The Face of Discrimination May be Our Own

January 18, 2016

On Martin Luther King Day, it is appropriate to consider where discrimination and bias sit in our own lives.  More often than ever, I find the subjects of privilege, income inequality and social segregation entering into my conversations.  Thanks to the bravery, persistence and pluck of groups like Black Lives Matter, issues previously visible only to those negatively affected are showing up in unavoidable ways to everyone.  As a progressive of good will, I ask myself how I can make a difference in calling out institutional racism and discrimination.  I try to listen more than talk and to be mindful of seeing the world through the eyes of others.

What I think is most important for people of good will to understand is that we are quite likely to carry biases in spite of ourselves.  Implicit bias, by definition, is bias held by people who do not believe themselves to be biased.  If you have never taken the Implicit Associations Test or learned about the results (75 percent of its millions of takers show a preference for white people over brown skinned people) then I recommend you do so. A fabulous resource is the Book “Blind Spot: Hidden Biases of Good People” by Mahzarin R. Banaji and Anthony G. Greenwald, the originators of the IAT.

Two points that Banaji and Greenwald make are particularly important for us to remember on this day. First, that people who believe themselves to be free of prejudice are unlikely to discriminate by a hostile or harmful act towards someone who is different from them, and far more likely to discriminate by showing preference towards someone who is like them.  This is a simple premise with a diabolically powerful message; we can assure ourselves we are not discriminatory because we are doing nothing bad. The illusion of “only helping” is an extremely sustainable one if we don’t recognize the actual problem — our very human tendency to break the world into “us” and “them” and to favor “us” without thinking. Even our most altruistic acts may contribute to unintentionally feeding the advantage of the in group and sustaining social inequity.

The second point the authors make presents the only credible antidote I have found to scrutinizing  implicit bias. It comes from the work of  Psychologist Daniel Kahneman who posits two types of thinking; System 1 thinking, which is fast and helps us function on a day to day basis but can be inaccurate, and System 2 thinking which is more deliberate, concentrated and accurate.  System 1 thinking is at work when we get home from the grocery store and smack ourselves on the forehead because we have forgotten the very item we went to the store to purchase in the first place. System 2 is the brain working on a substantive problem, writing a blog post or analyzing data.  From this concept emerges the idea of a “conscious pause.”  Before making an important decision or judgement about someone, particularly if it has the possibility of benefiting someone, we need to move out of our System 1 brain and into System 2.  We need to ask ourselves if the volunteer commitment we are about to make or the donation check we are about to write or the job offer we are about to make arises out of in-group favoritism.  If we truly are committed to overriding our biases, our blind spots, our quick conclusion that we are doing the right thing must be subject to scrutiny.  Pause.  Think about it. Reflect.  Ask hard questions, or even better, ask someone else to challenge you.  In field studies of bias, self-scrutiny actually made a difference in whether race or gender were factors in critical decision making.

Daily we can find opportunities to be outraged by bigotry, discrimination and xenophobia.  Calling out these things when we see them in our public figures and institutions is essential.  Today, though, remember to look inside, and to remember the insidious nature of our own, inadvertent, but pernicious bias.

 

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SLIDES FROM THE UPPER MIDWEST EMPLOYMENT LAW INSTITUTE

May 24, 2012

 

As promised, I have attached PDF copies of my Power Point slides from my break out sessions for your personal use.  As always, I ask that you be respectful of my intellectual property rights and use it only for internal or personal information sharing.  Any other use requires express permission.

There are fifteen questions pending from the break out sessions, and the answers will be posted on this blog next week.  Check back then, and thanks for your interest in these topics.

 

The Subtle Art of Investigative Interviewing

Subtle Discrimination and micro inequities


Of Bathrooms, Bias and Blind Spots

October 26, 2011

Of the twelve investigations I have done involving transgender individuals as either complainants or the subject of complaints, all have involved bathrooms. One would think that, given the confusion, bias, fear and anxiety the subject of gender identity and in particular, transgenderism seem to generate, that the issue would come down to more than facilities for personal hygiene. Nevertheless, the use or non-use of gendered bathrooms seems to be the place where a society’s equal treatment tends to be tested.

