme. That was until I went to an interfaith service at my synagogue.

Even with every effort to accommodate those wishing to attend, there was an overflow crowd with people standing close to each other against the walls.  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:

  1.  When anything bad happens to any of us, it happens to all of us.
  2.  When we do anything good for any of us, we do something good for all of us.

I left inspired to write this blog as who I am:  a Jewish guy who proudly wears his Chai.  I will not be cowered.

But, this year, I am not going to talk about holiday decorations or parties, as much as my sarcastic gene cries out. It is time to be more serious.

Regardless of our faith, or lack of faith, we must speak up when there is religious intolerance and that includes in our workplaces.  Here, too, silence is complicity.

But with religion, I have noted the condemnations, even if well intended, often are problematic.  To quote an article by Yair Rosenberg published in the Washington Post:

“It is impossible to recognize and fight a prejudice if you universalize it beyond all recognition.”

The attack in Pittsburgh was against Jews.  The attack in Egypt was against Coptic Christians.  We must be specific on the identities of the victims or we erase their identities.

That does not mean we should not universalize afterward.  We must.  After all, an attack on any of us is an attack on all of us.

But we must start with the identity of the victims.  So Islamophobia is not religious intolerance.  It is Islamophobia.

So, as I close, I chose my words carefully.

We have different faiths.  Some have no faith but act in good faith.

But we owe it to our employees—and ourselves—not only to condemn antisemitism and other forms of religious bigotry by their names but also to imbue the holiday season with an inclusive net of kindness.  After all, what we do good for any of us, we do good for all of us.

“Cooperative Dialogues” in New York City In Effect Now!

I am pleased to present my latest post to The SHRM Blog.

Important reminder that, effective today, October 15, 2018, under the New York City Human Rights Law (NYCHRL), employers must engage in a “cooperative dialogue” with applicants or employees in New York City with regard to reasonable accommodations in four (4) circumstances. More specifically, an employer must engage in the “cooperative dialogue” with:

  1. Victims of domestic violence, sex offenses or stalking;
  2. Individuals with pregnancy and related conditions;
  3. Individuals with religious needs; and
  4. Individuals with disabilities.

It is important to remember that, under the NYCHRL, the following are defined very broadly:

  1. The definitions of the 4 circumstances set forth above under which there may be a duty to make reasonable accommodations.
  2. The triggering event for when the duty to engage in the cooperative dialogue may arise in determining whether a reasonable accommodation may exist.
  3. The scope of the cooperative dialogue (in contrast to the interactive dialogue under the ADA).

With regard to the last point, under the NYCHRL, employers must provide to the individual requesting an accommodation a written final determination identifying any accommodation granted or denied. This critical requirement does not exist under federal or any other state or local law (to the best of my knowledge). Note: even where there is no such legal requirement, documenting the analysis is generally recommended.

The City of New York has provided guidance on the cooperative dialogue with regard to disabilities: https://www1.nyc.gov/assets/cchr/downloads/pdf/NYCCHR_LegalGuide-DisabilityFinal.pdf.

Guidance on the cooperative dialogue begins on page 51. The Guidance will be of some value for cooperative dialogues other than with regard to disabilities in terms of the process that New York City generally is looking for employers to follow.

Starting on page 112 are sample forms for the cooperative dialogue with regard to disabilities. These forms are a good starting point for employers, but should be reviewed by counsel for potential changes appropriate in light of other laws and/or the employer’s policies.

As always, this blog should not be construed as legal advice or as pertaining to specific factual situations.  

The Deceptive Complexity of Criminal Background Checks

I am pleased to provide my latest post to The SHRM Blog.

In order to conduct a compliant criminal background check, employers ordinarily must comply not only with the federal Fair Credit Reporting (FCRA) Act, but also state and local laws.  This includes not only ban the box laws, but also laws that impose additional restrictions and requirements beyond when a criminal background check can occur.

Not to be forgotten is EEOC Guidance on criminal background checks. Do not dismiss it as mere guidance. Much of it incorporates what the courts already have said.

Here are some issues employers must consider. I have used the FCRA as a framework for the discussion.

