The Law is the Basement

My house was built in the late 1890s.  It still has a dark closet that once functioned as a root cellar.  It’s now full of odd, rarely used cooking equipment, Christmas ornaments, and creepy cobwebs.  We now call it the punishment room as a threat designed to spur good behavior in my guys.  No one wants to be in there, but technically, it is a functional closet.

The law is often like that room.  It tells us the minimum of what is expected of us – what is the basement of how we can treat each other.  It’s functional but undesirable.  Just like my guys, no one wants to be in the basement.

But sometimes, the law isn’t even the basement.  It’s lower.  Much lower.  Never has that been clearer than today.  Today, the Supreme Court is hearing arguments in three cases involving whether “because of sex” protects individuals based on their LGBTQ status.  If the Court finds Title VII doesn’t protect the LGBTQ community, employers in 28 states will be able to fire someone because of who they are and who they love.  What’s really scary is that here is a real possibility the Supreme Court will find that the LGBTQ community is not protected.

What will this mean for employers?  I hope nothing.  I hope employers understand how stupid (yes, I wrote “stupid”) it is to discriminate on this basis.  Not only is it unlawful in many states – including Minnesota – it is bad for business.  At least one prominent study showed how LGBTQ-supportive policies were great for employees and business alike.  Being inclusive is the right thing to do.  Period.

The U.S. House of Representatives has passed the Equality Act that would protect the LGBTQ community regardless of how the Supreme Court finds.  But, Senate Majority Leader Mitch McConnell refuses to allow a vote on the bill.  It’s likely the bill would pass if it reached the Senate floor.  In the meantime, the message to employers is that Congress doesn’t care if you discriminate.

But you don’t have to.  Employers don’t have to do the minimum.  You can keep employees out of the basement.  We should treat each other fairly and kindly regardless of LGBTQ status.  Here’s hoping the Supreme Court does the right thing, and the Senate does too.

In the meantime, no one can define your worth.  You’re all worthy.  Sending love and hope to everyone today.

 

Photo by isaac jarnagin on Unsplash

Being Human

This week, I had the enormous privilege of attending #workhuman.  If you’ve never heard of Workhuman, where have you been?  Remove yourself from under that comfy rock, and let me share all my learnin’, y’all.  (Workhuman was in Nashville this year, and now, my drawl game is strong.)

Workhuman, formerly Globoforce, is a social recognition and continuous performance management platform that can integrate with lots of different HCMs to improve how your people see and interact with each other.   Workhuman does a ton of research on the impact of social recognition on inclusion, gender, race, wellness, and performance issues that will make your jaw drop.  They’ve come up with ways to inform, but not criticize, how we use language from a gendered and racial perspective when giving recognition or feedback based on the data they have collected from millions of interactions.  It is this research informs how they do business.  They’ve learned that being human makes workplaces better.

#workhuman is their signature conference, bringing together thousands of concerned humans for the sole purpose of trying to figure out how to make the workplace more human.  The conference is all about how do we see, treat, encourage, develop, recognize, thank, and love – yes, I said love, but not in the romantic sense – the people we work with so we can all do better.  This is more than just an HR conference, it is a business conference.

Here are a few of my takeaways:

We have to revel in being uncomfortable.  Whether it was Brene Brown, Kat Cole, Candi Castleberry Singleton, David Lapin, or any of the other speakers, this was a powerful take away.  As a society, we are at a tipping point.  Our workplaces are also at this tipping point.  We can’t simply put our heads down, our safety googles on, and focus on productivity goals if we’re going to be successful.  If we’re going to have people in our workplaces, we need to accept and welcome them as they are.  We’re going to have to talk to them about the heavy society concerns from gun safety, policy brutality, offensive tweets, gender and racial inequality, and the fear that prevents us from being our whole selves.  Allianz does this, Kat Cole does this, we should all do this.

Recognition makes a difference.  Data is the best.  Data that shows we can make a dent in the problems that plague our workplaces is even better.  The data Workhuman shared on how recognition can improve our connections at work, our engagement at work, and help plug the holes in our leaky buckets is so impressive.  I want to know more.  Luckily, there’s a resource page devoted to this!

Pobody’s nerfect, but we can all be resilient.  If we’re going to have difficult, uncomfortable conversations at work, we’re going to make mistakes.  We’re going to hear antiquated language that is now offensive.  We will have to tackle our fear with a battering ram.  We’re going to have to be brave and vulnerable.  We’re going to have to rely on our integrity, strength, and humanity to deal with the mistakes, use them as teachable moments, and move on.  I’m not saying that every mistake is just a mistake – some mistakes warrant termination – but as we encourage these conversations, forgiveness and resilience will be powerful to keep us moving forward.

