HR Tech’s Adverse Problem

While I totally loitered at the Society for Industrial and Organizational Psychology Conference (I was a presenter, just failed to register – oops), I’d thought a post on what we talked about yesterday and a bit about what’s happening at the University of Minnesota’s HR Tomorrow Conference today: adverse impact, why it’s important, and why you should care.

Adverse impact (known as “disparate impact” by the lawyers) is when groups of individuals described by a particular characteristic is negatively affected by an employer’s decision, selection tool, or policy when that decision, tool, or policy is neutral on its face or does not intend to actually have a negative impact.  For example, if an employer uses a psychological test that filters out African Americans, the test would have an adverse/disparate impact on African Americans.

The concept of disparate impact has been around for a long time.  The United States Supreme Court in Griggs v. Duke Power formally recognized the claim.  Since that time, the law has been debating many aspects of the claim, including what statistical models to use, does the doctrine apply if the rule intends to discriminate, how does impact different from treatment, and will the doctrine apply to all the HR technology out there.  While this post could go on-and-on about all of these questions, this last piece is really important for HR tech buyers, and the answer is probably.

We already know that lots of HR technology vendors, including the fancy-dancy stuff like artificial intelligence, machine learning, algorithms, etc., market their products as the only way to find the best candidates, identify problem employees, and make all your dreams come true.  When these technologies are used, their use could create a disparate impact.  How do we know?  Because we’ve already seen how these technologies discriminate outside the world of HR – see photo ID that classifies African Americans as gorillas, recidivism tools that increase prison terms for African Americans, etc., so it is highly likely that they could operate the same way when it comes to HR tech.  Arguably, HR tech has the potential to greatly impact because the decisions HR makes affect individual’s livelihood.

So what should we do about diverse impact?  While there are many, many things we need to do to limit the potential that the HR tech we use doesn’t discriminate, we should start with two things.  First, we have to know how the technology works and the data it uses to make recommendations.  This requires vendors to be open and honest with us, lose the marketing gloss, and really explain their products. Can they explain how the tech works?  Can they explain how the tech works on our organization’s data?  Could the data have bias baked in?  (The answer to this last one is probably yes, especially if we’re looking at hiring or performance data.  There’s just no escaping it.)  When vendors are transparent and honest about these issues, we can take more steps to mitigate any disparate impact the tech might have.

Second, we need to test and test and test to see if the tech creates the disparate impact.  Lawyers and data scientists talk about validation as the test.  For lawyers, validation means under the Uniform Guidelines for Employee Selection Procedures.  For data scientists, validation means how strong the correlations are statistically.  This definitional problem causes more debate and potential confusion.  So, we need to find vendors who understand, appreciate, and can articulate validation under both tests.  Because the HR tech world is a bit like the wild, wild west, it’s hard to find them. (Trust me, they’re out there.  I’ve probably met them or at least brow-beat them from a distance on this very issue.)

All that said, I want HR to understand and appreciate that these issues could exist and start playing an active part in fixing these issues.  While I’d love for everyone to trust each other, placing blind faith in a vendor is not in our organizations’ best interest.  Holding people accountable is one of the strengths in HR.  We should use it here too.

One final note, I love this stuff.  This tech is going to revolutionize how we do business.  I just want to do it in such a way that doesn’t create that much risk for our businesses.  Remember my pledge?

 

Photo by Patrick Lindenberg on Unsplash

Happy Equal Pay Day?

Today is Equal Pay Day.  According to Institute for Women’s Policy Research, white women make only 80.5 cents for every dollar men make.  The wages are even lower for Black and Hispanic women.  (Hispanic women will have to work an additional 232 years for pay parity!)  We all know that something has to be done about it.  So how is the wage gap going to change?

Salary History Bans.  According to HRDive, seven states and six localities have prohibited employers from asking candidates about their current or previous salary histories.  The theory supporting the bans is that if an employer sets an employee’s wage based upon what she previously made, the new employer may be perpetuating the wage gap.  If an employer can’t ask the previous salary history, then the employer will be setting the wage on either the market rate for the position or based upon what the employee desires – a question that is not prohibited.

For reasons that remain a mystery, some are vehemently opposed to salary history bans.  Michigan passed a law prohibiting any localities from enacting salary history bans while others have initiated a lawsuit to prohibit the law from going into effect.  Their arguments for asking the question and as such against the bans are stopping title inflation, salary histories actual verify previous performance, or we already have laws that prohibit wage disparity.  However, we still have significant wage disparity.  So if we can’t ask one question, will our entire recruiting process fall?  (Spoiler:  No.)

