Bystander Interventions Without Paternalism or Re-victimization

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

Responsible employers, among other steps, train managers on their “bystander” obligations. It is not enough to refrain from bad behavior. As a bystander with power, if you see or hear harassing behavior, you must respond to it. But how?

Let’s take a “hypothetical.” A business meeting takes place among executives.  There are four men and one woman.  During the meeting, the group realizes they are not going to meet Wall Street’s expectations. One of the men snaps “oh F…”

After he said it, the F bomber looks to the one woman at the table and says, “I’m sorry.” Another man at the table digs the hole deeper by adding:   “He did not mean to offend you.” [How did he know that?]

By focusing on the one woman at the table, both male executives not only drew attention to her (re-victimization) but also suggested that she was a fragile creature who needed to be rescued and protected from their vulgar mouths (paternalism).

In this hypothetical, the woman was not offended by the expletive when it was used in response to bad economic news.  But she certainly did not like the attention being placed on her.  Having finished reading Jane Austin, she was not going to fall off her Victorian chair because of a curse word.

In this case, if anything were to be said, it should have been: “let’s keep it professional” but without focusing on the woman.

Change the facts: what if what was said was a “joke” that demeaned women? Should not someone apologize to her now?

NO!  Again, that only makes her the focus.  In other words, it makes it worse.  Plus, it suggests, were she not there, the demeaning comment would have been okay.

The focus should be on the person who made the comment.  Looking at the person who said it, someone with power (including HR) should say: “That is offensive to me. We will talk later.”

Respond “in the moment” so that others do not assume your silence is complicity. Then, take appropriate corrective action more confidentially.

Preventing harassment is more than preventing liability; it is about preventing harm. We need to train on “in the moment:” responses to bad behavior, or we may create harm in the process of trying to correct it.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

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.

 

Construing a Continuum of Harassing Behaviors

I am pleased to share my latest article posted to Bloomberg Law Insights.

We hear many people use the terms “sexual misconduct” or “sexual harassment” to describe a continuum of harassing behaviors. Further, more and more employers are adopting or reissuing “zero tolerance” policies for such collectively defined behaviors.

Of course, we must put an end to the litany of horrific behaviors to which women (and some men) have been subjected. There is no defense to the indefensible.

But we also need to be careful not to use a single label to describe a broad spectrum of unacceptable conduct. For example, we all know that a sexually suggestive comment on someone’s appearance is objectively unacceptable. However, if we put that comment in the same category as sexual assault, we risk minimizing the seriousness of the latter by lumping it with the former.
That is part of the danger in zero-tolerance messaging. At first blush, “zero tolerance” sounds good. However, it may be heard as suggesting that, regardless of the severity of the unacceptable conduct, the
wrongdoer will be terminated.

This is dangerous because it may discourage victims who just want the problematic behavior to stop from reporting it because they do not want the wrongdoer to be terminated. Yes, she (or he) will not be a
silence-breaker but instead will suffer in silence to avoid someone else’s suffering more.

Zero-tolerance messaging is dangerous for another reason. A leader who becomes aware of unacceptable conduct by a star performer may not report it for fear that the star will be terminated. The thinking is entirely unacceptable but it is also foreseeable.

So, instead of lumping all behaviors under one label, we need to look at a hierarchy of bad behaviors. Instead of applying corporate capital punishment in every case, we need to take proportionate corrective
action based on how bad the conduct is. At a very minimum, the corrective action must be reasonably calculated to deter further unacceptable conduct.

With this background, here is a hierarchy of behaviors that constitute misconduct or harassment for employers to consider when preparing policies, training programs, investigations, and corrective actions.

1. Lack of Respect/Civility
The law does not require that employers be respectful or civil. Yes, an executive can yell and intimidate its employees, so long as it does not target employees for such hostile conduct based on their gender,
race, religion or other “protected group” status.

While such unacceptable conduct does not violate the law, it violates human decency. Plus, it is bad for business. Employees who are bullied (as well as those who witness it) underperform, if they do not leave
for a better workplace.

Further, disrespectful or uncivil behavior creates fertile soil for harassing behavior that may break the law. One witness who testified before the EEOC Select Task Force on Harassment called incivility the
“gateway drug” to harassment.

