Back to Basics In Workplace Investigations: Tips, Techniques and Reminders

January 7, 2014

ImageI’ve run into some situations lately that compel me to write about some basics of workplace investigation.  Yes, I tend to wander into the weeds of workplace bullying, coaching harassers and subtle discrimination, but at my core, I am a workplace fact finder.  I come to my investigations as a neutral and my job is to get to the bottom of things, while doing so in a way that makes my work both defensible and least disrupts the operations of the organization.

Some of you, readers, rarely do investigations and others do so with some frequency.  The missteps I most commonly see are what I would refer to as bad habits or non habits; faulty practices that frequent investigators use and keep using, and big attempts to use sophisticated techniques by those who have little opportunity to hone them.  With this in mind, I will offer up a few thoughts, theories and recommendations for all workplace investigators.

  • Remember that the majority of people who are the subject of your investigations will NOT be terminated, and your approach will affect their future engagement

This is as fundamental as we can get, and what makes an employment investigation completely different in tone and technique than a criminal investigation.  We are attempting to discern whether misconduct has taken place.  In some cases, if the facts show serious misconduct, the organization will terminate the employment of the bad actor because of the severity and the factual support for the the conclusions.  Most of the alleged misconduct that happens in the workplace falls into the category of “bad judgment,” “single moderate offense (remediable),” “good long term employee made a mistake,” “the complainant overstated the nature of the conduct,” or “violated a policy, but so have others without consequence.”  I could probably come up with more, but these are the ones at top of mind.  In each of these circumstances, there may be discipline, remedial action or both, including the dreaded “final warning,” but the employer may find the misconduct does not rise to a level where termination is justified or supportable.  Just last month I dealt with a fabulous manager who inadvertently gave one employee an advantage over another.  It was serious and called for remediation, and the manager was warned he’d be demoted if it happened again.  Classic.

My point with all this?  We must treat each person we interview with respect and dignity, and come at each interview with an open mind.  We should always start by assuring the person we are talking to understands who we are, what our process is and what their rights and responsibilities are, and we should begin by either asking general questions or allowing them to provide us their narrative about a situation.  Using interrogation techniques that involve threatening people with termination, telling them how much trouble they are in, using legal terms like “theft” and “harassment” or asking them if they think what they did was right or wrong do not belong in employment investigations.  We can be firm and direct in confronting statements we think are untrue, but not by telling people we think they are lying. We can make credibility assessments without labeling people in shaming ways. These are company human assets, and we do not want to destroy them in the process of getting information from them.  The gold standard for us is, “I was treated fairly.  The investigation was unbiased.  The outcome was fair, even if I don’t like it.”  These employees, while unnerved by being asked tough questions, or unhappy with the ultimate outcome will know they were treated fairly and humanely, and when this crisis is over, they will have a decent chance of being able to go back to work and reengage, whereas those who were verbally “slapped around” will have an enduring disdain for and resentment of their employer and whichever entity conducted the investigation.

  • It should now be the exception to tell or suggest to a witness to refrain from discussing our interview or the investigation.

From an earlier post: Banner Health Care 358 NLRB No. 93, the National Labor Relations Board found that blanket “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.

Well, that was bad enough, but if you have been paying attention, things got even harsher.   A recent NLRB ruling, THE BOEING COMPANY and JOANNA GAMBLE, an Individual ,Case 19-CA-089374, JD(SF)-34-13 NATIONAL LABOR RELATIONS BOARD found that even suggesting that an employee refrain from discussing investigations in a routine checklist was a violation of their right to engage in concerted activity in the workplace.  The implications here are very important, in that if as an investigator you are going to either suggest or instruct witnesses to refrain from discussing any part of the process, you must have a SPECIFIC justification, such as a witness with a substantive reason to anticipate reprisal, specific evidence that is vulnerable, evidence of falsehood or a credible basis to think there will be a cover up.  This should be documented specifically before issuing confidentiality instructions.  While many of us grimace at the challenges these rulings create for those of us who’d like tidy statements and limited discussion, we must be aware of our requirements and comply with them.

