Reflections on Fairness

March 9, 2016

I had the honor of speaking at HR West today.  It is one of the best HR conferences in North America, filled with energetic keynotes, informative breakouts and entertaining exhibitors.  Today I delivered “The Fairness Quotient and Why it Matters,” an evolving talk about the power of fairness to create resilience and loyalty in employees.  Today was special for me because I got to roll out my newly commissioned infographic:

Sepler Fairness Final

What I’m excited about is the concept that organizations don’t have to be perfect.  The evidence shows that if you are strong on only one dimension of fairness– distributive, procedural or interactional — that you significantly reduce the likelihood of employee claims and charges.  For years, I have been telling clients that outcomes are less important than process, that explanations are more important than outcomes, and that voice takes precedence over facts when trying to establish facts.  What this infographic puts together is all of the positive things that can be mined by following that simple set of principles.

When we deliver difficult news– an unexpected business change, reductions in force, even telling someone they did not get the job or promotion  — we have a choice about how to manage that.  Explanations, hearing someone out, honesty and yes, even apologies (well worded ones) can turn a potentially disengaged employee into a newly appreciative on.  When we train supervisors to focus on fair process, we gain the trust of employees in good times and bad, and when our leaders define fairness as a value, we create cultures that signal to employees every day that they matter.  This in turn lights the switch on positive metrics such as engagement and retention, and it increases the likelihood that when people have problems they will come to us sooner, giving us the time and opportunity to help them resolve the problems and get back to work.  This, my friends, is important and simple stuff.

If you would like a high quality hard copy of this infographic (suitable for hanging!) sent to you by snail mail, please drop me a line at fransepler@sepler.com.  If you’d like to hear more about workplace fairness, just let me know.


Getting to Yes: Simple Leadership

January 4, 2016

It is sometimes the simplest ideas that bring about real culture change in organizations.

Three simple questions. Three simple answers. The result is a harbinger of everything important to employers. It’s very simple to create a respectful workplace if you boil it down to this: if you can get one hundred percent of your employees to answer three questions with “yes” every single day, you will have a workplace where employees are engaged, they are productive, they are self-correcting (because they are giving and getting honest feedback) and they are showing up and staying with your organization. What are these magical questions?
Does my employer value me?
• Do the people I work with and for treat me fairly and humanely?
• Does my work matter?
Of course, the converse is true. If only some of your employees say “yes,” the rest are saying “no.” Negative answers to these questions bring about behavior, attitudes and performance issues that take time, energy and emotional investment away from the organization’s mission.
If it’s that easy, why is it so hard to find employees who love what they do? Because we focus on too many metrics, we make organizations unnecessarily complicated, and we don’t measure leaders on the happiness and engagement of their employees. If, instead of complex performance matrices or numerical fictions, we simply told leaders that they would be evaluated, rewarded and compensated on how many “yesses” they got to these three questions, how would they be spending their time? Teaching, coaching, praising, guiding, communicating and collaborating. Try it. Put these questions on your wall and every day ask yourself, “How can I get my people to yes?” Challenge other leaders to do the same. If the experience of one of my clients is indicative, your people will notice the difference immediately. In three months of “getting to yes,” theft was reduced, productivity improved, conflict was handled at a lower level, attendance improved and injuries were reduced. Supervisors began to post their ideas for getting their employees to “yes.” No complicated training, no lectures. Three simple questions, one big payoff.


The NFL, Bullying and The Next Big Thing

November 7, 2013

In 1998, 1999 and 2000 I went to the NFL Camps of the Baltimore Ravens and the Minnesota Vikings, and I talked about behavior.  We discussed sexual assault and date rape.  The players were unusually frank and raucous in each case, and the youngest players seemed amazed that they now had a public persona to master.  What struck me was that each year, one of the veterans (and marquee players) stood up when the less experienced players began to argue with the idea of respect and consent, civility and empathy and put a stop to the silliness.  I remember feeling profoundly moved when one Viking (whose picture was on my child’s wall as part of a trio of much-lauded players) stood up and said, “This is for real, guys.  We have a responsibility to the team, to each other and to the people we care about.”

I can’t speak for other teams, but I know there was hazing.  Late to the Ravens due to a bomb threat in downtown Baltimore, I learned they made use of the time by having the freshman players stand on  chairs and sing. I was curious and asked about the extent of the hazing. The coach chuckled about it, and told me how it used to be.  Brutality and humiliation.  No more under him he said.  Maybe carrying the equipment but no cruelty.