In May of this year, the Office of Personal Management (OPM) issued comprehensive guidance to federal employers regarding the employment of transgender individuals. With regards to the use of bathrooms, the guidance states,
“The Department of Labor’s Occupational Safety and Health Administration (DOL/OSHA) guidelines require agencies to make access to adequate sanitary facilities as free as possible for all employees in order to avoid serious health consequences. For a transitioning employee, this means that, once he or she has begun living and working full-time in the gender that reflects his or her gender identity, agencies should allow access to restrooms and (if provided to other employees) locker room facilities consistent with his or her gender identity. While a reasonable temporary compromise may be appropriate in some circumstances, transitioning employees should not be required to have undergone or to provide proof of any particular medical procedure (including gender reassignment surgery) in order to have access to facilities designated for use by a particular gender. Under no circumstances may an agency require an employee to use facilities that are unsanitary, potentially unsafe for the employee, or located at an unreasonable distance from the employee’s work station. ”

This policy, developed in conjunction with the LGTB community, focuses on the need for sensitivity to an employees gender identity, allowing for flexibility during transition, but not drawing the line at whether or not the individual has had sexual reassignment surgery. This is in contrast to current employment practice in the state of Minnesota, which is guided by a Minnesota Supreme Court, in Goins v. West Group, 635 N.W.2d 717 (Minn. 2001), ruled that transgendered individuals cannot claim discrimination if their employers require them to use a bathroom consistent with their biological gender, as opposed to their self image gender. It is important to note that in this case, the term “transgender” was defined as people who “seek to live as a gender other than the biological gender attributed to them at birth, but without surgery. (emphasis added.) While the intention of this post is to provide some practical perspective on this matter, I can’t help but provide my readers with a fairly comprehensive critique of Minnesota’s ruling (and a similar one in NY) ranging from potential conflict to the ADA to the court’s simply not understanding that SRS involves only a very few parts of the body not generally exposed in a public rest room.

This focus on bathrooms speaks to something important; that employers are doing little to educate employees about gender identity. Bathroom fears arise from several misconceptions:

MISCONCEPTION #1 sexual orientation and gender identity are the same thing. They are not. Gender identity refers to the strong and persistent identification of oneself as male or female. Such identity may precede any sexual orientation at all, since it can arise in very early childhood. Sexual orientation, on the other hand, is the romantic or sexual attraction to men or to women or to both. Transgender people, just as people who have not transitioned, may, therefore, have any sexual orientation.
MISCONCEPTION #2 transgender individuals are a threat in the bathroom because they will be interested in looking at the genitals of those whose gender they identify with. This is where ideology meets absurdity. The fact is that the vast majority of people who enter bathrooms have one or two things on their mind — elimination and/or hygiene. Transgender people at work are…at work. They think about their gender no more or no less than anyone else, and are no more or less inclined to have leering on their mind.
MISCONCEPTION #3 People whose sexual orientation is towards the same gender will receive sexual gratification from being in a bathroom with same-gendered people. It’s hard not to be snarky about this one…after all, there seems to be a true absence of workplace-bathroom-crimes-of-passion over the past hundred years while gay and lesbian people have been using same-gendered bathrooms; but let’s not go there. Instead, let’s speak to the obvious. Employers cannot predict what might arouse each of their many employees, but they can, and generally do make clear through their sexual harassment policies that ANY overtly sexual behavior in the workplace such as leering, making advances, following someone into the restroom for purposes of sexual gratification) is considered inappropriate. There is no data to suggest that either gender identity or sexual orientation is a factor in sexually harassing behavior — in fact, the majority of reported sexual harassment is between heterosexual individuals of the same or opposite sex ( a brief nod to Oncale, the Supremes case which recognized same sex harassment by heterosexual men)

And now, we get to the heart of the matter. Bathrooms become the battle ground because employers confuse their employee’s misconceptions with legitimate gripes. This in part is because employers don’t always provide anti-discrimination training that once and for all distinguish CONDUCT from STATUS.