For all of these reasons, employers are well advised to respond to disrespectful, uncivil and abusive behavior, even if not unlawful. While employees may call such behavior harassment, employers must be
careful to avoid the label. It may not be.

2. Gray Areas
Telling a colleague that her or his new suit is “sharp” at a social event is not harassing behavior. Conversely, telling that colleague she looks “hot” in that new suit is harassing behavior. Let’s leave what is clear and enter the land of gray.

What if a male colleague tells a female colleague she looks “attractive” in that suit. He may mean “nice,” but his use of “attractive” may be heard as “hot.” The same word may have very different meanings between the parties to the communication.

We all need to be more thoughtful about what we say and do. If a word can have a sexual or suggestive meaning, then find another word.

As employers, we need to keep in mind that not all cases are as black and white as those we have read or heard about during the last few months. In some of the complaints we receive, the conduct falls into gray areas. In such areas, at least for the first instance of such conduct, proportionate corrective action may consist of non-punitive coaching or counseling.

3. Sexually Harassing but Not “Bad Enough” to Be Illegal
Under federal law, for sexual harassment to be actionable, among other factors, it must be severe or pervasive. Some state or local jurisdictions, such as New York City, have established lower hurdles that
must be met for conduct to be actionable.

So, at least under federal law, the following behaviors, in and of themselves, probably do not constitute unlawful conduct:
• a sexist “joke”;
• an inappropriate comment of a sexual or suggestive nature; or
• a leer or a gawk

To prevent harm to employees and to avoid legal liability, employers should respond to sexually harassing behavior, even if the behavior in and of itself is not unlawful. In an employer’s preventive efforts, this message must resonate loud and clear. An employee does not have to violate the law to violate the employer’s policy.

However, in taking corrective action in these circumstances, employers should avoid the legal label. Use “sexually harassing behavior” rather than “sexual harassment.”

But, even here, distinctions must be made within the category of “sexually harassing behavior.” For example:
• If an executive makes a degrading comment about women, it is worse than if a lower-level employee
does the same. Power magnifies the wrong.
• If a lower-level employee makes a degrading comment about women, it is worse if he has done so before and been warned not to do it again.

The label we apply to this category of unacceptable conduct does not alone dictate the nature of appropriate corrective action. What is proportionate also may depend on myriad other factors.

4. Sexual Harassment
Some conduct, in and of itself, constitutes sexual harassment.

The clearest example is when a supervisor or other higher-ranking employee conditions the granting of any term, condition, or benefit of employment on a subordinate’s submission to sexual advances or
punishes the subordinate for not submitting to them. This is often what is referred to as “quid pro quo” harassment, that is, “this for that.”

Another example may be use of the “C” word. Some courts have found that saying the “N” word once may create a racially hostile work environment. A court very well could find that using the “C” word once
may create a sexually hostile work environment.

If conduct is or may be sexual harassment in and of itself, the proportionate corrective action is almost always termination. I say “almost always” rather than “always” because there could be an exception,
such as if the employee’s supervisor used the same hate word and the subordinate said he went “along to get along” with his supervisor. In these circumstances, the supervisor should be terminated. The case of the subordinate may be less clear.

While the severity of the conduct in these cases must inform the level of corrective action, employers still may wish to stay away from the legal label. Employers can do what is right for their employees without
necessarily making what may be argued to be an admission of liability.

5. Sexual Assault
In some high-profile cases, we are dealing with more than the civil wrong of sexual harassment. We are dealing with a criminal wrong: sexual assault.

If, after an appropriate investigation, an employer concludes that there has been a sexual assault, there is only one proportionate remedy: termination.

In this regard, it is important to emphasize that law enforcement may have elected not to pursue the matter does not mean the employer should ignore the matter. While the determination by law enforcement may be one factor an employer may consider, it rarely will be determinative.

Even where an employer concludes there was a sexual assault, such as grabbing a woman’s breasts or genitals, the employer still is better off avoiding legal labels and describing the behaviors.

Conclusion
While there is a continuum of bad behavior, each category does not exist in isolation. We need to recognize that each level of the hierarchy of bad behavior creates a cultural environment where the next level of bad behavior is more likely to occur. Just as lack of civility can be the “gateway” to sexual harassment, sexual harassment can be the gateway to sexual assault. We must have zero tolerance to bad behavior but with a proportionate response to how bad the behavior is so that the bad behavior is not repeated or becomes worse.

