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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Shred!

It’s the week between Christmas and New Years. You may be still be overdosed on food, family, friends, and festivities.  This week is kind of a fog in most offices.  So what could we do that wouldn’t require too much?

We shred.  Make it rain paper!  Take out those old personnel and recruitment files, and get the little delight as several sharp blades chew through now irrelevant information to make more room in your soon-to-be irrelevant file cabinets.

What could you get rid of?  You can probably get rid of a lot.  First, check your document retention policy.  If HR does not have one, check with your Finance or Accounting group.  They might have one that covers your files too.  If you have a policy, follow that.

Second, if you don’t have a policy, determine what record retention laws apply to you.  If your organization is a federal or state contractor, your records are covered by different laws and regulations.  For example, the EEOC regulations require employers to retain recruitment records for one year, but the OFCCP requires recruitment records to be retained for two years.  State law may have additional requirements for you as well.

Third, prepare to shred.  Put all the payroll records that are more than four years’ old in one pile, the personnel files of employees long since departed from your organization, and the old copies of employee handbooks in separate piles.

Lastly, find your shredder and giant garbage bags.  Order a pizza.  Pretend you are a group of roadies preparing for a concert.  Make the confetti.  It’s fun!

 

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Mr. Damore’s Folly

Yesterday, Google terminated a Googler who wrote a “manifesto” against “Google’s Ideological Echo Chamber.”  This is not surprising.  That said, the belief that Google only did so because of its “politically correct monoculture,” either fails to see the significant problems in the memo or intentionally glosses over them because of the hatred of political correctness.  Either way, we have some things to talk about.

Argh!  Stereotypes

James Damore’s memo has some jaw-dropping gender stereotypes about women (and a few about minorities).  They are more agreeable, women gravitate towards people-issues rather than coding, women don’t measure success the same way men do, women are not as ambitious, among others.  These stereotypes are woefully exaggerated.  Adam Grant, a Wharton Professor of Management and Psychology, wrote a great piece on the studies showing many of the stereotypes Mr. Damore cited and relied upon are not true.

We’ve known for a long time that stereotyping is bad.  It leads to discrimination, and discrimination leads to lawsuits and bad (sometimes really bad) PR.  Retaining Mr. Damore would have meant that Google could be on the hook for any discrimination he could have a hand in whether that discrimination occurred in the past or future.  Since Google (like many other employers) interviews in teams, this is a liability and not a small one.  (Not to mention the significant gender discrimination action Google is currently fighting with the OFCCP… but I digress.)

Argh!  Political Correctness

It is totally okay to dislike political correctness.  It is totally okay to define political correctness as someone telling a half truth or failing to speak plainly.  Political correctness is not using shortcuts – like inappropriate and untrue stereotypes – to make a point.  It is not okay to say that stereotypes are simply true and we should all just “get over it” in the name of ending political correctness.  How Mr. Damore couched his message told his co-workers that they are less than, that they will never be as good as him, that they have a place but it isn’t here.  That is never a message anyone (employee, employer, human) should send.

Everybody

Mr. Damore is right about one thing – an effective workplace has everybody.  The individuals and organizations that buy products and services incorporate everybody, so we should reflect the world around us.  That is what diversity and inclusion initiatives are designed to do, bring and keep everyone into the workplace.  Sometimes, we focus efforts on a particular group that is underrepresented because they are underrepresented.  Sometimes, we mind our own business as to what bathroom people are using.  Sometimes, we make an effort to hear the voices of others.  (Insert “rising tide floats all boats” quote.)  We try to include everybody not only because it is the right thing to do, but it is the best business decision to make.

Mr. Damore’s naiveté (and arguably something else) has gotten in the way of this.  He’s right, we have to make room for conservative, liberal, libertarian, socialist, and every other point on the political spectrum.  But we do this because it’s good for business.  Google’s own research shows that teams of different people – different thought processes, different personality types, different genders – make better teams when they work to make sure everyone feels psychologically safe.   We know that having diverse perspectives mean we make better decisions, we develop better products, we do better.