BUILDING THE RIGHT STUFF INTO YOUR ANTI DISCRIMINATION TRAINING

When providing anti discrimination training, I always include a hypothetical such as.
“A devoutly religious employee learns that her new office mate is gay. She objects on religious grounds and asks that the individual office elsewhere.”
I ask the participants to describe what the company should do, and it is here that participants are often stymied between the “religious rights” of the employee and the obligation of the employer. This provides an opportunity to ask people the degree to which employees should be able to identify status preferences in their coworkers, or, for that matter, supervisors to identify status preferences in their employees. I offer up the example, for instance, that a Jewish employee asks not to work with anyone of German descent, or an African American asks not to work with white southerners –or a supervisor will not hire a person from New Jersey because his cousin was robbed by someone from New Jersey (sorry New Jersey.) Quickly, participants grasp that status cannot be the basis for discrimination. This allows me to move into the more sensitive area of transgender employees– and to point out that we cannot ask our employers to “protect” us from other qualified workers based on what we think they might do, but instead, we focus on what they actually do. If someone, for instance, is discussing their sexual activity in detail, or someone is evangelizing in an unwelcome manner, an employer will most certainly respond.

Finally, it is worth clarifying to participants in training that each of us has a set of values that are profound, important and personal. We can acknowledge that for some of us, those values generate strong feelings, biases and blind spots. Those are their values, and an employer has no business trying to change them; however, when they come to work, the organization’s values are the values that must guide them, and should their behavior be inconsistent with the values of the organization, the employee could find themselves disciplined for that behavior, including making statements that are bigoted, prejudicial, based on unfortunate stereotypes or inciting fear or anxiety. Thus, the employer protects them from behavior they object to, and protects everyone from having their status impugned by those who disagree with them.

In this time of economic challenges, full plates, individual and organizational stress, employers must be highly proactive to ensure that the organization fully engages its people, free from the unnecessary and divisive distractions brought about by a lack of education and awareness about diversity issues.


Impasse. Logjam. Intractable Conflict.

July 26, 2011

The political stalemate in Washington, as disheartening as it is, provides a good opportunity to think about the conflicts that lead to claims, and the challenges of investigating claims when individuals have staked out a position/set of beliefs that seem completely contrary to one or more coworkers or supervisors who have equally powerful perspectives/beliefs. Particularly in allegations of hostile environment or systemic discrimination, parties have spent a long time talking themselves (and likely others) into their perspectives. They become inflamed by suggestions that there might be another way to see things, and should you insist that they try, they often fold you into those they view as “the other side.”

Several years ago, I investigated the work environment in a large nonprofit organization. After several complaints emerged of discrimination based on national origin/ethnicity/religion, they asked me to conduct an inquiry. Each and every one of the complainants was credible, and pointed out actions of management and supervisors, coworkers and even clients that they felt showed animus. Some had been disciplined in ways they felt were unfair. Others “knew” of incidents that supported their view that the organization was toxic. In one case, a complainant had been accused of misusing a piece of equipment, and pointed out that his majority coworker had used the equipment in the exact same manner with impunity. A second described a supervisor repeatedly calling attention to his protected class, making him feel uncomfortable. Because the 8 complainants had come together and shared their data prior to complaining, they felt absolutely certain that their data set was legitimate. The organization was poisoned with racism from the very top.

Speaking with management was equally challenging. For every specific incident, there was a different perspective. The equipment usage had not been the same, and the documents showed that this was the case. The supervisor who referred to protected class was concerned about the employee’s constant accusations of racism and had asked what could be done to diminish that perception. The employees were “plotting,” “jumping on the bandwagon,” and “were the real discriminators.” There was no basis for the complaints, and that was that.

As an investigator, we are stuck with facts, and it was with great regret that I stuck to my role and reported that while some incidents reported were accurate, many others were disputed fairly and by evidence. Those are the days when being an investigator is frustrating, because through the process of listening to the stories and sentiments of all of the parties involved, it became clear that the question before the organization was not just the legal one regarding the weight of the evidence, but the organizational challenge as to how the organization would move forward.

