Tag Archives: jonathan segal

The Boys’ Club Perception Test

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I am pleased to post the latest blog that I have written on gender bias and boys’ clubs. This one was published, gratefully, by Entrepreneur: https://www.entrepreneur.com/article/274623

We read a lot about “Boys’ Clubs”. They are power circles of men, mostly white, who control, formally or informally, organizations or silos within them.

The gender demographics of the senior leadership team may be relevant but are in no way dispositive as to whether a boys’ club exists. I have seen organizations with senior leadership teams lacking in gender diversity that are not, in my opinion, run by a boys’ clubs. Conversely, I have seen organizations where the numbers at the top look good in terms of gender diversity but a core “boys’ clubs” calls the shots.

So, how do you know if you have a boys’ club? Of course, there is no test. So, I have a created one.

Warning from this lawyer — write your answers on a piece of paper and then throw away. Don’t want your self-evaluation to be used against you in litigation by a plaintiffs’ lawyer.

Emotions of this management lawyer — I want to scream about my prior warning. There should be strong privilege against discovery for critical self-assessment with eye toward increasing equality, maximizing compliance, etc.

Now, as for each of the five questions:

  1. If you generally agree, answer A
  2. If you are not sure, answer B
  3. If you generally disagree, answer C

The five questions:

  1. We don’t have a boys’ club.
  2. We don’t need a formal system to ensure equal access to meaningful opportunities; merit will prevail.
  3. More than a few of our sales and sales strategies informally take place in bars.
  4. I think the gender pay gap is attributable not only to employer practices but also to employee choices.
  5. Women mentoring women is essential to shutting down the boys’ club.

1. We don’t have a boys’ club.
Almost everyone knows that boys’ clubs exist. But many believe that they exist only at the employer next store. Certitude is a good thing. But, on this issue, a little doubt is a good thing. So give yourself:

  • Two points for A
  • Zero points for B and C

2. We don’t need a formal system to ensure equal access.
Often the gender gap at the top is because women don’t have the opportunities they need to get there. Absence of meaningful opportunities also contributes to the gender pay gap. There is no one system always works. But “no system” never works.

No system often leads to what the EEOC calls “like me” bias. Those in charge of opportunities give them to those just like them — often other men. So some vehicle to measure equal access to opportunity is essential. Merit will prevail but only if there is equal access to opportunity. Time to score it:

  • Two points for A
  • One points for B
  • Zero points for C

3. Sales and strategy meetings informally take place in bars.
Social inclusion is a form of business inclusion. Information is shared, strategies are developed and relationships formed and/or cemented. Of course, many men don’t relish business in bars. And, there are women who do. But the local watering hole is often the club house for the boys’ club. The same is true of the golf course. Okay, let’s score it:

  • Two points for A
  • Zero points for B and C

4. Pay gap due to employer practices and employee choices.
There is no doubt that there is a gender pay gap. Those who doubt it sound as credible as men who deny the existence of labor pains because they never have experienced them. But, the gender gap is not due solely to employer practices. If you step out of the game to be the primary caregiver, when you step back in, you will make less. And women are still more likely than men to be primary caregivers.

As for points, the pattern you may have predicted no longer holds.

  • Subtract 1 point if you picked A (you have thought about the issue).
  • No points for B or C but, if you picked C, you may see bias in certain cases where it does not exist.

5. Women mentoring women will shut down the boys club.
No. And here’s why:

  • There are fewer women at the top so women mentoring women will deprive women disproportionately of access to the top.
  • The burden of gender equality cannot be put entirely on women (particularly since men and women alike benefit from it).
  • The benefits to cross-gender matching are significant in terms of what each gender can impart and learn

Let’s score this one:

  • Two points for A
  • Zero points for B
  • Subtract one point if you picked C (again, very thoughtful)

Now, add up all of your points, subtracting points where you have earned them.

If you have five points or more, you may have a boys’ club, but don’t see it. If you have fewer than five points, you still may have a boys’ club, but you are primed to help dismantle it; please do.