And, despite my having sent the appropriate citations to tens of people who disagreed with this, let me be clear again that this applies NOT JUST IN UNION SETTINGS, as the rule is precisely formulated to ensure that people have the opportunity to discuss the terms and conditions of their workplace in order to form, or attempt to form unions.

  • Scope Creep is a Dangerous Thing

We all come across things during an investigation that force us to decide whether to fold the new allegations into our investigation or whether to pass them on.  One of the most important evaluative standards here is very simple; if the new allegations represent a more serious set of possible infractions than the investigation you are doing, create a separate inquiry.  Thus, while investigating possible isolated misuse of a company vehicle, you gather data from corporate information systems that reveals widespread misuse of corporate credit cards, finish the limited inquiry and conduct the broad, more serious one separately.  There are several reasons for this, the most pertinent of which is to avoid the minimization or escalation of the initial allegations.  If the alleged misconduct is unrelated (those allegedly misusing the vehicle are not implicated in the credit card allegations) the facts in their “story” should not be conflated with the facts of the allegedly more widespread conduct.  Similarly, if there is overlap in the parties involved, those parties should all be treated equally, rather than have one set of allegations lay deeper suspicion on the others.  More practically speaking, when a series of minor infractions mount up as an investigation is conducted, it is important that the investigation not be prosecutorial, and that minor infractions that would not otherwise have been addressed be given their proper weight.  When, for instance, an incidentally reviewed employee’s email to a colleague indicated that on a particular day she would be “slipping out ten minutes early” for a child’s concert, the investigator wanted to add this to findings as “misusing time.”  This was in an organization that did not maintain time clocks and was known for their focus on productivity over face time.  It was my rather challenging job to convince her that while this could be shared as part of her report, it was prudent to stick to the allegations that were being investigated in her findings of fact, avoiding a “piling on” of things best referred to in credibility or narrative portions of her report.  If she had concerns about repeated infractions, I suggested, a separate investigation would be warranted.

  • Your notes are your notes.

Honestly, whether you type out things verbatim on your PC or scribble lines with a crayon, the notes you take contemporaneously are your notes.  Save them.  You can type them up, you can clarify them, you can correct your grammar and spelling, and you can add the questions you asked to them if you like, BUT SAVE YOUR RAW NOTES.  There is no such thing as “draft notes,” because notes are by nature contemporaneous.  If you choose to make changes, as most of us do (mine are fairly illegible unless I do a quick “clean up” after I interview) make them in a way that is transparent; for instance, if you take notes on a computer, save the originals and then make any adjustments in a different font or a different color.  Save both versions.  If you type them up and “fix” grammar and spelling as you go, staple the originals to the new ones.  Why?  It is a fair question for someone scrutinizing your work to ask if the notes that formed the basis for your report or findings were contemporaneous.  If the answer is “no,” you want to demonstrate that any changes you made were for purposes of clarification, readability or future recall and that you did not substantively change the notes.  Honestly, I recently came across someone who crossed out one thing and wrote another, and when I asked why it had been changed, the answer was, “Because I felt bad I said that.”  Ouch.

Thanks for reading my blog.  If you find it helpful, please share it with others.  Happy New Year.

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Has Your Organization Prepared for Defensible Employment Investigations?

March 19, 2012

Investigative Preparedness

INTERNAL INVESTIGATION COMPETENCE: When an internal investigation is being scrutinized, it’s best to have prepared for the questions that will inevitably be asked. This is an update of an oldie-but-goodie that emphasizes the importance of consistency in practice in defending your investigations.

When it comes to defending investigative techniques, there is a simple standard to which attorneys and their clients should aspire; consistency and reason. For every single action or decision that an investigator takes, that investigator should be able to explain the rationale behind the decision or action, and that rationale should be sufficiently solid that it will dictate not only the investigators actions, but the organizations’ overall practice. Therefore, the practice should be consistent from investigation to investigation, interview to interview and organizational unit to organizational unit. This calls for the establishment of firm, well defined internal investigative practices and training internal investigators to use them.

Some large organizations routinely conduct investigations and have well-established policies and procedures, carefully developed protocol and guidelines for investigators to follow. Many, however, do not. Surprisingly, companies with reputations for being “smart” may not apply their intelligence to how investigations are done, allowing each investigator to pursue matters using their own individual expertise and preferences. This creates significant vulnerability when the organization’s practices are inevitably scrutinized. Then, the inconsistency will be at best identified as a form of sloppiness or at worst as evidence of bias.