This article is not legal advice and does not apply to specific factual situations.

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.

Advice for Managers: What I Learned from the Matt Lauer Revelations

I am pleased to share my latest post to Philadelphia Business Journal.

When allegations initially were made against Harvey Weinstein and Kevin Spacey, I admit I was not surprised. While I was not aware of their reputations, I always found both of them somewhat “creepy.”

When multiple individuals came forward corroborating each other, it became clear that we are dealing with serial harassers. Again, I was not surprised.

This is important because the additional evidence confirmed my emotional reactions to them. I know enough not to make investigatory findings based on an emotional pre-disposition, but everyone who conducts investigations needs to be aware of their own emotional predispositions so that investigations do not end up with “confirmation bias.”

Then, came the termination of Matt Lauer. I was, to put it mildly, shocked.

For many years, I started my mornings with Katie and Matt. I respected and like both of them. I had “welcomed” them into my home.

While Matt Lauer denies some allegations, he has admitted wrongdoing. In his first public statement since being fired from NBC’s “Today” show, Lauer said “Some of what is being said about me is untrue or mischaracterized, but there is enough truth in these stories to make me feel embarrassed and ashamed.”

I thought Matt was smart and likeable. More importantly, my sense was that he was a decent man.

So, when the allegations against Matt Lauer were released, and more women have since come forward, I thought: “this does not sound like Matt Lauer.” Of course, I don’t know him but his conduct as it has been revealed did not comport with my perception of him.

In workplaces, managers routinely receive complaints about other employees who allegedly have engaged in harassment. How they respond is incredibly important.

I was aware of my emotional reaction to Weinstein, on the one hand, versus Lauer, on the other hand. But what if my emotional reactions were reflected in my verbal responses as a manager.

What if I had said, about Weinstein, “I’m not surprised.” That would have suggested knowledge, even if not the case.

What if I had said, about Lauer, “That does not sound like Matt!” I would have been diminishing the allegations based on how I perceived the alleged wrongdoer.

When we train managers, it is absolutely critical that we provide them with guidance on how to respond “in the moment” to allegations of harassment. If we don’t, they may focus on how they feel and not the woman (or man) before them.

In my view, the appropriate response to a complaint starts with: “Thank you for bringing your concerns to my attention. We take them very seriously.”

Yes, it is human to have an emotional reaction based on your view of the individual who allegedly has done wrong. But, it is inappropriate to share that reaction when someone has the courage to step forward, regardless of whether you end up being right or wrong.

The truth is that none of us knows for certain who would–or would not–engage in sexually harassing behavior. That’s why investigations are so important, without assumptions, one way or the other.

I believe that Lauer is sorry. I hope that it is not simply because he got caught.

I thought I knew Matt Lauer. I was wrong.

Men Must Do More to End Harassment

But again we have been rocked by explosive allegations of sexual harassment and sexual assault. In the case of Harvey Weinstein, there are now more than 30 women who have stepped forward. Weinstein admits to bad behavior but claims it was all consensual. From what I have read, this is not a good defense, even for a science fiction movie.

Weinstein is far from the only predator in Hollywood, and Hollywood is just a symptom of the problem. The casting couch can affect who gets plum assignments, leads, contacts, etc. in any industry. Few men with power would ever consider, let alone engage in, the kind of conduct engaged in by Weinstein and others but they must do more than just refrain from the indefensible. With power, men have the opportunity, indeed the obligation, to create cultures where harassment does not flourish. So what do we do?

1. Stand up in the moment.
You don’t need to have a daughter to stand up. You just need a conscience and a spine. So speak up if you see or hear bad behavior. To be silent is to condone. Yes, the worst behaviors are very often private but sometimes they are accompanied by less serious but still bad public behavior. For example, don’t laugh at the sexist jokes. Instead, make clear they are offensive to you and then take corrective action.

The less serious public behaviors may be but the tip of the iceberg. Where appropriate, engage a third party to see if there is more than meets the eye. Climate surveys by skilled professionals can uncover what has not been reported without creating claims where none may exist.