That Difficult Conversation

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Please enjoy my latest article for SHRM’s HR Magazine.

Every HR professional and manager has had to have a tough talk with an employee about his or her performance. Sometimes it is in the context of an annual appraisal. Other times, it may be a final warning prior to termination. But regardless of when the discussion happens, careful planning is necessary. Otherwise, the wrong things may be said or done, and difficult conversations can quickly evolve into difficult lawsuits. Here are 11 tips to help take some of the pain—and risk—out of those closed-door meetings.

1. Don’t Delay

Understandably, many of us defer uncomfortable confrontations. But while we’re procrastinating, the employee may be well-aware that a performance discussion is in the offing—and may use that to his or her advantage. For example, the individual may consult with a lawyer and allege a legal wrong, engage in protected activity, or take protected leave.

When situations like these occur, they put you in a tough spot. That’s because when you finally have the difficult conversation you’ve put off for so long, it may appear retaliatory.

Delaying only gives the employee power to make a pre-emptive strike. If you must defer the discussion, document what the conversation will be about, when it will occur and why you have to wait to talk at that particular time.

2. Avoid Chitchat

People often try to break the ice at the beginning of a difficult conversation with casual chatter. It is understandable but problematic. No good can come from starting with “How is your daughter recovering from her surgery?” Well-intentioned though it may be, this question could result in a discrimination claim under the Americans with Disabilities Act (ADA).

Treat the person respectfully, but don’t engage in small talk to put off the issue. Acknowledge immediately that this is going to be a difficult conversation about serious performance issues.

3. Document in Writing

Ideally, you should prepare two documents before meeting with the employee. The first lists talking points for yourself; the second is a document for the employee.

Consider giving the memo (or appraisal) to the worker at the beginning of the meeting and allowing him or her a short period of time to review it. After all, you have (hopefully) spent considerable time writing it, so give the employee some time to digest it before you begin discussing the situation.

4. Provide Examples

Of course, you should broadly identify where an employee’s performance has fallen short, such as in the area of customer service. However, without more information, such generalities provide little guidance. They also don’t offer the employer much support in the event of a claim.

Provide a number of specific behavioral examples of times when the employee did not meet objectives. If you are recounting only a small sampling of many such incidents, make that clear.

5. Avoid Focusing on Intent

When an employee fails relative to performance expectations, the employer may be disappointed or even angry. You may want to say, “You don’t care” or “You’re not trying.” This is ill-advised, for multiple reasons.

First, intent is largely irrelevant. The issue is results.

Second, you can’t prove intent. An employee has the upper hand in being able to demonstrate how hard he or she has tried.

Finally, by impugning intent, you are, albeit unconsciously, attacking the employee. When attacked, employees fight back.

6. Stay Away from ‘Why?’

It is critical that managers do not inquire or speculate as to whether a physical or emotional condition or a work/life management issue may be giving rise to the performance deficiency. For example, if you ask an employee whether he or she is depressed, the worker may answer, “Not anymore. Now I have a perceived disability claim under the ADA.”

That does not mean that you should not try to help. Just don’t speculate as to the reason for the performance deficiency.

There are plenty of supportive things you can say, such as, “We want you to succeed. Is there anything we can do to help?”

If the employee mentions a disability, condition or religious belief, you must begin an interactive dialogue.

7. Make No Excuses

No employer is perfect, and sometimes an employee’s failings are due to those of the organization. If that is the case, the worker should not be held accountable.

However, too often managers say things like, “It’s probably just as much our fault as it is yours,” simply to soften the blow.

That can come back to haunt you. In fact, in a case I handled many years ago, an employee used a similar statement from his employer as evidence that the organization was at fault rather than the worker and that the reason given for terminating the employee was a pretext.

Don’t take responsibility unless you are responsible.

8. Watch for Code Words

Of course, before having a difficult conversation, you need to make sure that there is no bias. However, even when the employer has a legitimate cause for complaint, sometimes individuals use words that may hint at discrimination.

