Author: Rick Bell

Today’s workplace seems to have become a battleground in the culture wars. Will your employees embrace workplace diversity or will they feel embattled?

The workplace is the most prevalent arena of so-called forced diversity. That’s not intended as a criticism or qualitative assessment. To the contrary, properly understood and directed, the reality can be a positive development. Rather, the observation notes the following reality — the workplace is both where we spend the greatest amount of time outside the home and where diversity is thrust upon us more than in any other place.

Reasonable people can see the benefit of embracing diversity — diversity of thought, culture and experience. We learn much from each other. The pace of social change — reflective in the workplace — was intentional and deliberate in the past. It started perhaps before 1964, but certainly no later than that year with the passage of Title VII of the Civil Rights Act.

The pace of social and cultural change has accelerated dramatically recently with several developments:

• The Supreme Court recognized same-sex marriage, and that ruling has expanded social relationships on which some workplace policies and benefits depend, such as the Family and Medical Leave Act and employee spousal benefits.
• The Equal Employment Opportunity Commission and other government agencies now interpret the phrase “sex discrimination” — which has been used in various laws, regulations and executive orders since 1964 — as prohibiting discrimination on the basis of sexual orientation and gender identity. The Affordable Care Act’s non-discrimination mandate recently was interpreted to require a health plan to cover gender transition medical treatment. These new interpretations have impacted the workplace — from harassment policies to bathroom access to procedures covered by insurance.
• Technology and social media allow people to work anywhere, and many people work everywhere. These advances allow employees to broadcast opinions to a wide audience, including co-workers. The lines between “on duty” and “off duty” are blurred, and broadcasting personal opinions among a large group of fellow workers can impact workplace relationships and taint the workplace environment — and yet these activities have been interpreted as “protected concerted activity” for which an employer may not be able to take any discipline.
• The mounting importance of “feelings” in the culture, with a corresponding expectation (albeit unrealistic) that workers should be free of any conduct they find insulting, unaccepting or challenging to their viewpoint.

The Tension

These legal and social changes create tensions that are a huge challenge for employers. The differences in this “forced diversity” are no longer limited to race or gender, but are also reflective in more divergent religious views, ethnic origins, sexual preferences, gender identities and widely divergent political persuasions.
But, as with all challenges, a savvy employer realizes that this challenge also presents an opportunity: Meeting this challenge effectively can be a difference-maker and can provide a means of recruiting and retaining quality talent.

Can employers effectively meet this challenge with the adoption of more policies? Not likely.

As the culture changes more rapidly, many employers — and those advising them — cry that handbooks must be reviewed and policies must be revised. While a team-oriented workplace requires occasional policy review and revision, this approach does not provide an effective solution. Why? The answer is multi-faceted:

• No rule, law or policy transforms behavior at its most needed level. Those will only suppress behavior. Fear of discipline becomes the primary motivator. In a fear-based environment, compliance is at risk, cover-up is more likely and the complaint process loses integrity.
• According to the National Labor Relations Board, broad civility codes violate Section 7 of the National Labor Relations Act; that is, policies with broad expectations of a “positive workplace environment” violate employees’ rights to object to, and confront management about, pay practices or working conditions.
• Revising a policy does not address issues of unprofessional or inappropriate conduct. For example, consider this scenario: Employee Jane, a Caucasian, sees co-worker Natasha, an African-American, with a new hairdo. Jane compliments Natasha but then asks if the hair is “really hers.” Jane means no offense but is clueless as to how this question sounds to Natasha. Natasha appreciates the compliment but sees the comment as reflective of Jane’s inherent bias. Natasha complains. Yet, no “rule” or “policy” has been broken. The statement was a compliment and at most, was ambiguous and not expressly reflective of bias. A “rules-first” mindset would not prompt any action. But, that approach would not be responsive to the battle brewing.

So, is more training the answer? Recently announced findings of an EEOC task force say no. After a long and detailed study, the task force found that training requirements were not effective in curbing incidents of harassment.

As one who has attended, and presented, many training sessions, this finding is not surprising. Much training — perhaps most training — focuses on a “rules first” mindset. The training announces the rule, law or policy and then instructs employees or managers that the company has a “zero tolerance” for violations. The message is “comply or else.” Worse yet, the training leaves the impression, expressly or implicitly, that the company’s interest in training is merely as a defense in any future lawsuit.