Since the majority of organizations do not have full time investigators, and many only conduct a few investigations each year, it is not necessary for every organization to have elaborate manuals and procedures regarding investigations. There are, nevertheless, certain steps organizations should take in preparation to conduct high-quality investigations and to ensure a reasonable level of consistency from investigation to investigation:

Policy Requiring Cooperation
One of the most predictable and frustrating things that can happen in the course of an investigation is the refusal of a key individual to cooperate. This is especially so when the investigator has reason to believe that the reluctant or intransigent individual can provide essential data, it is important to have leverage to persuade employees to be forthcoming. While there are a variety of strategies that investigators can use to be persuasive, employers should have policies in place that require employees to cooperate with employer-initiated investigations. While policies are only words on paper, and threats of discipline for failing to cooperate should only be used as a last resort, this type of policy sets an expectation and a tone which is helpful in orienting employees to their duty to their employer.

Identify an Investigative Coordinator
Complaints are made throughout organizations, and every complaint calls for analysis and decision making about what steps should be taken to address the situation. While most organizations are leery of micromanagement, exposure can be significant in the face of poorly handled complaints. The importance of consistency in practice calls for the establishment of a process by which decisions are at least reviewed, if not made collaboratively with someone who has the “big picture.” That individual can ensure consistency and appropriateness of response. Called an “investigative coordinator” in some organizations, it is this person or persons who should receive reports from all complaints that have been made regarding misconduct or unlawful behavior. These complaints should be scrutinized for similarity to other matters and the manner in which those matters have been handled, thus contributing to consistent levels and types of responses.