For example, what might be the problem with labeling one employee as “too emotional” and another as “too rigid”? If you guessed possible gender and age discrimination, respectively, you are correct.

In the first instance, an employee yelled and then failed to meet her deadlines. In the second, the individual refused to do what was being required of him.

The behaviors were unacceptable, but the labels suggested bias.

9. Avoid Absolutes

I remember in law school hearing “always avoid always and never say never.” That’s because absolutes are absolutely assailable.

It takes only one example to the contrary, and the statement you have made is no longer accurate and may be evidence of pretext. The argument: You are exaggerating in an attempt to “get” the employee because he or she is [fill in the protected category].

In difficult discussions, it’s better to say “almost always” or “almost never.”

10. Listen

Give employees an opportunity to talk. Sometimes the worker has a valid point—or may provide clues as to why he or she is underperforming. With that may come a road map for improvement.

As important as what the employee says is what he or she doesn’t say. If an individual says nothing and later claims he or she was denied a needed accommodation, the prior silence may help the employer defend itself from the employee’s subsequent lawsuit.

11. Clarify Expectations

Yes, you need to clarify what the problems are. But you must also articulate what your expectations are going forward.

Set specific objectives and talk about when you will meet to discuss them—then do it.

Remember, the primary objective of the difficult discussion is not to create a record that can withstand scrutiny. That is the secondary purpose.

Rather, your first goal is to enable the employee to make the needed improvements so that both he or she and the organization can succeed.

 

10 Keys to HR Grassroots Advocacy

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I am pleased to share my latest post to the SHRM blog: http://blog.shrm.org/blog/10-keys-to-hr-grass-roots-advocacy-0 

We all know the importance of grassroots advocacy. How we go about it may make the difference in whether our message is, in fact, heard. Here are ten (10) keys to consider to maximize the value of your efforts:

1. Follow draft legislation

Of course, you should track bills in your jurisdiction. Look to see where they are in the legislative process and the purported level of support.

But you also should be mindful of developments in other jurisdictions too, particularly neighboring jurisdictions. While all politics is local, there are trends that we ignore at our peril.

2. Evaluate bills – think critically

When evaluating a bill, consider not only the short‑term but also the long‑term impact. While some bills may have laudable intent, there may be adverse consequences.

For example, mandated sick pay may sound appealing, at least at first blush. But it limits an employer’s ability to design a workplace-flexibility program that reflects the needs of its workforce and meets the needs of employers. One size does not fit all.

3. Know your representatives

Whether at the federal or state level, you need to know your representatives. Visit them. And, invite them to meet with you and others.

Of course, there will be times it will be hard for you to have direct contact with them. Develop relationships with their staffers, too. Relationships with them can be the key to success and, in most instances, staff are more accessible than your representative.

4. Build positive relationships

You don’t want to be seen as someone simply making an “ask.” Make public policy a two‑way street.

Offer yourself, and your company, as a valuable resource for HR knowledge. Share with your representative’s staff research from SHRM (among other sources) as well as non-confidential information on your own organization to help inform their decisions.

This can be particularly helpful in the early stages with proposed legislation. At this point, the representative may have not staked out a view.

5. Get others involved

HR should not go it alone. Consider involving others in your organization, such as your CEO. Also, look at external organizations, such as trade or professional associations, with which you can partner. Look both nationally and locally as well.

6. Legal considerations

Do not forget that whatever you say may be discoverable. So, breathe deeply before responding to a bill that you think could threaten your survival.

Imagine a letter in which someone threatens to close down if a bill is enacted and then the bill is enacted and the employer shuts down. The letter could be the fodder for a legal claim.

One way to counter this is to make sure we discuss issues in a factual, measured terms. Some organizations often use the most bellicose terms to describe what will happen if a bill becomes law.

Stay above that fray and speak in direct, clear, and accurate terms. It gives your advocacy pitch more credibility.

7. Don’t forget yourself

Yes, there are personal considerations, too. Check with your employer before taking any public position.

It is possible that your employer may not want you to support or oppose a bill for reasons related to an important client, customer, your organization’s brand or other relationship.

