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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

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.

Florida Employers: Wage and Hour Considerations and Hurricane Irma

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

Just as Texas begins its slow recovery from Hurricane Harvey, Florida braces for Hurricane Irma. So, we must, again, look at wage and hour rules:

  1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed. However, you generally can require that an exempt employee use PTO during a day in which you close.
  2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day. If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time. You also must pay him or her if he or she does any work from home.
  3. There is no legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week. Under the FLSA, they must be paid if you close due to the hurricane for less than full work week and they do any work in the work week, whether it be few or many.
  4. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.
  5. Also, if non-exempt employee works at home, you must pay for all time worked. Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid. Remember, break rules apply to working at home too.
  6. Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.
  7. Thankfully we all know that no employee should be told to put themselves at risk to come to work. Just in case there is a manager who does not know this, you should make sure they do. Thoughts and prayers to our colleagues and their workers in Houston and its surrounding areas.

Houston Employers: Wage and Hour Guidance and Hurricane Harvey

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

For Texas employers, particularly in and around Houston, the priority is helping employees and remaining as operational as possible.  Just a reminder of the wage and hour rules that apply to remaining as operational as possible:

  1. As a result of the FLSA’s salary basis requirement, if as a result of the hurricane, you close for less than a full work week, you must pay an exempt employee for days that you are closed.  However, you generally can require that an exempt employee use PTO during a day in which you close.
  2. If you remain open and an exempt employee does not come to work, you do not have to pay the employee for the day; this can be treated as an absence for personal reasons, provided it is a full day.  If an exempt employee arrives late or leaves early, he or she must be paid for the full day, but you generally can require that he or she use PTO, if available, to cover the non-working time.  You also must pay him or her if he or she does any work from home.
  3. There is no legal obligation under the FLSA to pay non-exempt employees who do not work because you close due to the hurricane; however, there is an exception for non-exempt employees who are paid under the fluctuating work week.  Under the FLSA, they must be paid if you close due to the hurricane for less than full work week and they do any work in the work week, whether it be few or many. http://www.twc.state.tx.us/news/efte/h_regular_rate_salaried_nx.html
  4. Even if there is no duty to pay non-exempt employees, consider the employee relations message of paying exempt but not paying non-exempt employees for a day on which you are closed.
  5. Also, if non-exempt employee works at home, you must pay for all time worked.  Systems must be put in place to state who can work remotely and how they must record their time so that they are properly paid.  Remember, break rules apply to working at home too.
  6. Keep in mind also that there may be payment obligations under collective bargaining agreements and/or your policies.
  7. Thankfully we all know that no employee should be told to put themselves at risk to come to work.  Just in case there is a manager who does not know this, you should make sure they do.  Thoughts and prayers to our colleagues and their workers in Houston and its surrounding areas.

 

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

An Alternative to Voluntary Retirement Programs

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

Under federal and state laws (most or all), employers can have voluntary retirement programs. Of course, there is much litigation on whether and when an employee’s decision to retire is truly voluntary.

However, even if there is no pressure placed on an employee, think about the message that the program sends and/or likely will be heard as sending: we want to get rid of mature employees. This places “age in the air” and can be used to argue age bias when an older employee later is discharged or laid off (even where there is no bias).

Here’s the argument: you tried to incent me to leave; when that failed, you removed me involuntarily. And, how will a jury react?

Jurors have only one common denominator: everyone on the jury hopes they have gift of longevity; that is, that they, too, get older. So there may be sympathy and empathy for the mature worker.

There is an alternative, and safer, approach: a voluntary severance program that is offered to all or groups of employees regardless of age. Older employees with more seniority usually will be eligible for more by virtue of their seniority but the program is not aimed at them.

But what if someone applies and you want to say “No?” No material worries (absent saying “No” in a discriminatory way).

If a voluntary severance plan is properly drafted and distributed in accordance with ERISA, an employer should be able not only to exclude from consideration certain groups, positions etc., but also to reserve the absolute right to say “No” to any particular employee in a non-excluded position who applies for an exit package if the employer’s concludes that the employee’s departure is not in the employer’s best interests.

So this year, the 50th Anniversary of the ADEA, I encourage you to think beyond whether a voluntary retirement program is lawful. I ask you to think about the message it sends.

It is not only a legal issue. It is also a cultural one. What message do you want to send to workers with the experience you need to compete?

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

 

How Are You Honoring Holocaust Remembrance Day Today?

Every year, I write a blog for SHRM on Holocaust Remembrance. Below, is this year’s post.

Today, April 24, 2017, is Holocaust Remembrance Day (Yom HaShoah) .