Yes, there are detractors to salary history bans.  They argue that salary history bans will hurt women in the long-run given our poor salary negotiation skills.  However, if we set salaries based on the market and our own payroll, then the job pays what it pays.  No negotiation necessary.  Try the Ellen Pao method.

Reinterpret Existing Law.  Yesterday – one day before Equal Pay Day – the Ninth Circuit Court of Appeals held that a candidate’s previous salary cannot be a defense to an Equal Pay Act claim.  Specifically, Judge Stephen Reinhardt (in what may be his last opinion) wrote, “To hold otherwise—to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum—would be contrary to the text and history of the Equal Pay Act.”  This decision is a big deal for a couple of reasons:  (1) an employee’s previous salary could have been used as a defense to a wage gap previously – this decision stops that, (2) the decision bolsters salary history bans, and (3) the decision limits employer discretion in determining pay to only job-related criteria for determining pay.  This alters the law in a way that may reduce the wage gap.

Market Rule.  I, like many others, encourage employers to use market rates.  This means that employers have to invest and participate in salary surveys.  That said, the benefit of paying the market rate without regard to what a candidate used to make levels the playing field for employers and candidates.  Employers can feel confident that they are going to find candidates and differentiate themselves from their competition based on workplace culture.  Candidates can differentiate between employers without regard to pay.  They can find the workplace that fits them best.

When it comes to the wage gap and Equal Pay Day is that we have to do better.  Use market rates, don’t ask salary history questions (on applications or in interviews), review your payroll to determine if gaps exist, and work with your friendly neighborhood employment attorney to help do the right thing.

If you’d like more information or to read some opinion on Equal Pay Day, check out Lilly Ledbetter’s take.

Photo by Sharon McCutcheon on Unsplash

Let Go of Welcomeness

In the legal world, welcomeness has been an element of a sexual harassment claim since Meritor Savings Bank v. Vinson – the first U.S. Supreme Court case to recognize sexual harassment under Title VII.  Did the alleged victim welcome the breast grab?  Did she engage in the sexual banter herself?  Did he want his “junk tapped” by coworkers?  If a claim is going to be successful, this analysis is a must.

Yet, this legal standard doesn’t capture the reality of workplace harassment.  It ignores several factors that are at play that could suggest the conduct is welcome when it is most definitely not.  Let me try to convince you that we need to focus on the conduct or comments of harassment and not whether that same conduct is welcome.

People say, “it’s okay” to make the encounter end quickly.

When something bad happens, we often say, “it’s okay” because we want a couple of things: (1) we don’t want to really talk about how we’re feeling, and (2) we want to get out of this situation.  This happens with sexual harassment too.  If someone grabs a butt or a breast – especially if that person is a co-worker or god forbid a manager – we want to get out of this situation fast.  Like super duper fast.  If we actually talk about how this feels or if we challenge a person who has input on our career (including co-workers), we might feel that we’re going to make the situation worse.  So, we say, “it’s okay,” “don’t worry about it” or even shrug it off.  These words or shrug are not words of consent but are words of resignation.  We’re resigned that this happened, and we want to move on.

People do this all the time.  We don’t always confront our racist uncle at Thanksgiving dinner or our pastor after a particularly homophobic sermon.  We don’t because we don’t want to cause trouble.  So, why do we make harassment targets do the same thing to prove that they actually were harassed?  (If I had a dime for every harassment policy that says you must tell the harasser to stop as the first step…)

For HR and harassment investigators, the “it’s okay” is a challenge.  For those focused on whether the conduct was welcome, this is the silver bullet.  She said, “it’s okay” so it must be.  It was welcome.  Nothing to see here.  No harassment.  This is the problem. Reminder: Employers have an obligation to keep harassment out of the workplace. Employees have no obligation to report under the law.

Even when sexual conduct is welcome, it’s unwelcome to somebody.

In harassment trainings, I go through a bunch of scenarios.  One of my favorite rapid-fire scenarios is this:

Colin has been head’s down on a project for weeks.  The project is finally over, and he accompanies the team to happy hour to celebrate.  He’s so happy to be done with the project, he kisses Judy.  Is this harassment?