Positions and Declarations
There are a number of investigative practices which are debatable – there are legitimate differences of opinion as to whether certain steps should be taken and certain methods used. Organizations should have firm positions on these matters, and they should be adhered to in each and every investigation that is conducted. Exceptions should be well documented and rare.
1. Tape Recording While under certain collective bargaining agreements or public laws, digital or electronic recording is required in employment investigations, in most work environments it is optional. Experts disagree on the value and importance of recording investigative interviews. Those who favor them point to the absolute certainty there can be independent verification of what was said, and the convenience of reviewing the tapes rather than relying on note taking. Opponents argue that recordings can provide fodder for manipulation (“what was happening during that long pause?”) and create a chilling effect on the interview. Many organizations record interviews and many do not. There should be consistency in this practice – if recordings are to be made, there should be clear technical requirements and ample equipment should be made available to investigators. Protocol for storage of tape or digital files must be established (i.e. for digital recordings, encryption standards). Most importantly, if recordings are to be made, they must be made for each and every interview conducted within an investigation.
2. File Review Investigators find that reviewing personnel files can be illuminating and helpful for a variety of reasons – however the timing of that review can be important. If an investigator reviews personnel files prior to interviewing parties, information might come to his or her attention that could be highly prejudicial and create bias.
Gerry has made a claim of inappropriate conduct towards his supervisor. In a routine review of his file, you find that he was suspended two years ago for coming to work under the influence of alcohol.
While one can declare that they are able to put aside impressions gained from possibly unrelated information, it might be argued that avoiding the situation altogether is preferable. Therefore, some organizations instruct investigators to only review personnel files after interviewing the subject. Of course, the argument against this is that should the file reveal substantive and previously undisclosed information, that a second interview might be necessary, thereby making the process less efficient. As with tape recording, this is an endlessly debatable matter, but organizations should have firm procedures for the timing of personnel file scrutiny.
3. Number of Investigators Particularly if investigators are not highly experienced, organizations might institute a policy that all interviews are conducted with two investigators present. Usually this is structured so that one individual asks the questions while the other serves as a mute observer and note taker. Some organizations believe that putting two investigators in a room with one subject can be intimidating and puts a damper on the rapport and intimacy necessary for an investigative interview. Defining the circumstances under which “two on one” and “one on one” interviews are conducted is essential. It is most essential that if a two-on-one model is used in any single interview, that it be used in all interviews in a particular investigation, and even better if it is used in all investigations.
4. Document Retention and Destruction Much fuss can be made about the contents of an investigative file. Organizations should ensure that from matter to matter that investigative files contain similar documents. Most important, there should be clear standards for retaining and destroying documents. Many investigators “clean up” or “fill in” their notes immediately following an interview. For instance, someone who has used abbreviations might fill in the full words to ensure that they will properly recall what was said – or misspellings might be corrected in notes made on a computer. It is essential that investigators have clear guidelines regarding the retention of prior versions of notes under these circumstances, and it is generally recommended that those prior versions be retained. Other record retention issues include the proper designation and labeling of documents considered to be privileged, the retention of drafts of reports or memoranda, and the appropriate handling of documents and items examined but which must be returned or otherwise disposed of.
5. Third Party Presence The presence of a third party (or a fourth party in the case of two-on-one interviews) is sometimes outside an organization’s control, such as an employee exercising Weingarten rights in a union setting. Many organizations relinquish what control they do have unnecessarily or by default. A careful review of Weingarten leaves several issues in the hands of the employer; for instance, an employer is not under any obligation to inform an individual of the right to the presence of a union representative unless that has been agreed to contractually. An employer has reasonable control of the interaction between the union representative and the employee during the interview. Some organizations take the position that you can never give employees too many rights, and provide notice to employees prior to or at the time of the interview that they are entitled to union representation. Others live by the letter of the law and only provide representation when it is requested in accordance with Weingarten. This is a matter of organizational policy and philosophy. Inconsistency in this area is problematic, and should be avoided by taking a clear and organized approach to union representation. This should include seating arrangements (will the union representative sit next to, or behind the employee?) and protocol for allowing consultation or participation (under what circumstances can the union representative initiate a consultation?)
In nonunion environments, employers have broad discretion as to whether and when employees might have a “support person” or “witness.” Some argue that this permission creates a higher level of faith in the investigation for employees and they point out that employees rarely exercise the permission if it is given. Others feel that an uninvolved third party’s presence merely increases the risk of information being shared inappropriately and that it does not offer any benefit to the organization or the parties.
Finally, most organizations take the position that attorneys are not permitted to be present when the employees they represent are interviewed in an internal investigation, however when the employee’s cooperation hinges on the presence of the attorney, some exceptions are made. It is important to have the individual or individuals who can authorize such exceptions clearly spelled out. In many organizations, the decision is made that if an attorney must be present for an essential interview to occur, that in house counsel will also be present.

Consistent Forms and Notices

Organizations are well served by creating consistent documentation to ensure investigative consistency and integrity. While not every step in an investigation is well served by filling in a form, organizations should consider putting the following in place:
1. An intake form An effective intake is essential for a smooth investigation. It is often very helpful for managers and supervisors, when being trained or instructed on the taking of complaints, to be provided a form that helps them conduct the intake in the proper manner. Once that form is completed, it should be sent, either by fax or electronically, to whomever serves as the organizational clearinghouse or complaint management. This is usually a human resources professional but can also be counsel or another designated party. Once received, the party serving as the clearinghouse can respond with a simple acknowledgement, can initiate a telephone consultation to ensure proper handling occurs, or can initiate a higher level intervention, such as an investigation. This transaction should then be documented on the intake form in the hands of the clearinghouse, and any follow up noted by either the initiating party or the clearinghouse. The result is a solid record of the complaint and a solid record of the action taken in response to the complaint. Because managers and supervisors recognize their liability of they are viewed as having ignored or failed to properly address certain complaints, they recognize that forwarding the form provides them appropriate protection and corroboration that action was taken.
2. Notices checklist There is a great deal of information to be transmitted at the outset of an interview, and therefore a great deal of information to be absorbed by the interviewee. In some cases, the information provided or not provided becomes a source of criticism of the investigation and its integrity. Subjects can claim that they were misled as to the purpose of the interview, or were guaranteed confidentiality that was then not honored. For this reason, it is wise to create a “checklist” of notices to be reviewed with interviewees, and which they can take with them at the conclusion of the interview. This checklist should include a review of the purpose of the interview, conditions for sharing or not sharing information, instructions regarding reprisal, explanation of how notes will be used and retained, advice or instruction regarding discussion of the investigation or interview with others, and notice as to the possible consequences if it determined that any party has violated policy. With a stable set of notices, investigators can practice reviewing the detailed information in a helpful and conversational way, and by asking interviewees to check or sign each item, help the interviewees to focus on essential information. The signed version of the checklist should be retained in the investigative file and a blank form offered to the subject for their own records. In the case of telephone interviews, there should be an effort to transmit the document to the interviewee at the time the investigation is commenced, and to receive a verbal affirmation of each item, which can then be recorded in the investigator’s notes.
3. Cover or summary sheet Since investigations are generally concluded months or even years prior to the time that discovery proceedings might call upon the investigator to recall them, a summary sheet can serve as an aid in recollection. A cover sheet should identify the complainant, witnesses and respondents, include a list of evidence reviewed (at least generally – a very detailed list should be included in the file), the period of time during which the investigation was conducted, and the date a report was issued verbally and/or in writing. Optionally, a brief summary of the allegations and findings can be incorporated into this summary sheet.