During the Holocaust, more than 11 million human beings were systemically murdered. Plus, millions more died in battle. That includes our brave military forces that sacrificed their lives to save the lives of others.

Of course, every life is a universe. Every loss of innocent life matters equally.

But, the Holocaust had a disproportionate effect on the Jewish community. Six out of nine million European Jews were murdered—the percentage is staggering.

I acknowledge this is personal to me. Most of my family was killed in the Holocaust and that forever informs my worldview.

Those who were saved also informs my worldview. My cousin’s mom was saved by a Catholic Church at great risk to those who were part of its community.

YomHaShoah is a painful reminder for many of us and that pain does not remain at home. HR can help.

One way to do so is simply to post on your Intranet a remembrance statement. You can find words and images all over the Internet.

This is also an ideal topic for a diversity and inclusion program. We can focus on the Holocaust but conclude with a universal message: We cannot tolerate intolerance against any faith, race, ethnicity, etc.

Invite a survivor to speak. Bear witness to someone who did.

There are many ways that HR can remember. I respectfully request that you find a way to do something.

I close by citing Elie Wiesel:

“For the dead and the living, we must bear witness. Not only are we responsible for the memories of the dead, we are responsible for what we do with those memories.”

Kindness

I am pleased to share my latest post to The SHRM Blog on kindness and leadership.

I like to read and re-read blogs on leadership. They are helpful reminders on what I need to keep doing (or not doing) and where there are opportunities for personal growth. Although expressed from different perspectives, the articles often cover the same attributes or competencies that we rightfully expect from good leaders.

I am struck by how often we need to be reminded to listen. Sound too basic? If you are preparing your response when someone is talking, you are you fully listening? The answer is NO, and I have to remind myself of this on a regular basis.

And, of course, we are reminded that we need to express our recognition. But, too much attention is paid to recognizing concrete accomplishments and not enough to existential recognition: acknowledging someone exists by saying hello or non-verbally recognizing their presence.

I am glad to see more articles/blogs focus on caring. If you don’t care for your employees, they won’t care for you. So, some of our caring, if we are honest, in self-serving. .

But absent from the blogs that I have read is one attribute that feels endangered in our fast-moving, highly-polarized and sometimes cruel world: kindness. By kindness, I mean warm and gentle thoughtfulness with no expectation of a return on investment.

A casual smile. Picking up coffee for a colleague. Pulling back when you know someone needs space. Leaning in when you sense someone needs to talk. Asking someone if they are feeling better. Looking the person in the eyes with attention and not agitation.

We all have heard the expression “random acts of kindness.” That we need to be reminded to do them randomly speaks to their deficit in the ordinary course.

Being kind to people means more than caring about their concerns or appreciating their contribution. It means truly recognizing the humanity of a colleague without thinking about how what you do may benefit you.

As leaders, we need to do more than perform random acts of kindness. Kindness needs to be in our DNA. That does not mean being weak. And, it does not mean avoiding hard decisions. One of the best HR people with whom I have the pleasure to work was thanked after she terminated someone. The terminated employee thanked her for her kindness.

The antithesis of kindness is bullying. When I see bullies, I see weak snowflakes – those who can feel good about themselves only when they make others feel less than them.

When I see kindness, I usually see strength, someone strong and secure enough that they can risk being and being seen as more gentle. And that leads to the ultimate question: are you strong enough to be kinder?

The Oscars Tragedy and You

I am pleased to share my latest post to the SHRM blog.

I watched in anticipation Sunday night as the of the best movie of the year was about to be revealed. l was pulling for Fences or Lion so I knew they would not win.

And, then Bonnie and Clyde, also known as Faye Dunaway and Warren Beatty, announced the movie of the year. Beatty looked confused, knowing something was wrong. He showed the card to Dunaway, who blurted out La La Land.

The winning team went on stage and happily accepted the award. But there was background noise. And, soon, the reason became clear.

Not all was la la in La La Land. A mistake had been made. The real winner was announced: Moonlight.

Now, we are not dealing with an amateur production. We are dealing with the Academy Awards. And, a big mistake was made on the biggest award on the biggest night in Hollywood.

What happened:

1. The Academy immediately corrected the mistake.
2. The La La Land team graciously announced the Moonlight winners.
3. The Moonlight winners graciously talked about sharing the stage with the La La Team

Our work lives are not choreographed like the Academy awards. We must respond “in the moment” without cue cards or rehearsals.

And, yes, we make mistakes, too. Most importantly, that includes those who work with us but, in their eyes, for us.

Some delighted in the Academy’s mistake. I delighted in the honesty and grace by which it was handled.

