HR’s Response to Racism In Viral Form

Social media is one helluva thing.  It can rapidly spread information (both fact and lie), keep us connected to friends and family around the world, and put a glaring spotlight on our abhorrent behavior.  Like Amy Cooper’s.

If you missed Monday evening’s social media, Christian Cooper, a black man, was out watching birds in New York’s Central Park when he saw Amy Cooper, a white woman, out with her unleashed, rescued Cocker Spaniel.  Christian (because there are too many Coopers in this story to keep everyone straight) asked Amy to leash her dog per the Park’s rules and the many signs posted near the area.  What happened next is subject to this video and represents a potentially lethal cocktail of lies, threats, racism, white privilege, and police involvement.

Within just a few hours, Amy was identified as a Vice President for Franklin Templeton, an investment firm, and placed on administrative leave.  She turned her dog over to the rescue shelter where she got him.  Not surprisingly, the video went viral while #AmyCooper and #FireHer trended in tandem.  And, perhaps surprisingly, Franklin Templeton’s website appeared to crash.

Imagine for a minute that you’re in HR for the organization Amy works for.  What do you recommend? 

Put her on administrative leave? Absolutely, leave is exactly the right thing to do immediately, especially on a holiday.  Leave buys everyone some time to cautiously go through what happened and prepare next steps.

Investigate?  Investigate this particular incident?  No. The video is pretty clear, and she’s admitted her conduct.  A decision can be made right now.  However, should you investigate whether Amy’s behavior has impacted employees in the organization.  No doubt about it.  You have to.  Because Amy appears to have supervisory authority, her attitudes towards race may have impacted decisions she has made involving performance reviews, hiring, firing, training, etc.  Going through those decisions is going to be a must.  Not only will the video be Exhibit A in any discrimination case brought against Franklin Templeton that involves Amy, it will also impact the employees she supervises and works with.  Some may believe that the racism she displayed in the video affected her decisions and will want to know from you that you’re taking it seriously while determining if it actually has.

Talk with employees?  Absolutely.  This incident is going to affect your workplace.  Black and brown employees are going to be particularly affected and will be paying close attention to how the organization responds.  Let’s assume the organization wants to be antiracist.  A message from the CEO must happen and happen quickly.  Open forums (even over video) should take place so you can hear from employees, and employees should be encouraged to bring up concerns in any format they choose.  Amy’s managers (and potentially every manager) should hold meetings with staff talking about the organization’s commitment to being antiracist.  You can casually check-in with other staff too, touching base with them. Check-in especially with staff who you believe would participate in a forum if it was held in-person but who don’t appear at the virtual forum.

Remind employees about your policies?  You betcha!  You’re going to remind employees about your harassment and discrimination policies (which no doubt would cover the kind of conduct in the video).  You’re also going to remind employees about your policy about talking to the media, namely that they are not authorized to speak for your org unless specifically told they may.  If you don’t have this policy, that’s okay, but make sure you tell employees they cannot speak for the org.

Fire her?  You have no other option.  Leave was the right decision Monday evening, but you have to recommend her term today.  Is this a trial by media?  Of course.  Did she admit the conduct?  Yes.  Is it affecting your workplace?  Your servers crashed, your organization is in every major newspaper around the globe.  Employees are outraged.  Customers are likely outraged.  You have no other viable option.  Sensitivity training isn’t going to cut it. Keeping Amy will forever bind her acts of racism to your employer brand.

Now, imagine you’re in HR for the organization Christian works for.  What do you recommend?

Administrative leave?  No.

Investigate?  No.

Talk with employees?  Absolutely.  Talk with Christian.  See how he’s doing.  If he’s okay, tell him you’re happy he is.  The media spotlight is going to be glaring at him for a bit, so ask him what you can do to help minimize any negative impact.  Does he want to you to share with the media that he is your employee and that he’s great or not-so-great?  Does he want you to remain mum?  Ask him.  Your support is important.  You should also hold other meetings with employees, like open forums to talk about the incident and how it might affect them.  Managers should be equipped with talking points about how the organization is going to respond.

Remind employees about your policies?  Yep!  Same reminders as above.

Fire him?  Nope.  Christian did nothing wrong.

Remember, Justine Sacco?  The lady who tweeted a racist sentiment before getting on flight to Johannesburg?  She was fired mid-flight.  Amy is going to get fired here too.  And, that’s the right decision.  What’s more important though is how you in HR respond to Amy’s conduct.  How you address employees.  How you give them the opportunity to share their feelings and ideas on how to be better.  Not giving employees the opportunity to share, not addressing the situation will make everything worse, for a long, long time. 

Photo by camilo jimenez on Unsplash

Me & You Metrics

I wear an Apple Watch.  I have since they debuted in April 2015.  I love it even though I rarely use all of its functionality.  I track my calories burned, whether I work out, get all the notifications from Twitter to reminders to actually breathe.  (Little nugget – I have only missed my stand goal twice in nearly four years.)  I’ve metric-ed myself to death with Ive (my watch’s name).