2. Don’t wait for the direct complaint.
The victims of harassment frequently are embarassed or feel unwarranted shame. Some women won’t vocalize their discomfort but instead avoid the harasser or become uncomfortable when his name is mentioned. Observe closely for, and listen carefully to, signals that something may be wrong.

There won’t always be signals. But where there are warning signs, think about how to offer your help in a way that respects the recipient and does not create an issue where there may not be one. This can and has been done successfully.
3. Create additional reporting vehicles.
Fear of retaliation is a great inhibitor of timely reporting. So you may want to take a look at your company’s policies and at least consider having a procedure by which employees can report complaints externally, even anonymously.

Not every complaint is true and that applies to anonymous complaints, too. But every complaint should be taken seriously, and I have been involved in matters where the ability to report externally and anonymously has led to the facts that resulted in the unmasking of a serial harasser. So consider the option.

4. Hold other leaders accountable.
Harassers sometimes generate big bucks and that is why individuals sometimes cover up for, and even truckle up to, them. You need to cross their bridge to get meaningful work and the money that goes with it. Make clear to other leaders that you expect them not only to refrain from harassing behavior (severe or subtle) but also to report to a designated person or entity complaints or potential problems which they see, hear or of which they otherwise become aware. Ostriches don’t make good leaders.

As with all expectations, reward those who live up to them and punish those who don’t. Your organization is only as strong as its reputation and it can be destroyed if leaders are passive bystanders.

5. Model what you expect.
Most of all, men in power need to be good role models. There is nothing cool about demeaning women. The abuse is both powerful and pathetic. There is no defense to the indefensible. Sexual addiction is no more a defense to harassment than alcoholism is to driving drunk.

Speaking of alcohol, it is a major risk factor. Some cultures celebrate alcohol and such alcohol-centric cultures take away any slim inhibitors that otherwise might exist. Bottom line: it’s on men. Any questions, pal?

This column was originally published on Entrepreneur.com on 10/20/17.

The Role of HR in Smashing Harassment

Please read my latest post to The SHRM Blog on the importance of HR in stopping harassment.

I have been thinking a lot about Harvey Weinstein and other high-profile cases of serial sexual harassment. These cases are extraordinarily disturbing, to say the very least.

There are some who have suggested that the Weinstein nightmare is simply a Hollywood problem, dismissing it as nothing more than the age old “Hollywood casting couch.”  How patently wrong they are.

Hollywood needs to clean up its act, but it is not just Hollywood. What happens in Hollywood is but a symptom of a much broader societal problem.

Predatory sexual behavior by men with power exists in every industry. Of course, women can engage in harassment, too, but I am not aware of any women who have exploited their power to harass men or women in the way Weinstein and other men have done.

This is not to suggest that all men with power abuse it in such a heinous way. But leaders in general and men in particular must do more than avoid what is wrong, and behavior is wrong long before it rises to the level of what has been reported in the high-profile cases. By their words and their actions, leaders must make the organization’s anti-harassment policy a true reflection of corporate culture.

HR plays a critical role in this battle. Publicly, HR professionals must stand up to harassment and implement holistic programs to prevent it from occurring. But not all preventive efforts will be successful.

When bad behavior happens, there must be consequences. More quietly, HR has and will continue to play a key role in helping to remove from workplaces those who abuse their power and assault the dignity of others.

On social media, I have seen some ask whether HR is protecting the employer or its employees. The answer is both.

HR must protect employees and, in doing so, it protects the business from legal and reputational risk. There is a reason that the “H” in HR stands for human.

Recent events do not create a new issue for HR to tackle. The best HR professionals are already all over it.

But HR has an opportunity, indeed an obligation, to ask itself: What more can be done? The HR professionals with whom I speak are asking questions along the lines of:

  • How do we ensure that leaders do not simply pay for but attend anti-harassment training and make clear their support for it — again, by their words and actions?
  • What is the best way to assess whether there may be a culture of complicity and, if there are complicit people with power, how do we best incent them to do what is right and stand up to what is wrong?
  • Knowing that many women who feel harassed do not bring claims out of fear, how can we create complaint procedures and environments in which employees do not fear retaliation if they raise or support concerns?
  • How do leaders respond “in the moment” to unacceptable conduct without engaging in paternalistic rescuing or re-victimization?
  • Other than thanking an employee for bringing any concerns to their attention, what should leaders say (or not say) when an employee has the courage to open up to them?
  • How can we respect the strong desire of many victims of harassment to keep the matter as confidential as possible but still send a strong message that the company will not brook unacceptable conduct, severe or subtle?
  • What are some promising practices to remind employees throughout the year of the reporting mechanisms, assurances of non-retaliation and harassing behaviors that must be avoided, recognizing that, even in the best cultures, training once a year may not be enough?