You might want to think about that the next time an employee makes a good faith mistake. Their mistake is a test of your grace.

Love, Lust and Valentine’s Day

I am pleased to share my latest post to the SHRM blog.

There were times when I cautioned HR to keep a firewall between Valentine’s Day and the workplace. The reason for the caution is the initial purpose of Valentine’s Day.

We all know that the initial purpose of Valentine’s Day was for individuals to express their love to those whom they love in a non-platonic way. I was tempted to say romantic, but I once had a manager deny there was any romantic relationship because “it was only sex.”

Over time, however, the meaning of Valentine’s Day has changed. Just look at cards to parents, grandparents, kids, etc. There is no sexual message.

Many employees acknowledge the day too by simply saying “have a nice Valentine’s Day.” I don’t think they mean: “I want you here and now.”

And, some managers will bring in Valentine’s candy or other treats. I don’t think they have any predatory motive.

So, I am not sure it is reasonable to say Valentine’s Day has no place in the workplace. Does that not make an employer seem excessively restrictive? And that may have an unintended effect of undermining critical restrictions.

But here are 8 guard rails to consider as we approach Valentine’s Day:

  1. Okay to say Happy Valentine’s Day. I would avoid happy V.D.
  2. Better to say Happy Valentine’s Day to a group than an individual. You don’t want anyone to feel singled out.
  3. Be thoughtful not only on what you say but also how you say it. An accompanying wink can make earnings disappear in a blink.
  4. Managers should be more careful if, when and how. Perhaps respond only but don’t initiate.
  5. Managers should never send a card, e-mail or social media message to a subordinate over whom they have direct or indirect authority. Most certainly the card should not include an audio of I Honestly Love You.
  6. Never ask anyone who their Valentine is or whether they have one, unless you want to be a defendant.
  7. Any food you might bring in can be shared without fanfare. Don’t need to say anything. The food will speak for itself.
  8. Remember, not everyone has a “Valentine” in the traditional sense. While not having an intimate partner is not a “protected group,” such individuals are human beings who matter. Be thoughtful on how such individuals may feel when we share what is a common bond to most but not all.

The business world is becoming painfully competitive. Sometimes businesses get lost in defining and crowing about their cultures without genuinely caring for people who compose it.

No, HR does not need to coddle employees, but we need to help bring back some of the warmth in our workplaces that has been replaced by an increase in harassing behaviors, bullying and political infighting.

That we need to be careful on Valentine’s Day not to send intended to unintended romantic messages does not mean that our workplaces would not benefit if our words and actions manifested the love we feel in our hearts.

If you share metaphorically a little love in your heart:
And the work world will be a better place
And the work world will be a better place
For you and me
You just wait and see

Mary Tyler Moore and Single Women

I am pleased to share my post to the SHRM blog regarding the legacy of Mary Tyler Moore.

A lot has been written about the passing of Mary Tyler Moore. Perhaps we did not know at the time how ground breaking the Mary Tyler Moore show was. In retrospect, it is clear to us.

There are so many episodes that dealt with gender equality, including when Mary was paid less because she was a woman and denied opportunities because she was not a man. With a wonderful combination of strength and humor, she leaned in….and prevailed.

But there was something else about Mary Richards that is getting less attention: the fact that she was single. No, it was not because of a death or divorce but rather a choice.

I have spoken with many single women about workplace issues. A blog on this issue was slated for later this year but the timing unfortunately feels right now.

Single woman have shared with me:

1. They have been asked why they never married. Are married women (or men) asked why they choose to marry? The often unspoken assumption: it was a result, not a choice.

2. They sometimes feel excluded from discussion on managing work and life. While many single people have children, many others don’t. Our respect for life outside of work cannot be restricted to those of either gender who are married with children.

3. They at times feel marginalized when invitations to employer events include spouses, partners or significant others. I know some men who feel the same way. Why not just “adult guest?”

Yes, some state laws prohibit discrimination based on marital status. And, I don’t believe many women (or men) are denied jobs or opportunities because of their single status.

In fact, sometimes they may be given extra work, particularly if they don’t have children. The conscious thought process or implicit assumption: they don’t need to go home.

The dialogue about intimate relations has become refreshingly more inclusive. Yet, we sometimes fails to recognize those who are not in them.

Do single men face the same issues? I am not sure.

I think single men are often seen as having made that choice. Well, this is a choice more and more women are making, too.

So when we remember Mary Richards, we can remember her “spunk.” Lou Grant, I love spunk!

And, we should remember what a pioneer she was for women generally. But I suspect she holds a special place for single women everywhere.

In our workplaces, let’s continue to challenge ourselves to be more inclusive. It’s the least we owe Mary!