Without fail, within five seconds of reading this scenario, some jokester yells out “what if Judy is his wife?”  I give him (always a him), a look that screams “listen, buster” and calmly say, “Do you work with your wife?”  (Hushed giggles throughout the crowd.)  If Judy was Colin’s wife, arguably he does not engage in sexual harassment as the law would view it.  If Judy is his wife and they begin a rigorous game of tonsil hockey, then the team around them turn their heads away, get up to go to the bathroom, and/or otherwise consider calling it a night.  If this happens, there is an arguable case for sexual harassment since the team clearly did not want to watch the competitive sport of kissing as played by their coworkers.

Here’s another rapid-fire example:

Peter and Juliet joke around all the time.  The jokes have turned flirty with both commenting on each other’s bums.  Is this harassment?

Depending on the industry I’m training, a varying degree of uncomfortableness spreads throughout the crowd.  They suspect the answer is yes, and some will admit they may have done this but they’re not sure if this is “illegal.”  I explain that I’ve helped an organization in a very similar circumstance where the banter was consensual, but the person next to them had to hear it day in and day out.  Eventually, he complained to his boss who then promptly fired him.  While the underlying sexual harassment claim might not have been actionable, the retaliation that resulted was clear.  The lesson here for employees – don’t engage in sexual banter even when you and the other person wants to.

Even when sexual conduct is welcome, it doesn’t always stay welcome.

News flash:  Romantic relationships fail at an alarming rate.  Consider all the relationships that an individual has to go through before marriage.  Then consider that half of marriages fail.  That’s a lot of failed relationships.  In the workplace, relationships fail a lot too.  When a welcome, romantic relationship fails the potential for harassment or retaliation to occur is high.  Scorned lovers – male or female – exist and wreak havoc.  They can seek to rekindle their love with unwanted words, gestures, and touching – all potential conduct in violation of an employer’s sexual harassment policy.

Let’s let go of welcomeness.

When we get a complaint of harassment, we need to look at the conduct or comments that led to the complaint.  It shouldn’t matter whether the conduct was invited or even wanted.  What should matter is that we don’t want our employees, clients, customers, vendors, etc. to watch a rigorous game of tonsil hockey, a butt grab, or hear a particularly randy joke.  We shouldn’t tolerate it in our workplaces regardless of whether it was the married couple in cubes four and ten or the supervisor to her employee in the breakroom.  It’s the conduct that is the problem, not whether it was welcome conduct.

Photo by Sweet Ice Cream Photography on Unsplash

Some of Us Hear You

It’s February, Black History Month, and the return of #BlackBlogsMatter.  I love this time of the year – not only because we champion the contributions of African Americans, but because this is a great opportunity for some of us to challenge our thinking, our perspectives, and quite frankly, our privilege.

This is hard.  Many people believe that our country gives everyone the chance to succeed.  The point to the “self-made” folk like Oprah, Jay-Z, or Robert Johnson as people who have made it.  However, when we point to these wildly successful people, we are also suggesting that those who haven’t made it just haven’t worked hard enough.  This is a problem – maybe even the problem with pushing the “pull yourself up from the bootstraps” American narrative.  Our society and our workplaces have been built on this narrative with built-in advantages for white people (particularly white men).

Here are some ways we may be perpetuating the privilege:

  • We recruit from our networks, begging our current employees to mine their LinkedIn and Facebook networks to find our next great hire. However, there’s overwhelming evidence that we flock to people who look like us, creating networks without a great deal of diversity.
  • We recruit from educational institutions we or one of our friends graduated from. While some have made great strides, white folk still take up a greater percentage of college graduates.
  • Unconscious bias affects our hiring and promotions. We have started doing blind hiring, which can help, but we cannot hold this technique as the end-all, be-all that solves the problem.
  • We avoid having discussions of race. While our avoidance makes for a great SNL skit, our avoidance only allows the problem to continue to fester.

We have to be more proactive, more intentional with how we build workplaces that accurately reflect the world around us with the diversity of race, age, religion, gender, thought, etc.  If we don’t, we’re missing out.  Missing out on better decision-making, better business, and a better place for everyone.  This means taking a hard look at our current practices, having hard discussions, and confronting the problems whether we intentionally created them or not.  We can’t simply watch the documentaries, revise policies, or give lip service to our desire to build more inclusive workplaces.  We actually have to self-reflect as organizations and individuals even though the guilt seizes us with paralysis.

I don’t pretend to have all the answers here.  I do know that the best way to start is by listening to those voices we haven’t been very good about listening to and then lending our voices to help.  In a recent blog post, Jazmine Wilkes (a member of the #HRTribe) lamented the lack of white voices speaking up to combat the ongoing prejudice and injustice facing so many.  To Jazmine, Sarah, Keirsten, Tamara, Janine, Rachel, and all the folks writing this month for #BlackBlogsMatter, I hear you and here’s my voice.