You won’t know if you don’t ask. If you don’t ask, you might not keep your job.

8. HR considerations

Assume your workforce will find out what you say. Accordingly, make sure what you have said is defensible in terms of content and tone.

For example, I would avoid loss of profits when it comes to proposed minimum wage increases that are too high. I would talk about what the potential consequences on employees may be: there is only so much money for wages so a large increase in the minimum wage may result a contraction in the wage range, hurting our long-term employees.

9. Be practical

Pick your battles carefully. You may not want to oppose a bill that has almost unanimous bi-partisan support.

You also don’t want to give life to an issue that is dead. So be careful of over-reacting by giving a bill that is going nowhere publicity so that goes it somewhere.

10. Meet with your representatives

Under this category, six (6) recommendations:

  • Treat your meeting or interaction with an elected official’s office like any other business meeting. Come prepared, bring your business cards and discuss the issues in a professional, business-like way. Make sure you follow-up from the meeting with the staffer.
  • Do not make any assumptions with regard to the representative’s position or even knowledge of the bill. In fact, even if the representative’s name is on the bill, it does not necessarily follow that he or she supports it or even has read it.
  • Do not attack the motives of the representative. That only invites defensiveness, at the very least.
  • Explain the bill, in succinct terms, so that the representative knows what you are talking about. Discuss how the bill will affect your organization, one of his/her constituents. Even if he or she has read it, it is not likely to be top‑of‑mind.
  • Explain your position. In this regard, do not simply explain the pros or cons of the bill. State what you ultimately hope the legislator will do.
  • Don’t ask for the impossible. In some cases, it may not be politically possible for the representative to oppose (or support) a bill. However, it may be possible for him or her to remain silent.

Hope these suggestions are of some help. Okay, now let’s do it!

Why Being the Model Minority Hurts Asian Americans

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I am pleased to share my latest post to the SHRM blog: http://blog.shrm.org/blog/why-being-the-model-minority-hurts-asian-americans

When Asian Americans are described, we often hear words such as “so smart” or “so successful.” Indeed, Asian Americans are often referred to as the “model minority.”

The reality is that, as a group, broadly defined, Asian Americans largely have been successful. For example, while less than 30% of the general population has a bachelor’s degree, approximately 50% of Asian Americans do.

But calling a group the “model minority” hurts members of the group and can result in discrimination against individuals outside the group. Here’s why:

1. If you are a model minority, and “so smart,” you are not likely to get the help that you very well may need. When we assume individuals are “the model,” they are less likely to get equitable mentoring, support, etc.

2. If you are a model minority, then there is an implication that you may be stronger than others. This can result in bias against individuals who are white or members of other minority groups who in fact are stronger when it comes to a particular job opportunity.

3. With the model minority myth may come higher expectations. Being good is not good enough. We expect more: why isn’t this person as successful “as they should be?” This may result in bias against Asian Americans because of the inflated expectations.

4. Make no mistake about it: there still is material bias against Asian Americans. In some cases, it is unconscious. In other cases, it is blatantly overt. If a group is “so successful,” then why do we need to spend time addressing the real bias that keeps individuals within that group from being successful or even more successful?

5. When individuals talk about Asians as the model minority, there can be a tendency to focus on math and science. This may hurt Asian Americans when they apply for jobs that require strong interpersonal skills. One Asian American shared with me an experience of applying for an HR position and being given an application for an engineering position.

6. The model minority myth also ignores the reality that Asian Americans are a diverse group. This diversity within the Asian American community is often ignored.

7. Finally, the model minority myth may result in isolation. Asian Americans are not part of the white power structure but their concerns sometimes are only modestly addressed in efforts to increase diversity and inclusion. Indeed, at times, Asian Americans may experience outright hostility because of their collective success.

***

Asian Americans are a critical part of the fabric of our workplaces. If we want them to be “so successful,” then we need to stop saying that they are and deal with the bias that sometimes exists, even within the diversity space.