That gets me back to intractable, or seemingly intractable conflicts, and the valuable perspective that interest based conflict management brings to the table. My two “bibles” that have informed and supported my work in this area are Getting to Yes by Fisher and Ury and The Mediation Process by Christopher Moore. According to the first, to resolve a conflict,”…each party must…percieve that the continued existence of the other is both necessary and desirable from the point of view of his own self interest.” The second uses the Circle of Conflict to divide conflict into several categories; data conflicts, relationship conflicts, values conflicts, procedural conflicts.Moore’s circle of conflict Moore stresses that data conflicts– simple differences in data –say I thought our meeting was at 3, and you thought it was 2 — can easily become procedural conflicts –you never give me the right information–and then relationships conflicts –you set me up to miss the meeting. To make resolving workplace conflicts effective, it is important to work at the “bottom” of the circle — focusing on data differences, procedural differences and substantive differences, and by getting these worked through, to develop the trust it will take to begin to resolve relationship conflicts.

In workplace conflicts, two inevitable interests are present; for employees and managers, to receive satisfaction and remuneration for their work. For the organization, to get the work done so the organization can meet its goals. Beyond that, there are many more interests, such as (for employees) fairness, dignity, safety, boundaries and (for employers) having policies obeyed, getting good performance, shareholder value, profitability or mission. Identifying and finding common ground in these interests can form the basis for some powerful dialogue, some healing, and some new respect. There can be civility between “warring factions.” I know, because I have facilitated these meetings. Not to say it is easy. These interventions are time consuming, they are often emotionally intense, they require caucusing to reduce defensiveness and strict ground rules to keep the process afloat. Nevertheless, this type of arduous process of listening for interests and finding common ground may present the only sustainable resolution to the polarization and destruction of two or more groups with profoundly different realities. Absent that, there will simply be more eruptions of conflict fed by the sense that the concerns of all were not taken seriously, and those things wanted — have not resulted. The goal is to move away from what people “want” to what their interests are, and focusing on creating a road map to make sure those interests stay front and center. I for instance, have seen seemingly impossible conflicts softened by having participants describe what being “respected” would look like or feel like. Or to have people passionately speak to the importance of their work in their life, and how events have affected them. At the bottom line, finding what we have in common and exploring shared interests humanizes the process in a way that rights-based or position-based resolution cannot.

It seems that at work and in Washington if you can get past what people ‘want” in order to win, and get to what their shared interests are, in order to go forward together, there is a far greater chance of enduring, principled solutions. Unfortunately, to get there, we need to find ways to get past the legal fictions of “right” and “wrong,” and find our way to shared interests.


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 »


It’s Not Over When It’s Over– Retaliation Matters

November 28, 2006

Following an investigation that took several months, and created a lot of bad feelings in the workplace, Frank, the manager of the Sales group decided to pull everyone together.

“It’s been a rough winter for all of us, ” said Frank. “A lot of people are feeling badly and we’ve lost a few good people. It’s time to pull together as a team and be positive.”

As a murmur began amongst his team, Frank held up his hand and looked directly at a group sitting together towards the back of the room — the individuals who had filed the complaint that spurred the investigation. He stared directly at them, and his voice became stern.”And let me be clear, right now. There will be no more complaints. If you’ve got a problem, either keep it to yourself or fix it. No complaints. Am I understood? ”

Retaliation? Up until recently, there was ambuiguity about whether or not these kinds of actions were retaliatory. After all, they were just words, and no one had been demoted, fired or had their jobs altered. Doesn’t retaliation mean that the terms and conditions of employment have been affected?

This past summer, the United States Supreme Court heard a claim by Sheila White, a forklift operator for Burlington Northern & Santa Fe Railroad Company.(BNSF) White was the only female in her department, and had complained about harassment by her supervisor. BNSF responded to the complaint by conducting an investigation and then suspending the supervisor for ten days, also requiring him to attend sexual harassment training. The roadmaster, who managed the worksite, informed White of the discipline to her supervisor, and immediately assigned her to a less desirable position, stating that “a more senior man” should have her job since it was less arduous. White filed a complaint of retaliation with the EEOC, and then filed another claiming that she had been placed under surveillance and that the roadmaster was monitoring her daily activities. Several days later, after a disagreement with her supervisor, the roadmaster suspended White without pay for insubordination. She was suspended for 37 days, before an internal grievance process determined that she had not been insubordinate and reinstated her with back pay. White filed a third retaliation charge with the EEOC based on the suspensions. Read the rest of this entry »


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