One:  the first step under the FCRA is an authorization.  Among other things:

A.  This must be a separate document and cannot be part of the application for employment.

B.  It cannot include a waiver of claims.

C.  In California, there is a different authorization under state law.

Two:  the second step under the FCRA is the pre-adverse action notice.  Among other things:

A.  Per se rules that result in preliminary disqualification are per se dangerous.  In addition to the EEOC, many states and local jurisdictions require that certain factors go into the analysis.  Such states include New York and Pennsylvania and New York City and Philadelphia go even further than their respective state laws.

B.  Certain factors cannot be considered in deciding whether a conviction is disqualifying.  New rules have gone into effect in 2018 in, among other locations, California and Massachusetts.

C.  The FCRA Notice of Consumer Rights that must accompany the pre-adverse action notice recently has been changed to address freezing credit.  And, some states, such as New Jersey, have their own notice which must be given, too.

Three:  under the FCRA, the final step is the adverse action notice.  In some jurisdictions, the adverse action notice must do more than inform the individual of the final decision, for example:

A.  In California, for example, individuals must be told they have the opportunity to appeal to the California Department of Employment and Fair Housing.

B.  In Philadelphia, there is effectively a repeat of the pre-adverse action step—individuals must be given the opportunity to challenge with the employer (not an appeal to City) the employer’s disqualification finding.

This short summary includes only but a few of the minefields in criminal background checks.  Employers must consider a patchwork of federal, state and local laws that is deceptively complex, a particular challenge for multi-state employers. Don’t go it alone.

This blog is not legal advice

Suicide and the Workplace

Because mental health matters, here is my SHRM Blog on suicide and the workplace.

This past month, two celebrities took their lives, Kate Spade and Anthony Bourdain.  To be more specific, they committed suicide.

It is important to say the word “suicide” because many media reports, at least initially, did not.  There is still, for some, discomfort with mental health issues in general and suicide in particular.

As with #metoo, high-profile cases draw our attention to an issue that is not limited to the high-profile.   Alarmingly, the suicide rate has increased by 25 percent since 1999.

But what does this have to do with employers?  Do employers have any legal duty to prevent suicide?

For the most part, the answer is generally “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? What should HR do?

  1. Educate yourself and your leaders on suicide.  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.
  2. 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.
  3. Share with your employees information about the national suicide prevention hotline.  I will do that just now: 1-800-273-Talk (8255). Why would you not?
  4. 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.
  5. Consult with a professional if an employee is talking about suicide, directly or indirectly, or if you have objective reason to be concerned about an employee (e.g., talking about helplessness). Obtain guidance on how to speak with the employee.  Yes, there may be some risk under the ADA in removing the employee from the workplace and requiring an assessment (‘perceived disability’ claim).  But that risk must be balanced against the human risk (among others) if your fear contributes to the employee’s decision to end it all.  Further, with careful planning, while the ADA risk cannot be eliminated, it can be minimized materially.
  6. Respond to disparaging, demeaning or hurtful comments about mental disabilities.  Such comments may increase the unwarranted shame and the risk of suicide.  Indeed, address as part of your efforts to educate your workforce on unacceptable behavior of a harassing nature.
  7. 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.
  8. 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.
  9. Get help yourself if you have had thoughts about suicide.  It is not weakness.  I cannot think of any greater act of strength.

 

Option B: Lessons from Sheryl Sandberg on Supporting Grieving Employees #SHRM18

I am pleased to share my latest post to The SHRM Blog regarding Sherl Sandbergs advice on how to support grieving employees.

I am excited to hear Sheryl Sandberg, COO of Facebook, speak later this month at SHRM’s Annual Conference & Exposition in Chicago.

Sheryl is best known for her 2013 book Lean In. In this blog post, I want to focus on the book she wrote last year, Option B, with her friend and professor at the University of Pennsylvania, Adam Grant.