Being human is hard.  As a crier, I was moved to tears a couple of times – not gonna lie.  It is hard to be vulnerable, willing to fail, learning from our mistakes, and sharing our failures so others can learn from them too.  No one promised this life, in general or in business, was going to be easy.  So, grab your friends, family, co-workers, and meet these obstacles head on.

I cannot oversell #workhuman.  Every attendee self-reflects, does some mental gymnastics, and learned from this conference.  Next year, Workhuman is in Denver.  I hope to be there.  I hope you all are too.

 

Photo by mauro mora on Unsplash

Man-Bashing Training

Question:  Do we vilify men in harassment training?   

Think about that for a moment.  Do we use more man-on-woman examples?  (Probably.)  Do we need to change this?  Yes.  Harassment training is for everybody because everybody could harass.  According to a recent poll, one in seven men has experienced harassment at work. So, we can’t ignore men and their experiences just because so many women have similar experiences.

It is possible (and maybe even likely) that we’ve created an environment surrounding harassment training that we’ve alienated men or have come across as attacking them.  If this is the case, we should be criticized.  And, we should do better.  Here’s how I think we can do this:

Know our audience.  Every training should be customized to the workplace.  If the scenarios don’t feel real, the training won’t have an impact.  Because we have men in our workplaces, we can’t exclude their experience (and fear) from our training.  We should address it, and give a workable framework on what we expect from them.

Start with respect.  Often in trainings, I hear the statement, “I can’t even compliment a woman anymore.”  This comment comes from a man, usually over 40, who is sitting with his arms crossed, angry that he even needs to be in the room.  I turn to him and say, “There’s a difference between ‘That dress is very nice on you’ and ‘That dress hugs you in all the right ways.’”  He nods, and if I’m lucky, he chuckles a bit.  I then say, “We’re here to talk about that difference.”  That difference is respect.

For all of you labor lawyers cringing at this, listen up!  We live in a society where respect is under a near constant barrage.  We can’t operate in workplaces where respect and integrity aren’t at the core of what we are.  Without respect, we don’t get innovation.  So, we should make respect the cornerstone of our training. Our employees want respect.  They expect and deserve respect.  Starting our training talking about respect is what we must do.  If every conversation was respectful, we wouldn’t have harassment.

Have diverse examples.  Women-on-women harassment happens.  Men-on-men harassment happens.  So, we should have diverse examples.  Some of my best examples – examples that result in the most discussion – are man-on-man and woman-on-man.  We want to have a discussion and a bit of uncomfortableness.  Because we learn when we experience and are at least a bit uncomfortable, the discussion has any chance to really make a difference.

Use the whole scale of harassment.  Include examples of calling someone “sweetheart” or “man candy.”  Talk about staring, dirty jokes, and racial epithets.  You can talk about kissing, hugging, and even assault too, but ignoring the subtle stuff ignores where most harassment starts.  We don’t want this.

Ask, “what would you do?”  We should put our employees in the uncomfortable position of asking them what they would do.  You may be surprised by the responses.  Then, we should explain what we want them to do.  We don’t have to change their personalities to get between a harasser and his/her victim, but we should at least explain who we want them to tell.

Harassment training should mirror the tone of our workplaces.  It should set expectations and be meaningful for employees and managers.  It should make our employees contemplate their conduct without making them feel bad.

One more point:  Ladies, we don’t get to objectify men at work.  I’ve heard the argument that men have objectified women for a long time, so women should get to objectify men as a matter of fairness or even that they like it (uff da).  But like India has to grow green while we polluted for decades, we have to do the right thing.  We can’t objectify them either.  Enjoy a Magic Mike movie, but you can’t bring the poster into the office.  Ok?

This evening, I get to talk about trends in harassment training.  I’ve very excited (and a more than a bit nervous) about this.  Eliminating man-bashing will be one of the trends along with bystander and civility components, manager focus, and welcomeness elimination.  Any others you think I should talk about?

Photo by Nicholas Green 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

Employees & Their Pesky Social Media

In my experience, giving the finger to the President of the United States isn’t the worse thing an employee has done on social media.  (Heck, I’ve helped fire people after Charlottesville if you catch my meaning.)  But, the incident of Juli Briskman, her middle digit, and the President’s motorcade illustrates the employer conundrum of employee social media.  Whether you love social media (me) or hate it (lots of people), it is now a factor of every day human resources.  We must deal with it.

Before getting to the meat of employee posts and pics, let’s get three things out of the way. First, employees have no First Amendment right to freedom of speech when working for a private employer.  If Mike declared his love for canned cheese at a dairy facility, Mike’s termination would be lawful. It doesn’t matter where Mike made the declaration – the factory floor or on Twitter – a private employer may take action.  It doesn’t matter that it was Mike’s personal opinion, an employer can simply not like the comment and terminate Mike lawfully.