It’s what every employer should be trying to do.

Mr. Damore told Bloomberg that he was fired for advancing gender stereotypes, which he unmistakably did in his memo by stating them as truths.  The correct response was to terminate him.  Mr. Damore told a New York Times reporter that he will likely take legal action over his termination.  Nevermind the fact that there is no such thing as “free speech” in the workplace.

P.S.  I am raising two white men.  I understand the feeling that they might not get to participate in certain activities because they are white boys.  But that is nothing – nothing – compared to the decades, centuries, that women and minorities have been locked or pushed out.  My guys just have more competition.  Competition is truly a capitalist principle.  So, bring it on!

 

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Issues for HR Compliance Students

Wednesday marks the start of Mitchell Hamline School of Law’s HR Compliance Certificate program.  As one of the Adjunct Professors, I’m pumped!  With a cohort of HR folk from around the country, we get to analyze, theorize, and hash out business and HR compliance issues that can pop up in every company. We also get to chat about current HR compliance events.  Here are a few we’ll touch on:

“Google’s Ideological Echo Chamber”

Over the last few days, a “manifesto” written by a male Googler went viral.  The 10-page document recounts how the genders are different and diversity and inclusion programs have only resulted in more discrimination.  (His words, not mine.)  Here’s a snippet:

We always ask why we don’t see women in top leadership positions, but we never ask why we see so many men in these jobs. These positions often require long, stressful hours that may not be worth it if you want a balanced and fulfilling life.

Status is the primary metric that men are judged on, pushing many men into these higher paying, less satisfying jobs for the status that they entail. Note, the same forces that lead men into high pay/high stress jobs in tech and leadership cause men to take undesirable and dangerous jobs like coal mining, garbage collection, and firefighting, and suffer 93% of work-related deaths.

Yonathan Zunger, a former Googler, wrote a well-reasoned response to the manifesto discussing how it makes it harder for Google to operate.  Google’s brand new Vice President of Diversity, Integrity & Governance also weighed in, writing “Part of building an open, inclusive environment means fostering a culture in which those with alternative views, including different political views, feel safe sharing their opinions. But that discourse needs to work alongside the principles of equal employment found in our Code of Conduct, policies, and anti-discrimination laws.”

Google is in the midst of a gender discrimination action brought by the OFCCP.  The action has already garnered a great deal of attention.  This manifesto makes the action even more interesting.

Uber

Last session, HR compliance had an easy mark in Uber.  Gender discrimination, sexual harassment, former United States Attorney General investigation, HR leader encouraging hugs, a new performance review, ousted CEO, you name it, Uber has an HR compliance issue for you!

Uber’s compliance issues have not gone away nor have they really calmed down.  Following a petition from employees to return embattled and controversial CEO Travis Kalanick, Mr. Kalanick appears to want control of his company.  He has made such comments that he is “Steve Jobs-ing it” and has hired a CEO-consulting company to help him regain control.  While his success remains to be seen, he poses interesting HR risks.

While both of these issues come out of Silicon Valley, they are not new to HR.  Every sector has issues, and every company could have a PR nightmare like these.  I’m particularly interested in how students would try to attack these issues.  So, how would you respond?

 

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SHRM National First-Timer

This year, I was given a great opportunity – attend my first SHRM national conference in New Orleans.  I got to spend three days with 17,000 of my HR friends, meet the people I have been following and listening to, and learn from some smart speakers and attendees.  It was amazing and downright exhausting.

Here are some of the things I took from the conference:

The worst loss to deal with is the loss of life and love, followed closely with trust. Kat Cole got everyone craving Cinnabon and thinking about how we build trust with the right doses of humility, curiosity, courage, and confidence.  We fail when we’re too far away from the front lines of our business, are unwilling to do the right thing, and don’t change policies to keep up with the organization’s needs.  We need to consider whether individuals can trust us, how we rebuild trust when we do something to harm it, and put integrity at the center of our organization.

