Systemic Discrimination: A New Frontier?

December 27, 2006

The EEOC’s announcement that systemic discrimination is a new priority

has, in this investigator’s experience, prompted increasing claims that not only single locations, but entire organizations across multiple locations are engaging in practices or maintaining environments that constitute systemic discrimination. The challenges of investigating such claims are plentiful, but in some instances the sheer volume and range of data that must be collected can result in a more solid analysis than a simple case based only on the statements of parties and witnesses.

While not directly applicable to US law, the Ontario, Canada Human Rights Commission has identified three succinct areas of analysis that must be explored to determine if systemic discrimination exists:

  1. Numerical data, such as employment statistics, salary data, promotional and developmental information, leadership development program statistics, retention data. While these may appear to present discriminatory patterns, there may well be a nondiscriminatory reason for the numerical patterns, so they must be viewed in context.
  2. Policies, Practices and Decision Making Processes. Are policies and practices routinized, or highly discretionary? If routinized by clearly delineated procedures, are those procedures complied with? If discretionary, is there conscious or unconscious bias in the way decisions are made, for instance on relationship rather than qualifications. Are policies and practices unduly geared towards benefiting the dominant culture (i.e. promotional criterion favoring one gender over another.)
  3. Organizational Culture. Culture is all of the manifestations of shared values and beliefs. Internal cultures can be inclusive, engaging a wide variety of styles, talents and identities, or can be such that certain individuals are marginalized. Is there defacto segregation in job families? Are people pigeonholed into career tracks based upon their national origin? Is reward and recognition disbursed equally throughout the culture?

As an investigator, one must be prepared to explore all three of these areas. While the temptation to rely on an audit of an organization’s quantitative and procedural data is real, ignoring the more complex factor of culture renders an investigation incomplete. Unlike an allegation involving an incident or specific pattern of behavior and consideration of a limited “witness pool,” systemic discrimination cases involve careful sampling of both those expressing dissatisfaction and those making no complaints about their work environment. Examination of such things as routine communication patterns, invitations to and attendance at key meetings, appointment to key “high visibility” teams and “unwritten rules” all may come in to play, as may the history of all of these things. Who has informal access to leaders? Are corporate communications inclusive or exclusive? Are there “ghettos” of certain protected classes in particular job families? Is there a hard “norm” of who will be successful?
Because these investigations are both comprehensive and complex, the most helpful investigative skill set is somewhat different than it might be for normal employment investigations. A combination of strategic OD skill, or organizational assessment experience is a vital addition to at least the planning, if not the execution of the investigation. Careful application of sampling and open ended questioning is the purview of those who do “climate surveys,” and is extremely useful in organizing the cultural examination necessary for a thorough exploration of systemic discrimination claims. Focusing only on formal “cultural values” or aspirational statements is insufficient to view the submerged culture which can be the root of systemic discrimination, or can be the linchpin of a culture that truly is inclusive. Read the rest of this entry »

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Taking Note…Memorializing Your Interviews

December 13, 2006

When I teach classes on investigative techniques, I say emphatically that note-taking is one of the most challenging skills for an investigator (or any interviewer, for that matter) to develop. First of all, there is no template for “good notes” from an objective standpoint. My notes may be neat and tidy, and yours may look like gobbledygook, but that tells us nothing about their usefulness. The gold standard for investigative notes is not their style, their organization, even their general readability. It is that the person who wrote them can reproduce as close to verbatim as possible what was said, and moreover,that they can do this several years after the notes were taken.

I recommend a five stage approach to interviewing that actually involves hearing the interviewee’s “story” three times, with the second and third time completely under the direction of the interviewer. At least in this circumstance, the interviewer can impose order on the information being collected and can get the data in a manner easiest for him and her to record.

Taking notes in any medium is acceptable, if it will do the job, the interviewer is competent at doing so, and the original notes can be distinguished by any “filling in” done after the interview. Using a PC will allow a skilled keyboarder to take nearly verbatim notes, while handwriting will call for skilled shorthand, notehand, or at least the frequent use of abbreviations. Under these circumstances, it is best to review your notes immediately after each interview and to clarify things which might not be durably understandable. As mentioned above, however, one should do that in a new color ink, a different font or on a saved document with a “track changes”command, and both versions should be maintained in the file. Read the rest of this entry »


More on Reprisal

December 12, 2006

The Federal FMLA Blog: Retaliation reports that an employee’s opposition to the denial of FMLA leave to a coworker was found to constitute unlawful reprisal.

Another new development is a Federal court case in Arizona which found that elminating an employee’s title and position, and then putting  the employee on indefinite paid administrative leave against his will while he was on medical leave was found to constitute unlawful retaliation under the FMLA.  This is one of the first expansions of the new criterion established in the Burlington v. White Supreme Court case (discussed below) to the FMLA.  The court found that the undesired leave was “materially adverse,” and thus met the standard for retaliation, despite the fact that the employee continued to be paid. See Foraker v. Apollo Group, Inc (D. Ariz.2006)


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