Second, social media is a 24/7/365 after-work happy hour.  Social media is at work.  It’s used to connect employees, improve relationships with co-workers, and find out more about new job opportunities.  When folks use social media to share their political opinions, complain about a neighbor, or simply rant about a particular product, co-workers learn about these things.  Because we are so connected through social media, those rants, diatribes, or laudatory praise are seen and heard by co-workers just as if they were said at work or happy hour.  This means the post can affect the workplace, it does affect morale, and it can hurt the organization.  There is no “her Facebook is private” or “it was during her off time” argument when employees (or customers or clients) are connected to each other.  Social media is definitely not Vegas.

Third, when a post has to do with the employer itself, taking action gets tricky.  The National Labor Relations Act allows employees to discuss, complain, or rant about working conditions with each other.  They can do this on social media without fear of retaliation.  The rest of this post will deal with employee posts and pictures that have nothing to do with the employer.  If a post has to do with the employer, find your friendly neighborhood employment attorney.  Fast.

If employers can take action when an employee posts something they don’t like, the question then becomes should they.  Some – like the Charlottesville posts – are easy calls.  If someone posts something racist or sexist, the employee has got to go.  I often use the example of Justine Sacco.  Her tweet rightly got her fired, and nearly all of the HR pros, students, and business leaders I speak with agree.

Justine Sacco

However, when an employee posts something, many of the same HR pros, students, and business leaders get nervous.  I use the following hypothetical:

Mike has been a Manager for 11 years.  His work is well respected & his contributions to the company are immeasurable.  Erin is a new Assistant.  She got the job, because her friend, Joe, referred her.  Joe is connected on Facebook with Mike & Erin.

Erin shared a post from her friend criticizing the Women’s March, stating women & “the gays” already have equal rights.  Joe comments on the post that Erin is wrong.  Because Joe commented, Mike sees the post.  Mike is really, really upset.  Mike tells his manager about the post.

When I ask, “What would you do?,” the responses vary from “well, I guess I’d have to fire Erin” to “Couldn’t we just discipline her?”  Sometimes, the response is “Do nothing, an employee gets to be who she is outside of work.”  While this is admirable, it might not always be the best answer.  What if Mike threatens to leave the organization because of the post?  What if Erin rose through the ranks and started making hiring and firing decisions?  Couldn’t her post have an impact on hiring candidates from the LGBTQ community or her involvement in your diversity program?  This is where things get dicey, and employers have to think long and hard about what they are going to do with the Erins of the world.  The right answer will depend on the employer’s culture and tolerance of risk – both legal and reputational.

Here are some questions to ponder:

  • What has or will the effect on the workplace be? How much of disruption will this be?  How much will morale be affected?
  • If a manager made the post, what will the effect be on their employees? Will the post influence or have the appearance of influence over their ability to hire, manage, discipline, and fire employees?
  • Does the post conflict (directly or indirectly) with your mission, vision, or reputation?
  • Does the post violate a policy? For example, confidentiality or harassment policies could be implicated.
  • How many people outside the organization can see it? Will customers or clients see it?
  • If this was posted by a different employee, would we treat this differently?  Why?

These questions, along with all the other questions employers normally go through before disciplining or firing someone, are necessary.  Employers need to see the entire picture.

The next important consideration is consistency.  In the POTUS-middle-finger incident, Ms. Briskman’s employer claimed that her picture of her extending her digit towards the President was lewd and obscene.  Hence, her termination.  However, Ms. Briskman pointed to a “director’s” posting where he called an individual a “forking Libtard ascot” (Shout out to The Good Place.)  Arguably, this post is equally (if not more) obscene and lewd as Ms. Briskman’s finger, but the director was able to keep his job after removing the post.  And, arguably, if the only difference is that Ms. Briskman is a woman and the director is a white male, when then, Ms. Briskman could have a gender discrimination case.  This is exactly why consistency is key.  If you’re going to fire Ms. Briskman, you have to fire the director too.

My friend, Heather Bussing, jokes that you find out about employee bad behavior on social media just as fast as employees run to the cafeteria for free pizza.  It’s true.  When Janine does something controversial on social media, you find out about it quickly.  You may have to deal with it just as quickly.

Photo by Annie Spratt on Unsplash

Happy Birthday, tHRive!

Today is a big day!  Today, tHRive Law & Consulting turns one.  In just the past year:

Human resources and employment law are ever-changing and exciting.  Our work touches nearly everyone, making it incredibly meaningful and challenging.  This is why I love it.  I can’t think of another area of business or law I’d rather be in.

tHRive Law & Consulting made it through one of the most significant milestones of any start-up – the first year.  I could not have done it without the support of so many and the confidence of my HR tribe.  For that, I am eternally grateful.  Thank you!

Now, onto the challenges of year two!

Photo by Markus Spiske on Unsplash