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The Often Unacknowledged Bias Against Asian Americans

I am pleased to share my latest post for the SHRM blog:  http://blog.shrm.org/blog/the-often-unacknowledged-bias-against-asian-americans

May is celebrated as the Asian American and Pacific Islanders (AAPI) Heritage Month: http://asianpacificheritage.gov/about/. At times, this celebration seems to get much less attention than months dedicated to other groups of the diverse fabric of workplaces.

Perhaps, this is because, as a group, Asian Americans have been largely successful. For example, while less than 30% of the general population has a bachelor’s degree, approximately 50% of Asian Americans do.

However, because a group, broadly defined, has been successful does not mean that we should ignore bias that may exist against individuals in that group. Indeed, focusing on the success of the “group” may result in ignoring bias against the individuals.

So, while this month we celebrate the achievements of Asian Americans, we need to focus on the bias against them, too. If we don’t eradicate the bias, then individuals will not be as successful as they can be. Here are my top 7:

  1. Not all bias is unconscious. Sometimes the bias is quite conscious. It is sometimes framed as “lack of trust.”
  2. Sometimes the bias is based on stereotypes. The stereotype is that Asians are strong in math and science. This may result in their being discriminated against when it comes to jobs that involve strong interpersonal skills, such as human resources.
  3. At times, the bias is unconscious. While we should not generalize in the name of sensitizing, respect is shown in many Asian cultures different from North American norms. Lack of eye contact, which may be intended as respect, may be seen as dissembling. Saying “no” indirectly may be seen as lacking certitude as opposed to promoting face saving.
  4. Because there may be cultural differences, some employees may be less comfortable with employees of Asian heritage. The “not-like-me bias” may result in exclusion of Asian Americans from social and other opportunities to access decision makers that may affect advancement and other opportunities.
  5. Because Asian Americans are often referred to as the “model minority,” more may be expected of them. When they may fall short of our inflated expectations, they may be seen as failing, even when they actually are meeting “standard” expectations. There is no such thing as a positive stereotype.
  6. Or, because of the “model minority myth,” Asian Americans may not get the help they need. 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?
  7. And, harassment still exists, such as jokes about the shape of Asian employees’ eyes or mimicking the accent of an employee of Asian ancestry. Just plain ugly.

These are but 7 examples of issues to which we need to keep our eyes and ears open and respond appropriately if we see, learn or become aware of them. As leaders, to see and ignore is to condone. There is no such thing as a passive bystander when it comes to discrimination or harassment if you are a leader.

Now, let us celebrate the many achievements of Asian Americans: http://adrian.edu/uploads/files/AsianContributions.pdf. Check out the many websites referenced. The contribution is real.

But may we never forget the abject horror of the Internment of Japanese Americans during World War II: http://www.history.com/topics/world-war-ii/japanese-american-relocation Never again!

Why Holocaust Remembrance Still Matters

I am pleased to share my latest post from the SHRM blog in honor of Holocaust Remembrance Day.

The United States Congress created the Days of Remembrance as our nation’s annual commemoration of the Holocaust. This year, Holocaust Remembrance Days (Yom HaShoah) is today, Wednesday May 4, 2016. http://www.ushmm.org/remember/days-of-remembrance

During the Holocaust, more than 11 million human beings were systemically murdered. That includes 6 million Jews, 2/3 of the European Jewish community at that time. That percentage still boggles my mind. In my family, the percentage was much higher.

But the numbers would have been even worse were it not for the countless “righteous gentiles.” The term “righteous gentiles” is used to refer to those who are not Jewish and who risked their lives to save Jews during the Holocaust. They are specifically honored in Israel and throughout the world.

Today, I share with you links to some of their stories: https://www.yadvashem.org/yv/en/righteous/stories/. Please read about these heroes. Their stores are beyond inspiring.

On a personal note, I thank the Polish Church that hid my great aunt at their peril. Today, her daughter is one of my closest friends.

And, of course, there were the millions of American and other service men and women who lost their lives in fighting Hitler’s machine. They, too, cannot be forgotten.

I share this link to one story of their bravery. You can find so many more by using Google.

So what does this have to do with Human Resources? Of course, one connection to Holocaust Remembrance Day is the “human” in human resources. But it is more than just that.

This is not a day or week in which we celebrate the achievement or contribution of any group or people. In remembering the Shoah in our workplaces, we are reminded of how important it is that we brook no hate. It is also a time to recognize those employees whose lives were affected and shaped by this horrific period in history.

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 a great topic for a diversity and inclusion program. The diversity in experience but the universal message that includes all: we cannot tolerate intolerance against any faith, race, ethnicity, etc.

And, of course, every day, we must do our best to make sure that hate has no place in our workplaces. A strong policy is not enough. When it comes to hate-based harassment, if you are in human resources or a manager, there is no such thing as a “passive by-stander.” To ignore is to condone.

As Jews, we often say “Never Again.” And, when we say that, we mean to anyone–at any time–anywhere.

Shalom (Peace) to all.

That Difficult Conversation

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

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!

Lean Out?

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

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

Attack Bullying Without Being Attacked

Nobody likes a bully—but people often struggle to define exactly what bullying is. Like the former Supreme Court Justice Potter Stewart once famously said of obscenity, most people know it when they see it even if they can’t define it. The closest any state has come to addressing bullying is California, which has mandated training on “abusive conduct.” Yet even that law requires only training. It does not change California’s nondiscrimination laws to ban bullying per se. In California, bullying is still lawful unless it is based on prohibited factors such as race, gender, religion, national origin, age, sexual orientation or disability. The same is true under federal law and every state law.

In other words, it’s not unlawful to bully an individual merely because he or she is a competitor, for example, or to be an equal-opportunity bad manager who bullies everyone.

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