The headlines this week about the Miami Dolphin’s situation and the culture of hazing that exists in all or part of the NFL is not new news.  Statements in the media suggest that the degree of hazing varies from team to team, as does the involvement of coaches in setting the tone and calling out the limits.  In fact, several former players have discussed their experiences with hazing varying from silly initiation rites to outright cruelty; those who have survived them often claim the experiences have “bonded them,” or “made them stronger.”    Things get more interesting when you read the quotes from “the personnel men” at the NFL;

“”Locker room culture will never be understood unless you’ve lived or have been around it,” said a personnel man. “This is another ploy in the league’s ‘player safety’ book. Incognito knew who to try. You never heard anything like this come from John Jerry or Mike Pouncey. Instead of being a man and confronting him, he acted like a coward and told like a kid.

Aha.  Now we are getting to the dirty little secret behind bullying.  It is often attached to a visceral sense of exceptionalism and a pattern of enabling.  Once exposed, there is wringing of hands and claims it won’t be tolerated, but that history of enabling renders the organizations’ decrying incidents of bullying wholly unbelievable.  And it is not just the NFL.

The worst bullying cases I have encountered in the last twenty years have occurred in the professions, in academia and in other enterprises that involve super stardom.  The superstars may not live on posters in my child’s room, but they have marquee status on the firm’s letterhead, the university’s endowed chairs, the surgery suite and the charity’s boards.  These are the people who recognize their authority and power and abuse it. The organization, rather than demanding leadership, cowers in response to their misbehavior.  Bullying becomes a badge of success and is passed from generation to generation as a privilege of accomplishment. Those who survive are rewarded with promotions, tenure or other status and dollar-driven rewards. The ability to inure oneself to bullying behavior becomes part of the DNA of success, and the DNA of the organization.  Rather than condemn the rituals and behavior that probably thwarted their best work, targets who thrive through it simply emulate the behavior and denigrate those who cannot or will not survive it.  It becomes a badge of courage.

The hardest part of my work, which at times involves uncovering and at other times involves trying to intervene with, workplace misconduct, is that despite the rush of fear that organizations feel in the face of a complaint,  many of them have become inured to a culture based on an erroneous belief that people will do better when they have been subject to some “toughening up.”  One physician recently told me she cannot respect new doctors because they are protected by rules that limit the number of hours they can be asked to work consecutively in their training; “We would operate under conditions that seemed second only to death in the pain they caused, and I think that made us better,” she said.

There is nothing that actually supports the value of humiliation, abuse, embarrassment, exploitation or terror as a positive source of bonding, motivation or future performance.  There is nothing to be found that suggests that any positive organizational metric is associated with the countenance of bullying or negative hazing.  There is no literature that says being screamed at, called names, threatened, publicly criticized or having things thrown in your direction make you a better employee.  Rather, what emerges when we look at these patterns is a terrible dose of inadequate leadership, lazy ethics and a dull acceptance of the status quo.  This is where the work of combating bullying needs to focus.  It is well established that engagement and a sense of safety and dignity go a long way towards creating innovative, creative and productive employees, whether it is in pro sports or the corporate world.  To all of the organizations that say that this behavior is unacceptable, I issue the following challenge; make bullying behavior a toxin to success.  Make it clear by your words and actions that bullying behavior will block even a super star from further rewards, including promotion.  Expand your harassment policies to include non-protected class bullying and charge the folks at your highest level with promoting those policies and walking the talk.  Protect your whistle blowers and recognize that crawling out under the crushing weight of abuse to report it is an act of profound courage and bravery. Live up to those lofty mission statements that always include “respect” and “dignity.”

The next big thing?  A hard stop on bullying. A commitment to a culture where we name it and we rush to support it’s targets. A decision, collectively and organizationally that it really is as old and useless as a canister of DDT.  It’s a poison we can all now condemn and replace with smarter, safer alternatives.

For those not in the know, there is a bill floating around that would bring US states to the level of civility of most other first world nations. The Healthy Workplace Bill has been introduced in 23 states and passed in none. While opponents continue to throw out arguments that it is vague and bad for business, it is clear the law’s time has come.  It is time for a hard stop, and if the law can help, it should.


Before You Tell Them Not to Discuss The Investigation

August 14, 2012

…be aware of two very recent and very important pieces of information.  In one case, Banner Health Care 358 NLRB No. 93, the National Labor Relations Board found that blank “gag rules” requiring all participants in an investigation to refrain from discussing the investigation while it was ongoing, with the rationale of protecting the integrity of the investigation was a violation of Rule 7, which allows employees to discuss the “terms and conditions of their employment.”    The NLRB indicated that an employer has to have a legitimate business interest that outweighs that rule, including the need to protect a specific witness, danger of evidence being destroyed, testimony was being fabricated or there was a need to prevent a cover up.  A blanket practice to require all employees to refrain from discussing the matter was deemed too broad to meet these criterion.

