Getting Harassment Training Right

Over the last year, I’ve done hundreds of respectful workplace (a/k/a harassment) trainings.  I love this training.  It is my favorite.  This is training is so vital to every organization that I will move vacations to do it.  Seriously.

I speak publicly on harassment training.  Just this year, I’ve done a DisruptHR talk, the North Dakota’s Workforce Development Conference, Minnesota SHRM, and soon the Minnesota Association of Legal Administrators conference on this topic.

I’ve even written a lot on harassment training.  (See here and here for training specifically, and here and here for more general training references.)  The writing has helped me focus my own trainings, making them better for my clients.

After this year (and the years before that), I’ve come up with my own philosophy on harassment training – what makes it good, what can we do better, what should employers consider, etc.  Ultimate Software has been kind enough to include my diatribe on the subject in their collection of white papers.  You can find it here.   Please, if you’re considering putting harassment training on your list of to-dos for 2019, read it.

What Do We Owe Each Other?

While I have been safely ensconced in #SHRM18, I haven’t been able to read the news as much as I’d like.  When I finally looked at my twitter feed devoted to news, I became angry, sad, frustrated, and a whole other host of emotions.  So as midnight approaches, here are some things I hope all of my HR friends take from this fantabulous conference to put into their worlds:

Compassion.  Oscar Munoz explained why caring comes immediately after safety at United.  Caring means holding a door open for a family who just landed a half a terminal away and who are running to catch the plane to see a sick grandma.  While a policy may say one thing, caring about the people we serve (and for those of us in HR, that includes our employees and candidates) sometimes says something different.  If our employees are empowered with compassion, they will do the right thing for our customers, clients, and the greater world.

Compassion.  While he may not have said it in quite this way, Tim Sackett talked about how CEOs want to be able to personalize our HR plans because our people are individuals who want personalization.  Personalization means we have to know, acknowledge, and understand the needs of candidates and employees.  We can’t personalize unless we are compassionate with the people we help every day.

Compassion.  In discussing inclusion, Joe Gerstandt asked us to imagine a world where employees have space to be themselves, we ask and they speak about the personal parts of their life so they don’t feel they have to hide parts of themselves.  “How are you really?”  “How is your mom?  Is she feeling better?”  Adding circle tables to a break room so people can interact.  Integrating our values into conversations about our objectives, especially when we are struggling with an issue.  We want our employees to be innovative problem-solvers, and we can do that by being compassionate with them.

Compassion.  I was unable to attend Adam Grant’s presentation.  But from what I saw on the twitters, it was amazing.  One thing he challenged me on is ending exit interviews.  The argument (via him and some super HR pros) is that we should have known about the problems before the employee leaves.  This is absolutely true.  We should have known.  When an employee is so afraid to talk to us while still working for us, we have lost.  Lost big time.  We need employees to want to talk with us, to want to share the good stuff and the bad stuff.  This takes trust.  We can foster trust by being compassionate with our folks.  Knowing their names, their struggles, their successes.  When they see that we are interested and invested in their well-being, they will come to us with their concerns.

So, what do we owe each other?  Do we owe each person around us respect?  Hells to the yeah.  Do we owe each other attention when a problem crops up or a success is achieved?  Yes.  Do we owe someone time when he is asking for help in dealing with FMLA paperwork because his wife is ill?  Yes.  All of this takes compassion.  When we see people suffering, do we owe them help?  Yes.  It breaks my heart to see people suffering.  I hope that is true for everyone in HR.  We owe ourselves, our employees, and the people around us compassion.

I’m going to try to remain hopeful and do better myself.

Photo by Matheus Ferrero on Unsplash

Harassment & Being the Boss

In response to the #MeToo and #TimesUp movements, state legislatures and localities are taking action, including requiring sexual harassment training and policies that explain where employees can turn if they don’t believe their employer has handled the situation appropriately.  New York’s new law requires that policies explain that employees will be disciplined for engaging in harassment and – perhaps most importantly – managers will be disciplined when they allow harassment to happen.

Did you read that?  Managers will be disciplined for letting harassment continue. This is where NBC, CBS, and nearly every employer who makes the news has allegedly failed – a manager knew about the behavior and didn’t make it stop.  This, ladies and gentlemen, is why manager training is critical to the end of harassment.

The law focuses on managers because managers are the employer.  They make crucial decisions, like hiring and firing.  They sign contracts.  Often, the buck stops with them even if they are in the dreaded middle management.  This means managers are responsible to take action when they get wind of harassment, but often, managers don’t understand the crucial role they play in preventing and stopping harassment.  As legislative bodies take more and more action, here are some of the lessons you can incorporate into your training now:

Managers must know the work environment they create and manage.  For a manager, the word “manage” is in her title.  So, she must actually manage.  Merriam-Webster defines the verb “manage” as “to direct or carry on business or affairs.”  No one can effectively do this if she doesn’t know what is going on or doesn’t understand how her people interact.  So, dear manager, know your people.  Also, set a tone of respect with your people.  Be the example.  (You can have bad days – pobody’s nerfect – but when you make a mistake, acknowledge it and move forward.)  While the “doing” might be more fun, the “managing” is your job.  When you know the work environment, you can take steps to prevent harassment.

Managers have the power to do something.  A manager can’t throw her hands up when she learns about possible harassment.  Harassment requires her to dig in, tackle the problem, and sometimes, make some really difficult decisions.  Organizations may differ on what exactly they want the manager to do – report to HR, step in and separate the people, suspend the alleged harasser, discipline, etc. – so train the manager on what to do and who to talk to when she needs help.  (Remember, managers need to know enough.)  In manager training, go through scenarios, talk through what the organization would want the managers to do.  This will invite participation, just the kind of interactive dialogue the EEOC and state agencies want in harassment training.

There is no such thing as an official complaint.  A whiff, a rumor, seeing someone uncomfortable or crying, a conversation between a manager and an employee that’s “just between us” all trigger action by an employer.  In order to have a defense to harassment claim, an employer must take “timely and appropriate action” when it learns of harassment, so if a manager learns of harassment, she puts the employer on the hook to take action.  Waiting for an “official” complaint is not only poor management, it creates liability for an employer.  No manager wants to do that.

You will get in trouble for harassing too.  Because the law treats managers as the employer, when a manager engages in harassment, the employer can automatically be liable for the harassment.  Managers have to understand this.

Harassment hasn’t always been clear, and the courts haven’t helped much.  That said, we have an ethical obligation to help employees and managers understand it and how we define respect in our workplaces.  The difference between “You look nice today” and “That dress hugs you in all the right ways” is respect.  One statement is a respectful compliment.  The other can be characterized as harassment.  Will your managers step in when they hear the dress one?  Will they know what to do?  Your managers absolutely need to know what to do at the moment the statement is made or when an employee tells what happened.  So, train them.  Please.

 

Photo by Brooke Lark on Unsplash

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