Option A is the employee’s life with a loved one. Option B is surviving without him or her

Option B is based on Sheryl’s loss of her husband, Dave, and her painful but inspirational journey forward. While the book is primarily about emotional resilience, it also provides valuable lessons for HR and other leaders. Here are seven:

  1. Do not avoid discussing the issue for fear you will remind the person of the loved one he or she has lost. Do you really think he or she can forget?
  2. Do not avoid the person. We may do that consciously or unconsciously to avoid the discomfort associated with the issue. Even Sheryl said she felt isolated. Try being as strong as the person suffering.
  3. Ask “How are you today?” rather than “How are you?” As she notes, this shows that you recognize there is something bigger than the day going on in the person’s life without expressly saying it.
  4. Don’t ask “What can I do?” She explains that this puts the burden on the person struggling to help you help them. Instead, offer a specific way you can help.
  5. Do something specific. Tell the person you are thinking of her. Buy him coffee. Send her a book by an author she likes. Just do it.
  6. Don’t say things that unwittingly diminish your colleague’s pain, such as “He’s in a better place.” Are you sure? Instead, tell the person you know it is hard and you are available to listen or help (but only if you mean it).
  7. Revisit your bereavement policy. You may want to add additional unpaid days that a person may take in some circumstances.

In addition to what I learned from Sheryl, I need to add a legal caution that, fortunately, is consistent with common sense.

Listen more than you talk. Do not ask if or suggest that the person is depressed or otherwise needs help. That could buy you a perceived disability claim under the ADA.

Of course, you can remind the employee of the EAP. Is there some risk in recommending the EAP? Sure. But not as much as appearing heartless.

I am excited to hear Sheryl at SHRM18. It is not too late to register.

4 Red Flags That Administrative Work is Sucking the Life from Your Team

I am pleased to share my latest article posted to Entrepreneur.

Entrepreneurs live to create, develop and refine products and services. They love using creativity to make a difference. The smart ones know they need the support of those who are comfortable with administrative stuff. Somebody has to make the trains run on time!

Administrative work needs to be valued but, over and over, I hear entrepreneurs complain they spend too much on administrative work of questionable value. “Administration” can become a behemoth that crushes creativity and steals time. Here are four red flags that administration may be interfering with your mission.

1. To get an answer you have to talk with many people.

If you regularly need to speak with five people to get one answer, you have a problem. Time is not only money but also energy. When no one knows the whole picture, then those with power will have more power but at the expense of profitability and the sanity of the employees.

2. Regularly hearing “not my job.”

Most employees sincerely want to do a good job. More often than not, employees welcome the opportunity to expand their skill. Of course, there is the occasional employee who will say “not my job.” But, what if that is something you routinely hear from different people in different words or ways?

The pattern may speak volumes. As insane as it sounds, the employees may have been instructed not to help. Use your people skills to ask directly and respectfully why the resistance. Listen not only to what is said but also what is not said. You may find the employee is uncomfortable with not helping as you are in getting the help you need. But, the employee is simply following orders.

3. Rigid rules instead of value-based rules.

We need values-based rules, such as not tolerating harassing conduct, and to enforce such values-based rules aggressively. This is different from rigid rules relating to operations that have no relationship to values or the evolving nature of business.

Every organization must have structure. But, some rules are implemented just to give those who enforce them power. In other cases, a rule may have made sense at a given time but no longer does. Ask why the rule exists. Sometimes people don’t even know why they have rules other than, “We always have done it this way.”

Other times the rules assume the worst of all employees. Guess what: that’s what they bring out, too.

4. Redundant paperwork.

A friend of mine refers to the term as “administrivia.” The more forms, the better. To increase the torture, administration insists on multiple signatures. Worse yet, only certain people can fill out those forms. A salesperson I met took a job for less pay because she was tired of filling out forms rather than taking care of customers.

If you are considering applying for a job with the government to escape the behemoth bureaucracy that hides under the label of administration, you have a problem.

What do you do? Stop complaining about administration if you feel your administrative function is out of control. Make sure those in leadership know where administration provides support or where it creates unnecessary obstacles.

If you provide factual concrete examples to leadership where administration provides unnecessary obstacles, you should get relief. If not, you may need to look to another employer to provide it.

Friends Do NOT Let Friends Engage in Harassing Conduct

I am pleased to share my latest post to The SHRM Blog.

As a result of the “great awakening” last year of the persistence and pervasiveness of sexual harassment, we all know that more must be done to tackle this scourge.  Companies are looking to enhance their preventive efforts, and, of course, that must start at the top.