Yet, I would never share all of this information with an employer.  You can tell where I’ve been, whether I went up a flight of stairs, or my heart rate at a particular time. You’d be able to figure out so much about me, my habits (good and bad), and could even use the information to determine if I’m a good employee.  (She sits too much when she should be chatting with customers or getting parts.)

My personal beliefs of biometrics are part of the reason I’m less-than-enthusiastic about recommending employers use them.  I love the idea of determining if there’s a better way to lay out a manufacturing floor, whether we could reduce real estate costs by encouraging hot-desking, and I’m even for handing out Apple Watches to employees for wellness purposes.  But I just can’t get endorse an employer gathering this data and then making employment decisions based on the data.

My biggest concerns surround privacy and the potential for misuse of personal health information.  Employers don’t get to know what I do off work provided it doesn’t affect the workplace.  If an employer knows, could I get terminated for spending too much time at a movie theater rather than reading business books?  What about not spending the night at my house but at a friend’s? Biometrics can allow data gatherers to be the Big Brother technology has often been portrayed as.

As for health information, biometrics are implicated by the Americans with Disabilities Act, Genetic Information Nondisclosure Act, and many state laws.  Imagine being an employee in a wheelchair where steps taken are not going to be tracked.  Does that mean that that employee is not going to be considered when the health data is aggregated into an analytic tool that determines who should be promoted?  Or imagine being an employee who struggles with his weight who has trouble meeting his step goals.  When his fitness goals are not met, does that mean he could be terminated, maybe even in an effort to reduce overall health costs. (This would likely be unlawful under ERISA, but that might not stop an overly cost-conscious employers.)

To this end, I recently went on XpertHR’s HR Podcast to discuss a new decision out of Illinois on biometric data collection and the possible impact on employers from coast-to-coast.  I encourage you to listen.  You can listen here.

Photo by Alvaro Reyes on Unsplash

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.

FMLA Screaming (Part II)

Have you pondered the question from yesterday’s post?  Agree with me that there are things you can do and things you should do?  That should do includes approaching FMLA with come compassion and not being super strict with FMLA’s limitations, right?

Yesterday’s post covered some of my tips for the start of FMLA.  Here are a few more for during leave.

Preparation for leave is essential.  Hopefully, the employee knew he needed to go on leave and was able to prepare by giving his manager his passwords, updating her on the status of projects, and plan to turn over work.  Sometimes, this isn’t the case.  An accident, premature delivery, or quick onset of a serious illness can take the employee out of the workplace leaving a manager without the benefit of the advanced notice.  What do you do in these emergency situations?  Leave the employee alone.  The employee is already ill or injured himself, worried about a family member, or facing the crushing reality of being a parent to a new baby.  The status of the sales agreement with customer XYZ is not top of mind.

Let technology help you with not knowing what’s going on.  Get access to email and other systems to help piece together the status of projects without bothering the employee.  Need a password?  Work with the software vendor or your own IT team to recover a password if necessary.  Change permissions so the manager or another team member can see things.  Again, don’t bother the employee.

If the leave is intermittent and the employee’s need for leave could come as a surprise on any given day, plan for what that looks like.  How will the employee handle the sudden need to be off?  Come to an agreement with the employee about his work when this happens.  Does this mean the employee spends the last 10 minutes of each day sending a quick email on the status of things?  Maybe.  (Would that be a nice thing to have anyway even if he didn’t need leave?  Yep!)  Setting expectations is a manager’s job.  If the manager laments every time Juan takes an intermittent day, well then it’s the manager’s problem for not preparing for this – not Juan’s.  (I know, I know, this isn’t a great one-liner to share with the manager, but you all are good coaches, you’ll soften the message.)

Don’t surveil the employee.  Seriously.  Don’t send someone out to watch the employee’s house to see if he is cleaning his gutters or fixing a deck.  Don’t monitor his social media accounts for signs of a vacation.  Assume the employee needed the leave and is using the leave within his or his family member’s health care provider’s instructions.  If something fishy starts happening, you’ll learn about it.  Don’t waste your time and resources beforehand.

When the employee is ready to come back to work, don’t forget the ADA.  Yes, the ADA can be an even bigger headache for employers.  Yes, the Seventh Circuit recently held employers might not have to give more leave than the FMLA requires.  However, the ADA places a reasonableness standard on employers.  Employers are required to consider reasonable accommodations, including leave, for each requesting employee on a case-by-case basis.  Don’t get consumed with “well if we give it to Larry, we’ll have to give it to everyone else.”  Remember, the ADA requires case-by-case analysis.  For more return-to-work tips, check here.

Lastly, remember that communication is really important at the end of leave.  You may want to know if any restrictions are necessary.  You may want more confirmation as to what day.  For requests like these, remember K8’s rule of three.  Ask at least three times in writing before you assume the employee is abandoning his job.

I get that the FMLA is tough.  I get that it can be frustrating for HR and managers.  However, it can be a godsend for employees.  It’s supposed to give them peace of mind that their job will wait for them if they need to be out for a bit.  Use this fact as a part of your compassion and empathy game. The employee will thank you for it.

 

 

Photo by frank mckenna on Unsplash (Great, happy picture, right?  Perfect for a Friday!)

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