Discrimination differs from most other aspects of employee relations not only because of its legal implications but also due to its emotional and social prominence. People tend to define discrimination in terms of their own experience. An employee who feels discriminated against will see discrimination as an issue that cannot be ignored. Discrimination cases still regularly make headlines, and courts continue to find new ways to interpret the laws. Workplace discrimination is an area where companies must be certain of both their responsibilities and their rights.
The old saying "prevention is better than cure" was never more relevant than in the context of HR's ability to prevent discrimination, and the only way to prevent it is to anticipate it. Companies must have both a well-thought-out policy for its prevention and clear procedures for handling complaints quickly and sensitively.
In the last twenty years, lawsuits in the United States filed against employers by employees claiming discrimination have risen over 2000%. Reportedly one in five lawsuits now involves workplace discrimination. The cost of defending these cases ranges from $20,000 to $200,000. The average court award for race discrimination last year was $750,000; for wrongful dismissal, $550,000; and for discrimination on the basis of disability, $380,000.
In some countries, yes. Most countries, however, have passed legislation that includes a statement of the circumstances under which an employer is not held liable. For example: "An employer will be held liable for any illegal discrimination, harassment, or bullying that is committed by any employee unless it has taken 'all reasonable steps,' and/or done everything 'reasonably practicable,' both to prevent the discrimination/harassment/bullying from happening, and to resolve any that does happen fairly, appropriately and immediately."
The policy and procedures will need to address—at a minimum—the following critical areas:
- equal pay for men and women
- harassment (including retaliation against those who charge discrimination)
- national origin
- sex and sexual orientation
Very broadly, there are two kinds of workplace discrimination which you need to be aware of:
- Direct discrimination occurs when an employee or potential employee is treated less favorably than another in relation to recruitment, training, promotion, selection for being laid off, and so on, because of a biographical factor over which the person has no control such as race, national origin, age, or gender, and which has no relationship to skills or job performance.
- Indirect discrimination occurs when a person of a particular race, age, or gender, cannot comply with an unjustified requirement imposed on everyone by an employer, and which, in practice, can be met by only a smaller proportion of people of that race, age, or gender.
You must have an easily understood written policy that details the company's expectations in terms of employee attitude and behavior. This policy should specify:
- the organization's values with regard to discrimination;
- the rights of all employees;
- the employees' responsibilities for preventing discrimination, bullying, and harassment;
- the particular responsibilities of managers;
- employees' and managers' responsibilities for identifying and reporting discrimination
- the limits of the policy (e.g. how does it extend to relationships with customers and other groups?)
Clear, written procedures for reporting discrimination and related problems should also be in place and should be visibly and unequivocally supported and followed by managers and employee representatives. The procedures should:
- be simple and easily understood by all staff;
- be positive, focusing clearly on resolving problems as quickly as possible;
- contain sufficient step-by-step detail and guidance to encourage confidence in their use;
- be as concise as reasonably possible, and specify a timeframe in which to complete each stage in the process;
- contain guidelines for implementing the policy and procedures fairly and consistently;
- facilitate proper record keeping.
Be sure all existing employees and new hires have copies of your policy and procedures, and that they also—especially managers and supervisors—have the competence and confidence they need to follow them.
If you are taking a fresh look at discrimination management or looking at it for the first time, you will soon discover that you are not starting from a blank page. Systems and behaviors—and even an informal culture—that regulate people's relationships may have developed over the years within the organization. It may be a deeply entrenched culture that also runs counter to evolving trends in antidiscrimination law. The examples in recent years of corporate cultures that are (unwittingly) hostile to particular groups of potential employees has led to the label "institutional discrimination" being applied with increasing frequency to organizations. Managers need to analyze and understand the full effects of any informal culture that might exist, and make sure that it does not create potential liabilities. If you find it necessary to change established behaviors and norms, you can expect some resistance and will need to handle it in a sensitive manner.
You can also expect to revisit the issue of discrimination management regularly. Organizational cultures and the social environment are dynamic, changing systems and require regular monitoring.
A good place to begin to ensure that your antidiscrimination policy gets off to a good start is to focus on a few key HR procedures that will help you align the organizational culture with your environment:
- Recruitment should be based entirely on the skills and abilities needed to do the job.
- Selection should be based on merit. Concentrate on objective evaluation of skills, abilities, or potential. Look for evidence of positive attitudes toward diversity in the workplace. If possible, publish your selection criteria and make every effort to stay within them.
- Promotion should be based on the ability, or demonstrated potential, to do the job, and on behaviors defined as appropriate in your discrimination management policy.
- Training and development opportunities should be offered to all employees, and they should be encouraged—or in the case of antidiscrimination policies, required—to take advantage of them.
- Downsizing decisions should be based on objective, communicated, job-related criteria to ensure that the skills the business needs are retained.
- Retirement programs should be fairly applied, taking individual and business needs into account.
There are many resources to draw upon for help in establishing and implementing antidiscrimination policies and procedures. They include:
- the U.S. Department of Labor's Equal Employment Opportunity Commission, a valuable resource for federal law on discrimination issues with field offices throughout the United States. It also offers free information programs and fee-based education;
- your state government agency responsible for overseeing federal laws, a practical place to begin your research;
- management and HR consultants, available for a fee to assist you in setting up the framework for your policy and procedures.
It may also be advisable to have an expert audit the organization's practices.
Your efforts in implementing discrimination management policies and procedures will directly benefit your organization. Recent studies in Europe, the United States, and Australia have shown that taking measures to combat discrimination can positively affect a company's bottom line. Bringing managers and employees together to discuss discrimination issues shows care and respect. By encouraging discussion you show a willingness to incorporate good suggestions into your company's policy and procedures and, as a result, build considerable allegiance among your employees. Employees in the companies studied reported, for example, that:
- the company atmosphere has become more positive and respectful;
- they now feel free to discuss sensitive subjects that had formerly been taboo;
- teamwork has improved significantly;
- they have found ways in which they, as individuals, can help to combat discrimination.
The study found, on the other hand, that companies paying little or no attention to discrimination issues had:
- high absenteeism and turnover among employees who considered themselves victims of discrimination or harassment;
- lower productivity and quality;
- lower morale;
- higher error and inefficiency rates;
- greater loss of reputation among customers;
- increased accident rates, and a larger number of compensation claims;
- more mistakes in making appointments to key positions.
It is a too late, after you have already been sued by one or more of your employees for discrimination, to think about a policy and procedures for managing discrimination. Complacency and a lack of preparation—thinking that it cannot happen to you—is one of the most common mistakes that employers make. The damage to your finances, profitability and reputation, when it does happen, can be devastating.
The international surveys mentioned above found that almost half of employees in some sectors thought they had been discriminated against or harassed. Their employers were clearly unaware of any incidents. Even allowing for oversensitivity on the part of some of these people, it adds up to a large number of potential lawsuits and a lot of expense, especially if you have to pay a large settlement.
Some types of behavior, for example, behavior that once may have been excused as "friendly" behavior or "harmless" joking, are illegal and can no longer be tolerated in the workplace. Taking no action at the first hint of a problem, and thus allowing it to escalate can have the same consequences as being complacent. Employers must not overlook or play down inappropriate behavior, not even if it is perpetrated by a very skilled and experienced staff member whom you think you cannot afford to lose. The truth is you cannot afford to keep the offending employee.
Cross, Elsie Y.
Repa, Barbara Kate.
U.S. Department of Labor: www.dol.gov
U.S. Equal Employment Opportunity Commission: www.eeoc.gov