To minimize the burden on victims, employers are empowering “bystanders.” For examples, employers are—or should be–modifying their anti-harassment complaint procedures to the extent necessary to make clear that an employee does not have to be the object of unacceptable conduct to raise a concern. Employees can raise concerns if they are “bystanders,” that is, if they see, hear or otherwise become aware of harassing conduct.

Leadership training also should include a bystander component. If you have power and you see or hear harassing behavior, you must make clear, “in the moment,” the conduct is unacceptable and then take prompt and proportionate corrective/disciplinary action.

I keep asking myself: what more can bystanders do?  I have one suggestion for consideration: peer-to-peer interventions.

Take the following example:

  • An employee sees his friend look a female co-worker “up and down.” To the best of the employee’s knowledge, no one but he has seen the unacceptable conduct.
  • The employee has no power over his friend. And, he does not want to get his friend in potential trouble by filing a complaint, but does not want to ignore the conduct either.

If the employee is a true friend, he will talk with his peer. Consider the following response:

  • I have bad news and good news.
  • The bad news is that the way you just looked Jane “up and down” is not okay.
  • The “good news” is that I am telling you now so you don’t ever do it again.
  • This conduct demeans women and makes you look bad, too.
  • Please promise me you won’t do this again and will review the Company’s anti-harassment policy.

The emperor wore no clothes because no one told him he was wearing none.  There are degrees of unacceptable conduct, and sometimes a peer can jump in before what he or she sees or hears causes harm not only to others but also to his or her friend.

Of course, there are legal nuances that need to be navigated before incorporating peer-to- peer interventions into your employee training/education.  Those nuances go beyond this blog

For now, it is very simple: friends do not let friends engage in harassing behaviors.

 

5 Effective Ways to Upgrade Your Anti-Harassment Policy

I am pleased to share my latest article written for SHRM.

Good policies—including your anti-harassment policy—can help shape the workplace culture. Here are five general recommendations for HR professionals to consider as they revisit their organizations’ existing anti-harassment policies.

Don’t Be Limited to Sexual Harassment

Every anti-harassment policy should cover sexual harassment. But we cannot forget that other kinds of harassment are equally unlawful and must be addressed, too.

Simply stated, harassment based on any protected status is prohibited. This would include race, ethnicity and religion.

Imagine the question you’ll be asked at a deposition in a lawsuit from one of your employees if your policy addresses sexual harassment but not race: “Why do you think sexual harassment is worse than racial harassment?” There’s no good answer.

Avoid the question by making sure your policy is not limited to sexual harassment.

Avoid Legal Definitions

All of us have seen policies that quote regulations published by the Equal Employment Opportunity Commission (EEOC). The legal definition is fine for lawyers but, without more context, provides inadequate notice to employees.

You must include real-life examples of unacceptable conduct in your policy, examples that will resonate in your organization’s culture.

Sometimes, employers struggle with how much detail to provide. I get it. You don’t want to make individuals uncomfortable with a policy that was designed to make the working environment more comfortable.

Why not make this concern explicit in the policy? State that your intent is not to make anyone uncomfortable but instead is to make clear what is unacceptable so that employees have a comfortable working environment.

Even with this disclaimer, please be thoughtful on how you describe prohibited conducted. For example, every policy should include the phrase “hate words.” But I would never use the actual words.

However, you can give examples without spelling them out. For example, you might say: “Use of hate words, such as the ‘n-word.’ ”

Don’t Focus on What Is Prohibited

In order for harassment to be unlawful under federal law, it must be, among other factors, severe or pervasive. The more severe it is, the less pervasive it need be. The converse is true.

However, employers do not want to wait until conduct is unlawful before prohibiting (or responding to) it. The goal is to prevent and remedy harassing conduct before it rises to the level of illegality.

Therefore, it is recommended that, within a policy, employers lead off the examples of prohibited conduct with something like: “The following behaviors are unacceptable and therefore prohibited, even if not unlawful in and of themselves.”

The law sets a minimum. You want to make clear that you will not tolerate unacceptable conduct, even if it is not unlawful.

On a related note, it is dangerous to start your list of prohibited conduct with something like: “Sexual harassment includes but is not limited to … ” This is problematic for multiple reasons.