 

Photo by Nicholas Kampouris on Unsplash

Overreacting

James Damore is suing Google, alleging the tech giant “systematically discriminates” against conservative white men.  While being both conservative (i.e. political affiliation) and male are protected class statuses in California, it’s not clear to me that Mr. Damore’s case has much merit.  (For Pete’s sake, he claimed women are not biologically capable of being good software engineers.)  Yet, it is a great example of an overreaction and an attempt to halt diversity initiatives nationwide.

Mr. Damore’s lawsuit was predictable.  He told us he was going to bring one.  It is also typical.  Affirmative action programs at colleges were attacked when white applicants were not getting in at the same rate as before.  A Christian sued Ford and its affiliates when the car manufacturer came out in support of gay marriage.  These kinds of lawsuits attempt to scare organizations into worrying that their diversity initiatives may swing too far, launching them head-first into litigation.  They may be effective on occasion, but as a scare tactic, it may be just as effective.

What should HR do? We should follow some of the same advice we’ve been bandying about for decades:

  • Dip into all sorts of candidate pools
  • Seek out affinity groups at colleges and universities
  • Think of churches/temples/mosques as places of worship and potential sources of candidates
  • Post job announcements EVERYWHERE
  • Offer training (maybe even English) to high-potential employees
  • Treat your employees with care
  • Draft policies with care to not affect a particular group
  • Validate selection programs for disparate impact
  • Seek out the opinions of employees of all shapes and sizes, genders, races, religions
  • Accommodate employees without putting up theoretical barriers
  • Acknowledge differences in the workplace and celebrate them
  • Listen

(Please note, this is not an exhaustive list.)  None of these tactics or strategies are discriminatory.  Only hiring women can be.  Setting specific quotas can be.  Only offering benefits for referring minorities or women can be.  We have to be careful and mindful that whenever we use a protected class status as a basis for hiring, we get closer to violating the law even when our intentions are good, moral, and just.

In response to the sexual harassment revelations, the Time’s Up Now group, 50/50 by 2020, pledges to get to 50 percent representation of women in Hollywood by 2020.  There’s a James Damore in Hollywood too.  While I don’t doubt that plenty of women are qualified or over-qualified for positions in Hollywood, the Hollywood version of James Damore is planning his attack.

Photo by Scott Webb on Unsplash

All Over The Place

In the past few weeks, I’ve been all over the place talking compliance, sexual harassment, technology, holiday parties, and what’s coming for 2018.  Here are a few:

  • The New York Times. The New York Times.  A week or so ago, Noam Scheiber of The New York Times reached out to ask about the role of HR in sexual harassment reports.  The premise of the article is that HR can be ineffectual.  That’s a fair critique given the current climate, but there are some reasons for that.  Please read the whole thing.  Then, let’s brainstorm on how we can change this situation.
  • I talk about holiday parties and greetings with Marc Alifanz and Dennis Westlind on their podcast, Hostile Work Environment. This is a thoughtful and hilarious podcast for any HR practitioner and/or employment attorney.  Marc and Dennis hash out some fascinating cases and noodle through some tricky legal analysis.  The podcast is available on iTunes and wherever you non-Apple cult members can find podcasts. Subscribe.  You won’t be disappointed.
  • Social media has a role to play in harassment claims, and with #MeToo, it can be an avenue to report it whether employers like it or not. Here’s an SHRM article making this point and stressing how employers should be aware and ready to deal with social media reports.
  • In addition to the holidays, we’re well into the “what’s coming for 2018” season. Ultimate Software included me in their webcast on Employment Law 2018:  What You Need to Know Now.  We covered everything from salary history questions, overtime, minimum wages, diversity, social media, and more.  It’s only an hour, and feel free to disagree with my not-so-scientific predictions for the coming year.  Over 1800 people signed up for the podcast, so don’t be left out!
  • One of my favorite HR blogs is HRBartender. Sharlyn Lauby provides great hands-on advice on a full range of HR topics.  Sharlyn kindly included me on a reader question about bullying and the concern about what happens when this issue gets to HR.  Take a look and let me know if what I wrote is how you would handle the situation.

It is really quite an honor to be included in these publications, the podcast, and with these organizations.  Thank you to them and their readers, viewers, and listeners!  I’m one heckuva lucky lady.

Please do not hesitate to reach out if you have any comments, questions, or want to chat further.