Adele’s ‘Hello’ & How It Encourages Stalking

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I am pleased to post a blog I wrote for Philadelphia Business Journal on the dangers of turning serious issues into parodies: http://www.bizjournals.com/philadelphia/morning_roundup/2016/02/adele-25-hello-encourages-stalking-duane-morris.html

I love the Adele song Hello. I have listened to it over and over and over again. I was disappointed not to hear her sing it last night at the Grammy awards.

But now I am relieved since I know the painful truth. Adele is “normalizing stalking.”

At least that’s what a group of students have claimed at the University of Oklahoma with support from at least one spokesperson from the University. How can this be?

In retrospect, it should have been obvious to me. The song includes the phrase: “I must have called a thousand times.”

Put aside the fact that Adele makes clear the person was never home. And, she never suggests that she even left a message. Sometimes facts get in the way when you look to make an issue when there is none.

But Adele is not alone. In Olivia Newton-John’s I Honestly Love You, she plaintively sings: “Maybe I hang around here a little more than I should.” Clearly, she, too, is normalizing stalking.

Stalking is an incredibly serious issue. It inflicts physical, emotional and financial harm.

Stalking is also often accompanied by verbal and physical harassment. It is hideous.

When we focus on Hello, we turn a deadly serious topic into what sounds like a Saturday Night Live skit. By going to the extreme, we turn tragedy into parody.

Sadly, this phenomenon is not limited to Hello. There are more than a few examples of groups on college and university campuses morphing sensitivity into satire.

We need to take serious issues seriously. And, that means speaking out against those who make a mockery of them.

Lean Out?

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I am please to share with you my latest SHRM blog post.

Sometimes clients ask me relative to gender:

1.  Would it be gender discrimination if we do X?

2.  Does the law require that we do Y?

Of course, we need to start with the legal imperative.  But, as HR professionals, we know we must transcend the legal imperative and focus on the business necessity (and moral obligation) to ensure gender equality.

For example, some subtle harassment may not be severe or pervasive enough to rise to the level of actionable harassment.  But it very well may create a place where women don’t want to work so they take their talent and contacts to a competitor.

Another example:  the law generally does not mandate that employers provide flexibility to help employees with work-life management.  But rigid employers will lose talented women (and men) to employers who get that flexibility and accountability are not inconsistent if managed correctly.

To paraphrase Sheryl Sandberg’s message in Lean In, organizations cannot survive, let alone thrive, if they exclude half of the pool of talent.  So, HR professionals lean in hard on the business case for gender equality or you may find successful women and women of promise “leaning out” rather than “leaning in.”

Bye, Bye, Bad Precedent

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I am please to share below my most recent blog for SHRM:

As we all know, in EEO termination claims, how we treat the “comparators” is critical. Two (2) key questions:

1. Did you let anyone else go for a same or similar reason?

2. Did you not let someone else go even though they had engaged in same or similar conduct?

What do you do if you have an inconsistent practice historically?

If you take a hard line, you may get an EEO claim. You are treated more harshly than X because of my [insert protected group or protected activity].

If you play it safe and a avoid hard line, you run the business risk by making bad precedent a consistent policy.

The beginning of a New Year is a great time to minimize the risk of bad precedent.

Prepare a document now stating that, regardless of what may have been the practice in the past, effective January 1, 2016, you will do X consistently.  You may even want to communicate something to that effect to the workforce (but without directly stating that there may have been prior inconsistencies).

What is the benefit?  You can show you have decided how you will handle the situation prior to and independent of knowing who next engages in the conduct at issue. If an employee is fired and brings a discrimination claim and uses pre-2016 comparators, you can defend on ground that the difference is not age, sex, race, etc., but rather the year in which the infraction occurred.

This does not eliminate the legal risk.  But it should minimize it materially. And the legal risk that remains must be balanced against the business risk of tolerating substandard conduct to avoid any legal risk.

Almost all predict that 2016 is going to be a difficult year. To meet your business needs, you will need agility without being bogged down by bad precedent.