These and other questions require careful thought. Our employees deserve nothing less.

But one point must be crystal clear in every organization: The more power you have, the more is expected of you. Those who abuse their power must be met with prompt and proportionate corrective action.

In some cases, this will mean terminating the rainmaker. But if you ignore, or worse yet protect, him, a jury can and will take away all the rain. Plus, values matter.

While I am horrified by recent events, I have some hope by the response I see in the HR community. But HR cannot do it alone; it does not “own” civility.

Every leader must join the battle. It is one of the moral imperatives of our time.

Segal was appointed to and served as a member of the EEOC’s Select Task Force on Harassment. However, Segal speaks for neither the EEOC nor the taskforce.            

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP

95 Million Reasons to Conduct an I-9 Self Audit…Very Carefully

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

In 2009, the Department of Homeland Security (“DHS”) began auditing the I-9 practices of Asplundh Tree Experts Co.  Last month, the Company pled guilty in Pennsylvania federal court to a charge of knowingly employing immigrants without authorization to work in the U.S.  The fine: a record $95 million.

In response, more and more employers are considering self-audits before DHS comes knocking at their doors.   While employers are well-advised to conduct an I-9 self-audit, there are legal minefields that need to be navigated or the self-audit may increase the employer’s potential liability.  Here are but some examples:

  • In the interest of being super compliant, some employers have considered having all employees execute new I-9s.  This is not super compliant, but rather super dangerous.  It raises serious discrimination risks under the Immigration Reform and Control Act (“IRCA”).
  • Other employers have questioned whether the Trump Administration’s Executive Order on DACA workers (Dreamers) requires that employers complete new I-9s for these DACA workers.  The answer is an unequivocal “NO.”
  • Employers cannot select for inspection employees they perceive to be high risk, such as those on visas, or those with “foreign-sounding” last names.  This type of targeted audit raises all but certain liability not only under ICRA but also the employment non-discrimination laws.
  • Inevitably, employers may find that some I-9s are missing.  In these cases, employers should complete new I-9s, dating them on the date in which they are completed.  NEVER back date.
  • In other cases, employers may find I-9s that are incomplete.  In these circumstances, the employer, using a different color ink, should have the document completed (either by the employer and/or the employee, depending on the omission) and, again, the employer should date the change on the date in which it is made.
  • In still other cases, there may be a mistake.  No employer ever should white out anything on the original I-9.  Rather, the employer, in a different color ink, should cross out the incorrect language, substitute the correct language and date same on the date the change is made.
  • The employer should prepare a summary of the scope of the audit, the manner in which it was conducted, and its findings.  But this is another blog for another day.

This blog should not be construed as legal advice.

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.

The Risks of Bias Testing

I am pleased to share my article from SHRM’s HR Magazine posted on August 25, 2017. 

When hiring and promoting people, HR professionals and managers know that certain factors—such as gender, race, disability status and age—cannot be considered in the decision-making process under the law. What they may not understand, however, is that, without any conscious awareness, they actually may be considering these precise factors.

For example, a white male manager may know that gender and race lawfully cannot be considered in a hiring situation. But he, as a white man, may favor a white male candidate over a woman of color based on how “comfortable” he is with each of them, even though he has no idea that his comfort level may relate to race and/or gender.

Unconscious bias, often referred to as implicit bias, is bias that we are unaware of. It happens automatically and without any conscious thought process and is triggered by our brain making snap judgments formed, at least in part, as a result of the messages that we received growing up, as well as our own experiences, culture, mass media and other influences.

But how can we address a form of bias that we are unaware we have?

The first step is to acknowledge that bias exists and that no one is immune from it. Good people can—and do—make biased decisions. That’s one reason a training approach with a punitive tone won’t work well and, in fact, is likely to be counterproductive.