First, the conduct at issue may not be harassment as a matter of law. Mocking a disabled employee’s walk is harassing behavior based on disability. But, at least under federal law, if there is nothing more, it is probably not enough in and of itself to create a hostile work environment.

Second, if your prohibitions are framed in terms of legal wrongs, your corrective actions may need to be, too. And here you risk defamation claims.

That is, the conduct may not be severe or pervasive enough to violate federal law. But it may be bad enough to meet your judgment as to what is unacceptable, and therefore, it may be prohibited. Why apply a standard to conduct you may not be able to prove?

Drill Down on Sexual Harassment

Of course, you will want to include quid pro quo harassment and give an example of what that means—for example, requiring an employee to submit to sexual advances as a condition of a promotion.

But you also will want to include examples of conduct that does not constitute quid pro quo harassment that may nonetheless give rise to a hostile work environment. Common examples include sexual bantering, sexual “jokes” and inappropriate touching.

However, do not limit your examples to the strictly sexual. In particular, do not forget to include examples that involve pregnancy as well as gender-biased statements, such as stereotypes about women or men.

It is not just comments about someone’s sexual desirability that may give rise to a hostile work environment. Comments about someone’s perceived lack of attractiveness can give rise to a hostile work environment. Sexual objectification—favorably or negatively—is unacceptable.

Consider the Scope of the Prohibitions

It is helpful to make it clear how the prohibitions apply. Here are a few suggestions:

◾ First, make clear that the prohibitions apply to employees and nonemployees alike. Your employees cannot subject nonemployees with whom they work to prohibited conduct, and they should use the complaint procedure if a nonemployee with whom they work engages in such conduct.

◾ Second, be careful not to suggest that the policy applies only in the workplace. At a very minimum, make clear that the policy applies to company-sponsored social events.

The policy should make explicit that the prohibitions apply not only to the spoken or written word but also to e-mail, text messages and social media posts. I have observed a steady rise in the number of cases of harassment involving text messages and social media, so employees should be put on notice.

Of course, some social media may be strictly private. That is rare but possible. Consider language to the following effect: The harassment policy applies to social media posts, tweets, etc., that are about or may be seen by employees, customers, etc.

Yes, the employee’s Facebook account may be configured as private. But if co-workers are friends and see the posts, the posts are fair game for corrective action.

Of course, a strong anti-harassment policy is only half the equation. The other half is a robust complaint procedure, which will be addressed in an upcoming column.

Warning About Implicit Bias Awareness Tests

Please read this important article I wrote for SHRM on how implicit bias is a real problem and so are the tests that purport to measure it.

We all know that not all bias is conscious. Some bias is unconscious—often, referred to as implicit bias.

This means that we may be engaging in bias without even knowing we are doing so. This is most likely to occur when we make snap judgments.

For example, most of us have read about, or at least heard of, studies that demonstrate the name on an application affects the likelihood a candidate will be selected for an interview. Men do better than women and candidates with names that are often associated with people of color are less likely to be selected than those with names that are not. In other words, Kesha will get fewer interviews than Karen, and Karen fewer than Kevin.

To help bring implicit bias to conscious awareness, some employers are using tests designed to measure implicit bias. One popular example is the Harvard Implicit Awareness Test (“IAT”).

However, these tests are far from conclusive. There is substantial debate in the psychological and neurological communities about whether the Harvard IAT or other tests truly measure implicit bias.

Further, these tests create evidence that may be used against employers. Let me give you an example.

Your executive team members take implicit awareness tests. Cindy is your Chief Information Officer, and the results of Cindy’s implicit awareness test suggests an implicit bias in favor of women.

Cindy promotes Susan over Zachary. Zachary’s counsel argues that the results of Cindy’s test help establish gender bias.

Are the test results admissible at trial? The law is not yet settled but the answer may be “yes.”

What do you do if admissible? Hire an expert to discredit the test you administered?

At a very minimum, you need to be aware of this risk. My raising this legal risk is not hypothetical..

Better yet, consider ways to get at implicit bias without creating admissions that can ravage you in litigation. The options are as vast as your creativity.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as creating an attorney-client relationship.