Monthly Archives: October 2017

The Role of HR in Smashing Harassment

In The News, , ,

Please read my latest post to The SHRM Blog on the importance of HR in stopping harassment.

I have been thinking a lot about Harvey Weinstein and other high-profile cases of serial sexual harassment. These cases are extraordinarily disturbing, to say the very least.

There are some who have suggested that the Weinstein nightmare is simply a Hollywood problem, dismissing it as nothing more than the age old “Hollywood casting couch.”  How patently wrong they are.

Hollywood needs to clean up its act, but it is not just Hollywood. What happens in Hollywood is but a symptom of a much broader societal problem.

Predatory sexual behavior by men with power exists in every industry. Of course, women can engage in harassment, too, but I am not aware of any women who have exploited their power to harass men or women in the way Weinstein and other men have done.

This is not to suggest that all men with power abuse it in such a heinous way. But leaders in general and men in particular must do more than avoid what is wrong, and behavior is wrong long before it rises to the level of what has been reported in the high-profile cases. By their words and their actions, leaders must make the organization’s anti-harassment policy a true reflection of corporate culture.

HR plays a critical role in this battle. Publicly, HR professionals must stand up to harassment and implement holistic programs to prevent it from occurring. But not all preventive efforts will be successful.

When bad behavior happens, there must be consequences. More quietly, HR has and will continue to play a key role in helping to remove from workplaces those who abuse their power and assault the dignity of others.

On social media, I have seen some ask whether HR is protecting the employer or its employees. The answer is both.

HR must protect employees and, in doing so, it protects the business from legal and reputational risk. There is a reason that the “H” in HR stands for human.

Recent events do not create a new issue for HR to tackle. The best HR professionals are already all over it.

But HR has an opportunity, indeed an obligation, to ask itself: What more can be done? The HR professionals with whom I speak are asking questions along the lines of:

  • How do we ensure that leaders do not simply pay for but attend anti-harassment training and make clear their support for it — again, by their words and actions?
  • What is the best way to assess whether there may be a culture of complicity and, if there are complicit people with power, how do we best incent them to do what is right and stand up to what is wrong?
  • Knowing that many women who feel harassed do not bring claims out of fear, how can we create complaint procedures and environments in which employees do not fear retaliation if they raise or support concerns?
  • How do leaders respond “in the moment” to unacceptable conduct without engaging in paternalistic rescuing or re-victimization?
  • Other than thanking an employee for bringing any concerns to their attention, what should leaders say (or not say) when an employee has the courage to open up to them?
  • How can we respect the strong desire of many victims of harassment to keep the matter as confidential as possible but still send a strong message that the company will not brook unacceptable conduct, severe or subtle?
  • What are some promising practices to remind employees throughout the year of the reporting mechanisms, assurances of non-retaliation and harassing behaviors that must be avoided, recognizing that, even in the best cultures, training once a year may not be enough?

These and other questions require careful thought. Our employees deserve nothing less.

But one point must be crystal clear in every organization: The more power you have, the more is expected of you. Those who abuse their power must be met with prompt and proportionate corrective action.

In some cases, this will mean terminating the rainmaker. But if you ignore, or worse yet protect, him, a jury can and will take away all the rain. Plus, values matter.

While I am horrified by recent events, I have some hope by the response I see in the HR community. But HR cannot do it alone; it does not “own” civility.

Every leader must join the battle. It is one of the moral imperatives of our time.

Segal was appointed to and served as a member of the EEOC’s Select Task Force on Harassment. However, Segal speaks for neither the EEOC nor the taskforce.            

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP

95 Million Reasons to Conduct an I-9 Self Audit…Very Carefully

In The News, ,

I am pleased to share my latest post to The SHRM Blog.

In 2009, the Department of Homeland Security (“DHS”) began auditing the I-9 practices of Asplundh Tree Experts Co.  Last month, the Company pled guilty in Pennsylvania federal court to a charge of knowingly employing immigrants without authorization to work in the U.S.  The fine: a record $95 million.

In response, more and more employers are considering self-audits before DHS comes knocking at their doors.   While employers are well-advised to conduct an I-9 self-audit, there are legal minefields that need to be navigated or the self-audit may increase the employer’s potential liability.  Here are but some examples:

  • In the interest of being super compliant, some employers have considered having all employees execute new I-9s.  This is not super compliant, but rather super dangerous.  It raises serious discrimination risks under the Immigration Reform and Control Act (“IRCA”).
  • Other employers have questioned whether the Trump Administration’s Executive Order on DACA workers (Dreamers) requires that employers complete new I-9s for these DACA workers.  The answer is an unequivocal “NO.”
  • Employers cannot select for inspection employees they perceive to be high risk, such as those on visas, or those with “foreign-sounding” last names.  This type of targeted audit raises all but certain liability not only under ICRA but also the employment non-discrimination laws.
  • Inevitably, employers may find that some I-9s are missing.  In these cases, employers should complete new I-9s, dating them on the date in which they are completed.  NEVER back date.
  • In other cases, employers may find I-9s that are incomplete.  In these circumstances, the employer, using a different color ink, should have the document completed (either by the employer and/or the employee, depending on the omission) and, again, the employer should date the change on the date in which it is made.
  • In still other cases, there may be a mistake.  No employer ever should white out anything on the original I-9.  Rather, the employer, in a different color ink, should cross out the incorrect language, substitute the correct language and date same on the date the change is made.
  • The employer should prepare a summary of the scope of the audit, the manner in which it was conducted, and its findings.  But this is another blog for another day.

This blog should not be construed as legal advice.

Warning About Implicit Bias Awareness Tests

General

Please read this important article I wrote for SHRM on how implicit bias is a real problem and so are the tests that purport to measure it.

We all know that not all bias is conscious. Some bias is unconscious—often, referred to as implicit bias.

This means that we may be engaging in bias without even knowing we are doing so. This is most likely to occur when we make snap judgments.

For example, most of us have read about, or at least heard of, studies that demonstrate the name on an application affects the likelihood a candidate will be selected for an interview. Men do better than women and candidates with names that are often associated with people of color are less likely to be selected than those with names that are not. In other words, Kesha will get fewer interviews than Karen, and Karen fewer than Kevin.

To help bring implicit bias to conscious awareness, some employers are using tests designed to measure implicit bias. One popular example is the Harvard Implicit Awareness Test (“IAT”).

However, these tests are far from conclusive. There is substantial debate in the psychological and neurological communities about whether the Harvard IAT or other tests truly measure implicit bias.

Further, these tests create evidence that may be used against employers. Let me give you an example.

Your executive team members take implicit awareness tests. Cindy is your Chief Information Officer, and the results of Cindy’s implicit awareness test suggests an implicit bias in favor of women.

Cindy promotes Susan over Zachary. Zachary’s counsel argues that the results of Cindy’s test help establish gender bias.

Are the test results admissible at trial? The law is not yet settled but the answer may be “yes.”

What do you do if admissible? Hire an expert to discredit the test you administered?

At a very minimum, you need to be aware of this risk. My raising this legal risk is not hypothetical..

Better yet, consider ways to get at implicit bias without creating admissions that can ravage you in litigation. The options are as vast as your creativity.

This blog should not be construed as legal advice, as pertaining to specific factual situations or as creating an attorney-client relationship.