Implicit bias is both personal, in that the various stereotypes that employees have internalized can vary based on their experiences, and ubiquitous, in that we all harbor unconscious assumptions; it’s part of being human.

That doesn’t mean we should sugarcoat the issue—but it’s important to understand the dynamics driving unconscious bias and to think about how to best raise the topic so that individuals will be motivated to learn more about it and how it influences their decision-making. Raising awareness through bias testing, however, is a risky approach.

Understand the Evidence

You can start by familiarizing yourself with the scientific evidence demonstrating the existence of unconscious bias. In a 2002 study by the University of Chicago Booth School of Business, “Are Emily and Brendan More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination,” researchers sent recruiters virtually identical resumes that differed in only one way: the applicants’ names.

They found that individuals who submitted resumes with “white-sounding” names received 50 percent more callbacks than those whose monikers were more likely to be associated with black applicants. In other words, all else being equal, Karen will fare far better in her job search than Keisha will.

Another classic study, 1997’s “Orchestrating Impartiality: The Impact of ‘Blind’ Auditions on Female Musicians” by the National Bureau of Economic Research, involves an orchestra that wanted to increase gender diversity but was having trouble finding women with the requisite talent.

After the orchestra had no luck with the traditional audition process, individuals were asked to perform behind a curtain. Magic! As a result of this step alone, women were 50 percent more likely to proceed to the final round of auditions.
In both cases, conscious and unconscious bias were likely at work. But as the latter example—in which the orchestra stated a genuine desire to increase gender diversity—shows, it is often people’s implicit prejudices that steer them toward partial outcomes.

 

Know the Basis for the Bias

What is the basis for implicit bias? Part of the answer may lie in neurology and social psychology.
Stereotypes that are perpetuated and reinforced by messages we receive through the media, societal cues or our individual experiences can become embedded in the amygdala region of the brain, which is activated when we make snap judgments based on pictures, images or names that can correlate with a characteristic such as race, gender or age. As a result, we make unconscious associations, which can be either positive or negative, based on these factors.
 
Understand the Risks Of Testing

There are a number of tests that individuals can take to become more conscious of their unconscious biases. One is the Harvard Implicit Awareness Test (IAT), which measures implicit bias in 14 areas, including gender, race, religion, age and sexual orientation.

The test shows images and words associated with a color, gender, religion, etc. Generally, the slower the test-taker is in pairing certain words or images with a specific group, the more likely he or she has an implicit bias, according to the assessment.

A report published in the European Review of Social Psychology in 2007, “Pervasiveness and Correlates of Implicit Attitudes and Stereotypes,” found that:

  • 68 percent of respondents had a more favorable automatic association with people who are white than they did with people of color.

  • 76 percent made a greater connection between the words “men” and “careers” and “women” and “families” than they did with the converse concepts (“men” and “families,” and “women” and “careers”).
But while the IAT and other such tests may be instructive for individuals, these assessments are far from conclusive. For example, there is considerable debate among psychologists about their reliability. (A discussion on this topic appears in “IAT: Fad or Fabulous?” in the July/August 2008 issue of the American Psychological Association’s Monitor on Psychology.) Moreover, the tests may create legal risk because the results are discoverable in litigation.

Consider the following example: Greg chose Jim over Jane for a promotion. Soon afterward, Greg is deposed in a claim by Jane alleging sex discrimination. The plaintiff’s attorney initiates the following line of questioning:

“You took an implicit awareness test?” the attorney asks.

“Yes,” Greg replies.

“Did you have any implicit bias in terms of gender?” the lawyer continues.

“I was surprised to learn that I favor men over women,” Greg says.

 “And you picked Jim over Jane. Is that correct?” At this point, the plaintiff’s attorney is thinking about using the money her firm wins in this case to purchase a summer home.

“Yes, that is correct, too,” Greg says.

“But you admit both were qualified?” she asks.

“Yes, but …” Greg trails off.

Now Greg’s company would need to bring in an expert to discredit the test that was used, and even then the jury could find the test to be more valid than some psychologists may find it to be.

So think carefully before reflexively using implicit awareness tests. At a very minimum, consider their potential usefulness as well as the legal perils that they may create.

Fortunately, there are less-risky steps employers can take that are helpful in identifying and addressing unconscious bias. I will cover them in next month’s issue.