Some healthy skepticism is important. Much of Laszlo Bock’s keynote was super – give your work meaning, trust your people, hire people better than you, etc.  But when he discussed paying people “unfairly,” there was a healthy dose of skepticism from the audience and twitterers.  Mr. Bock believes that you should pay people based on how well they perform and how much they are “all in.”  These disparities can be up to double the amount you may pay someone else in the same role in Mr. Bock’s opinion.   This is really something given Mr. Bock recently left Google where his pay practices are now subject to a significant lawsuit that The Guardian headlined as “extreme” gender discrimination.  While I agree that paying people based on their performance is good in theory, when the discrepancies appear to include a dose of discrimination, we have a problem.

Be disruptive.  Jennifer McClure‘s presentation about DisruptHR included some nuggets from these events, including my personal favorite, “Respect the data, but make human decisions.”  Jennifer encouraged her audience to be disruptive, but that doesn’t mean that they need to revolutionize.  Small changes can be disruptive too.

If you have a brain, you’re biased. Yes, I knew this before, but David Rock’s discussion on the neuroscience behind unconscious bias was great.  Mr. Rock started out talking about how to sell diversity initiatives – it’s not just about improving the bottom line, it’s also about making better decisions.  He spoke about how it is very difficult to work against individual biases, so work on the bias at work as a team.  I was both fascinated and challenged by his presentation.

My favorite HR tweeple are super. I love Twitter.  I’ve met some great people online, who I had not met in real life who I could call up to ask questions or ask for a smidge of reassurance.  I got to meet these people IRL at SHRM, and they are just as cool, friendly, and smart in person.  It was so great!  John Friend is right, “SHRM is HR Christmas.”

I can’t wait to go again next year!

Selling Compliance

No one in HR wants to be considered a Peter from Peter and the Wolf.  But yet, when it comes to compliance issues, it is easy to fall into that trap.  We are often running around saying “we can’t do that!  We’ll get in trouble!”   After a while, leaders start to tune us out.  To be effective, we have to seize a case for compliance in terms of business.

Consider this:  What if we looked at employment laws and regulations like best practices with teeth?  Now, I get that this is controversial.  Very, very few people would design a diversity program like the OFCCP’s affirmative action regulations and other examples certainly exist, but bear with me.  What if we looked at the underlying reason for a particular law and compared that with a business goal?  Wouldn’t they be similar in most cases?  Would that make it easier to sell compliance?  The answer: You betcha!

Take for example, paid sick leave.  As of December 31, 2016, 37 jurisdictions (mostly cities, counties, and some states) had enacted paid sick leave laws.  While paid sick leave is certainly a trend at the local and state levels, many employers have understood that they needed to provide sick leave to employees for decades.  These businesses knew that if they didn’t offer the paid time, they would not get the talent they were looking for and employees might leave if they didn’t have the time to care for themselves and their families.  While paid sick leave is now law in some areas, it has long been a recruitment and retention tool for employers.

For an employer in a jurisdiction with a paid sick leave law who doesn’t offer it, HR is now in a position where it needs to sell the benefit as a legal requirement.   HR could package a proposal like this – paid sick leave is needed to get and keep the talent we need and the new ordinance provides a framework to do that.  Would that be an easier sell?

What about sexual harassment?  We know that anti-harassment laws were designed to protect women in the workplace so women could be productive, safe, and contribute our skills.  These laws also try to create workplaces built on the respect for all employees.  These are business goals.  When there is a culture rife with disrespect or disharmony, productivity comes to a near halt.  Turnover increases.  Employees are disengaged.  No business leader wants this to happen.  Preventing and then stopping harassment in its tracks protects the workplace and protects the business from legal claims and PR nightmares and keeps the focus on where it should be – the organization’s mission.

CEOs care about talent.  They care about finding the best talent the can and holding on to the great talent they have. According to PwC’s 2017 CEO survey, talent remains a top priority and as does diversity.  When we view employment laws and regulations as things that can be aligned with business goals, it becomes easier to get buy-in from the top.

This works for every employment law.  If you can’t come up with a business goal, try me.  I believe there is a business goal attached to nearly all employment laws.  I’ll accept the challenge to find one for your organization!

 

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