In a second matter, the the EEOC’s Buffalo, NY, office has notified an employer of an investigation of its policy of warning employees not to discuss harassment investigations with co-workers:

You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition. It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination. So, discussing one’s complaints of sexual harassment with others is protected opposition. An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial”

While this is only one office of the EEOC, and we will see challenges to the NLRB decision, employers should nevertheless promptly make changes in their checklists or other means of providing notices to witnesses.

1)  Ask, don’t order witnesses and parties to refrain from discussing the matter, and explain that your purpose is to be certain the investigation is far and unspoiled by gossip, false impressions ,or influences.

2) Do as I have, and clarify to the witnesses and parties that they do have a right to discuss the terms and conditions of their employment with others, however they should not discuss the questions you have asked them or their answers.

3)  Analyze whether there is a reasonable risk of witness tampering, retaliation or harm to a witness, evidence that may be destroyed or collusion with others to falsify testimony.  If, for instance, a respondent has allegedly threatened a complainant with consequences for reporting, it seems the NLRB would find that an order to maintain confidentiality outweighed the rights under Rule 7.

This is not new.  I wrote about the tension between the right to concerted activity and investigative confidentiality in my book, and found myself posting it recently in a Linked In forum.   Make sure you have a sound basis for requesting someone to refrain from discussing the interview, clarify the purpose, and never provide a blanket gag order.


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.


Tragedy, Civility and the Workplace

January 11, 2011

I can’t help thinking that the tragic shooting of public servants and innocent bystanders in Arizona must be turned from so dark a moment to a catalyst for something positive . With pundits and politicians arguing about a madman’s motives and either casting or deflecting blame, let it be sufficient to say that turning our attention to how we speak to one another can’t do any harm.

It has been a constant theme in my work of late to have employees discuss their concerns about political discussions in the workplace. When describing prohibited conduct, including protected class harassment, I am frequently asked about individuals who foist their views on others, who name call those without shared beliefs, or who attempt to rile up those with views different from theirs. I am asked if this is ‘harassment’ and must respond that it is not usually unlawful harassment (unless there are offensive protected-class related comments), but it certainly disrupts the workplace. With great frequency, the follow-on question is whether people should discuss politics at work.

How are we to answer this question? I tend to reflexively turn to the model that places politics in the “values” column, with the conventional wisdom being that discussing values in the workplace is risky — predominantly because if one’s values differ from a coworker’s it might be difficult to reconcile the opposing viewpoints sufficiently to continue to work together with good will. This is why we don’t have casual conversations about, say, abortion, or the existence or non-existence of heaven or hell; too often, an opposing belief creates personal animus that can sabotage effective workplace relationships.
Values, Attitudes, Behavior

Certainly there are legions of advisers who agree that discussing politics at work is divisive. Others note the geometric effect that social media has on creating complexity in workplace debates about politics.. They are right. Discussing politics at work is…well, impolitic, and risky.

I wonder, however, if the evolving workplace might someday provide a tonic to the tone of today’s political discourse. If we think about it, the workplace is uniquely bounded by policy, rule and culture. Good employers expect employees to value diversity and to behave respectfully and civilly in order to ensure high performance. These organizations have been working hard to let people bring their differences to work. In these places, conflict is managed maturely and well. Perhaps it is in those workplaces we will ultimately find the model for the rest of America; the America that understands that alignment of purpose does not mean agreement on strategy, and that different voices make for a great chorus.

It’s a challenge; if you and I work together, respect one another, trust one another and have much in common, perhaps we can resolve to have a discussion about our differences in a civil, respectful manner. Perhaps the workplace provides us a forum to listen to understand rather than to persuade. In other words, if all is going well, we are at our best in the workplace. We are hopefully surrounded by people who we value. Maybe it is at the workplace where we appreciate the contribution someone is making that we can hear views different from our own and recognize that not everyone who disagrees with us has to be one of the vilified “others.”

Is this idealistic? Absolutely, but as a consultant who spends time with organizations at their darkest hours as well as during their brightest days, I find the capacity to listen without judgment, hear diverse perspectives, learn to live with those who see the world differently and embrace conflict as energy to be harnessed leads to organizations that excel in every respect. What a wonderful possibility it is that the workplace could be a model for the larger society, and in turn become even a better place to make a contribution. It is certainly worth considering.


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