Systemic Discrimination: A New Frontier?

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.

As these cases begin to emerge in greater numbers, the degree to which “softer” factors such as culture will be a key consideration will help to guide investigative standards. For the time being, limiting exploration to quantitative and procedural data is insufficient to fully take a systemic measure of an organziation’s practices.

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