Smart Technology
Increasingly, employees leave “electronic footprints” that become valuable evidence in investigations. E-mails, cell phone records, pager history, web forms, IM’s and SMS messages are among the many types of records that are useful to investigators. Since these are generally produced and retained on employer-provided equipment, it is wise to plan for the discreet and prompt seizure of such records. Retrieval of SIM cards, backing up e-mails sent and received to ensure they are not deleted from the system, capturing cookies and browser history, retrieving data card records and obtaining surveillance tapes where appropriate should be anticipated well in advance of a need to investigate. A person with expertise in information technology should be able to institute investigative data retrieval with a simple request from the appropriate authority, and at that point, electronic records should be frozen (unalterable) and seized.

Written Statements

Employees who participate in interviews, as well as employees who bring complaints are either explicitly told or generally understand that they are providing information that will be scrutinized by the employer. Most interviewers also ask interviewees to in some manner attest that their statements are truthful. While interviewers are expected to take detailed notes, some employers believe it is appropriate to also have employees attest to a written document. This may take the form of a written statement prepared entirely by the interview subject or complainant, or, at the opposite end of the spectrum, a statement prepared by the investigator and based on the investigator’s notes. On the other hand, other employers do not generally use written statements, arguing that the verbal statement is sufficient, written statements are more burdensome and disadvantage the less literate, or that written statements eliminate an employee making a legitimate “correction” to an answer they gave in the stress of an investigative interview. Other employers counter that employees asked to sign a more formal document will be less likely to fabricate or to make spurious statements. One of the most highly debated investigative conventions, written statements or signed statements it should nevertheless be a practice that is consistent within any organization. What should also be clear to supervisors and managers is that when an employee complains, the employee’s reluctance or refusal to prepare a written statement does not affect the employer’s obligation to investigate.

In a large, decentralized organization, it is particularly helpful to have a rudimentary investigative protocol. There is no excuse for “unnecessary uniqueness” in an area where fairness, consistency and clear thinking are the hallmarks of defensibility.

Let me know your thoughts about what I have to say!


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.


The Diminishing Value of Apology: Changing the Script of Conflict Resolution

March 18, 2010

“I am sorry. What I did is wrong. I take full responsibility.” These words have been echoing through the media as one public figure after another goes through the now-ritualized public apology, often for behavior that might, in a previous time, been deemed private. The statements more often than not lack authenticity, as though pulled from a grand script of remorse, as though the words somehow will move forgiveness forward, as though they are the formula to exoneration. The more these words are uttered, the more cliche they become, and the less value they are likely to have in bringing about true resolution of the problems being apologized for.

Workplace apologies are needed. In years past,people whose work life had been disrupted by the misconduct of others were often looking to regain what they’d had before the misconduct. “I just want things to go back the way they were,” was a familiar plea by those who’d been wronged by others. In those cases, the remedy was sometimes a facilitated dialogue and a sincere apology, and, with managerial fingers crossed, life could possibly go back to normal with proper monitoring and coaching. Read the rest of this entry »


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