Of course, it is more complicated with unions. You may need to negotiate with the  union. At a minimum, you always should provide the union with notice.

Bad precedent is, well, bad. Now is an ideal time to start making good precedent. Happy New Year.

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

How Philadelphia’s New ‘Ban the Box’ Law May Hurt Employers and Employees

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I am please to share below my blog for Philadelphia Business Journal. 

“Ban the Box” initiatives are hot and likely to get even hotter. Indeed, for employers in Philadelphia, the law just did.

By way of background, “Ban the Box” initiatives are state laws or local ordinances that restrict when employers can ask about criminal convictions. The box that is banned is the answer to the question: have you been convicted of a crime…..”

The policy considerations behind these initiatives is quite understandable. African Americans and, to a lesser degree, Latino Americans, are more likely than white Americans to have criminal convictions. It is fair to assume that most employers do not smile with glee when they see an affirmative answer to the application question about criminal convictions.

So asking the question up front may have a disproportionately hard effect on such minority groups. Conversely, if the question is removed from the application, the hope is that more applicants in these communities at least will be interviewed and have an opportunity to show what they can bring to the workplace before the employer learns of any convictions that may exist.

In 2011, Mayor Nutter signed into law an ordinance (that went into effect in 2012) that required employers to wait until after the first interview to ask questions on criminal convictions or conduct background checks with regard to same. It was, in my view, a reasonable balancing of the various interests.

This week, Mayor Nutter signed into law a new ordinance (that will go into effect in 2016, 90 days after signing) that will make the ban-the-box ordinance on the books even tighter. Employers will not be able to ask about criminal convictions (or conduct background checks with regard to same) until after a conditional offer of employment has been extended.

Plus, the new law will apply to all employers, even those with only 1 employee. The current law applies only to employers of 10 or more employees.

How does this play out in the real world? I think almost all reasonable people would agree that some convictions legitimately should result in disqualification of an applicant from employment for a particular job, such as:

1. An applicant who was convicted of embezzlement in the last 7 years applies to be a controller.

2. An applicant who was convicted of rape in the last 7 years applies for a security job in a hotel where he will have unrestricted access to guest rooms.

Under the new law, the employer won’t be permitted to find out about the (what should be) disqualifying conviction until the last moment in the application process, that is, after a conditional offer has been extended.

That means the employer will have wasted scarce time and money to get to the conditional offer stage where the process should have been cut off earlier. Further, by this time, qualified applicants may have found jobs elsewhere and now the employer is back to square one.

In addition to this burden, there is also now greater legal risk. While the current law does not specify the factors that an employer must consider in evaluating a conviction, the new law requires that employers make an individualized assessment considering factors such as:

1. The nature of the offense.

2. The time that has passed since the offense.

3. The nature of the job sought.

4. The applicant’s employment history before and after the offense and any period of incarceration.

5. Any character or employment references provided by the applicant.

6. Any evidence of the applicant’s rehabilitation since the conviction.

These factors are very similar to the factors that the EEOC recommended in 2012 that employers consider in making individualized assessments to minimize their exposure to adverse impact claims. But when it comes to the EEOC, we are talking about guidance; in Philadelphia, we are talking about legal mandate.

Plus, the EEOC recognizes that there may be “targeted exclusions” (narrowly tailored) for certain positions, that is, a per se rule. No comparable employer right appears to exist under the Philadelphia ordinance as amended.

So let’s go back to the rapist applying for a security position. He could argue that his references, job history and other factors were not given sufficient weight by the employer. That may be enough to get to a jury. And that means the employer will have to invest but more time and money.

The public policy issue at hand is very important. But, in my view, the new law goes too far, and I fear may be but another reason (think increased sales taxes, too) why entrepreneurs will look outside of Philadelphia to start their business dreams. And that is not good for racial and ethnic minorities who live in our City.

This may be but another example, as one of my best professors often said, of the unanticipated adverse consequences of virtuous social action. Except that the result can be anticipated.

Note: This article should not be construed as legal advice or as pertaining to specific factual situations.