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?

 

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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.

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What’s the Problem with Training?

Who here provides sexual harassment training for managers and employees?  Who here thinks their training prevents sexual harassment in their workplace?  Who here is confident that their managers know what to do to prevent harassment?  Who here is confident that sexual harassment could never happen in your workplace because you have a policy and you’ve trained?

Let’s be honest.  No one is confident that your workplace is 100% harassment-free simply because you have a policy and have provided training.  (Heck, if that’s how training and policies worked, we’d never have poor performance or discipline issues.)  We know that harassment can happen in spite of our policies and trainings.  We even read articles that suggest harassment training can have a negative effect the workplace.  So, should we stop training?  No.  Absolutely not.

Don’t lose hope in training.  Lose hope in bad training.  Here’s what makes training good:

It’s live. A live training invites conversation.  Conversation invites questions.  We want people to ask us questions.  It is a rare video that actually sparks conversation afterward, so if you are going to video, make sure you check in with folks after they’ve watched it or that the video includes a live (studio) audience.

It’s couched in respect. We know that harassment has a lot to do with power dynamics in the workplace and/or a lack of respect.  The training should reflect that.  I joke that harassment violates a lot of the rules we learned in Kindergarten – keep your hands to yourself, treat each other nicely, say sorry – and to a large extent that’s true.  If we treated everyone with respect, harassment wouldn’t be a problem.  Spend some time talking about respect and what that means for your workplace.  Hint:  This is the civility piece the EEOC wants.

It’s customized to the workplace. Managers and employees need to see themselves in the scenarios posed by the training.  It is important that the training be relatable enough that it makes people feel uncomfortable.  We learn in the uncomfortable.  A manufacturing facility needs a factory line example.  Software companies need software development examples.  A bank needs banking examples.  A retail establishment has an employee-customer example.  I can’t stress enough how important this is.  For hospitality clients, I’m using this video.

We play a game from my favorite podcast where the audience or I can stop the video at any point and talk about what we saw.  This video is so great because it has a gradual increase in severity until the big incident.  It sparks a lot of conversation – great conversation.

The trainer asks questions. What would you do if you saw this?  Would you step in?  Do you have to?  What does the company want you to do?  What if this happened to you?  These are the kinds of bystander questions that the EEOC wants to see in harassment training.  Even if the audience is hesitant to raise their hands, they are answering in their heads and waiting to see what someone else might say.  I’m happy with answering in your head because you’re answering.  If the audience can see themselves in the scenario and are asked what they would do, they’ll remember that feeling when they’re actually in a situation.

Acknowledge the fear. There is a lot of fear about harassment.  Men are afraid to compliment a female co-worker on her dress.  Companies are banning hugging.  A good trainer will tackle this fear head-on, explaining there’s a difference between “you look nice today” and “hey baby, that dress hugs you in all the right ways.”  Spending time talking about the fear and how to handle it can make people feel more comfortable with their own conduct and be more willing to talk to each other.

Folks learn who to talk to. We don’t need the audience to remember the ins and outs of harassment law – we only need them to remember what is problematic and who to talk to.  They need to know that HR is here to listen to them and if they’re uncomfortable with reporting the situation to HR, they can talk to any manager.  So, HR (and a member of upper management) should be there so the trainer can point to them.  “These are the people who will drop everything if you walk into their office with a concern about harassment.”  Employees and managers need to know they are not alone with this, and the organization really, really wants to hear from them.

Training cannot be the only thing an organization does to prevent harassment.  It takes a culture where employees trust managers and feel comfortable talking about these issues without fear of losing their jobs.  That takes much more than training.  But, training is an important piece of this.

I am doing a great deal of harassment training these days in response to #MeToo and #TimesUp.  While I wish these movements did not have to exist, I’m happy organizations are spending the time and resources to do the training.  Consider it for yours.

 

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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.

 

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Why Help An Employee?

I’m a management-side employment law attorney.  I get to work with human resources. In fact, I am an HR professional.  So, why on God’s green Earth would I, as an attorney, help an employee?

HR has been taking a huge hit lately.  The #MeToo movement and the countless stories of rampant sexual harassment are now (thankfully) part of the national conversation.  The reoccurring theme has been “Where was HR?” or “Why didn’t HR do something?”  While that criticism in some circumstances may be fair, HR is a bit like the CIA.  We only hear about the bad things HR does (or doesn’t do), and we rarely hear about all the good HR pros out there who have steeled themselves and done what is right.  I’m lucky to know many of them.

When an HR pro doesn’t do the right thing – especially when they are given the chance repeatedly – there comes a time when the friendly neighborhood employment attorney has to challenge that particular HR department.  I do this because we need good HR.  When bad HR hurts one of us, it hurts all of us.  So, it is up to us to take us on, to speak up and help those employees who have done everything in their power, given their employers every opportunity to do the right thing and yet have had the door to HR (and management) closed to them.

I’m lucky to currently represent an employee.  You can hear her story here.  It may be a fair criticism that as a management-side attorney, I shouldn’t represent her.  To me, I should.  Because if I’m going to help HR do better, sometimes that means I have to take us on when we’ve done wrong.

 

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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.

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