Nonetheless, the task force recommended that employers still conduct training. Part of the answer is more training, but of a different sort. It must equip employees with a more powerful narrative than fear or litigation risk avoidance.

Practical Solutions

Wise employers have recognized the differing constituencies in the workplace and have begun evaluating how to balance the needs and rights they present. Savvy management knows that true leadership involves managing relationships in a way that promotes the desired workplace narrative. For example, a savvy manager, when faced with the scenario of Jane and Natasha above, would not ignore the situation. No rule was violated, but the more important relationships within the workplace have been strained.

Practical solution No. 1. Focus on relationships, not rules. A rules-first mentality is misguided. No employer’s policy can anticipate all circumstances the human condition can present. Rules are important, and in almost all situations they should be enforced. But a wise employer avoids the entrapment of a “rules-first” mindset and recognizes that its policies serve as important guidelines to foster and promote cohesive, efficient, positive workplace relationships. On occasion, uncritical enforcement of policies may actually undermine those relational objectives. Rules, and their enforcement, must serve relationships, not the other way around.

Practical Solution No. 2. A well-run and efficient team is truly “other-minded.” An employer must encourage those within workplace relationships to affirm what they hope is the best in others, rather than focusing on what they fear is the worst. This conflicts with our me-first world. The culture has elevated to idolatrous levels a person’s feelings.

While no rule was violated, Jane still needs coaching. Jane needs to understand that her comment could be viewed by others as revealing an underlying bias (would she have asked such a question of a Caucasian co-worker?). Plus, if Jane’s cluelessness continues to manifest itself in insensitive comments (or if Jane is a manager and thus arguably should be held to a higher standard), then the employer should conduct higher levels of coaching or discipline.

But, likewise, Natasha needs coaching, too; she needs to work on accepting Jane’s comments in the spirit offered; recall Jane intended a compliment, not an affront. The standard of perfection — or better stated, Natasha’s expectation that Jane will harbor no inherent bias — is a standard of judgment that Natasha cannot satisfy either. Neither humans, nor workplaces — filled as they are with humans — can withstand being judged under a standard of perfection. When people are offended by statements, we must evaluate both the cluelessness (or worse, the inappropriate bias) of the speaker and also must evaluate the perhaps too-heightened sensitivity (or worse, the biased interpretation and lack of grace) of the hearer. Failing to do so will sow seeds of the very weeds we are trying to uproot.

Practical Solution No. 3. How does an employer encourage employees to affirm what they hope is the best in people and not focus on what they fear is the worst? An employer must reinforce that all work has dignity and that all workers have dignity and deserve respect.

Today’s workplaces are filled with not-so-subtle “caste systems.” There are white collar jobs and blue collar jobs; there are salaried and hourly workers. In hospitals, there are doctors and nurses (and now physicians’ assistants, RNs and LPNs), and techs and housekeeping. These various job titles lure workers into caste-system thinking; some, especially those in the more prestigious roles (i.e., the higher-paid ones) may be lured to feel superior to others in the seemingly less significant roles. But, if someone does not properly clean the countertops in a patient’s room, patients will die of infection.

Dare we, in this culture, advance a narrative that all work has dignity? If an employer fails to do so, any talk of a “team” concept rings hollow. And, if an employer can promote effectively the perspective that all work has dignity, then workers will readily see that all workers have dignity and deserve respect.

Practical Solution No. 4. If all workers deserve respect and dignity, then performance management is required. If a manager knows an employee is on an unsuccessful path, and yet says nothing, that manager is not being respectful of the employee. In fact, saying nothing could be another form of bias — the soft bigotry of low expectations.

There is a duty for a manager to act in addressing, and redirecting, the employee to a more successful path. But how? Is it OK to be angry at such poor performance? Yes. But follow one of Martin Luther King Jr.’s principles of non-violence — be aggressive toward problems not people. Proper coaching is not manager versus employee, although the employee may initially feel that way. Rather, proper coaching is manager and employee versus the behavior leading to an unsuccessful outcome.

Practical Solution No. 5. A manager conducting this coaching must be willing and able to recognize and to confess that she too fails to meet this standard on occasion. That is, the manager must approach the performance management process with humility. The manager must recognize that she too has some flaws that prevent her from perfectly fulfilling the standard she espouses.

If the workplace is built upon a fear motivation, these solutions are not possible. Often, those who try to motivate by fear are fearful themselves. Fear is neither an efficient nor a successful motivator. Fear as a motivator sprouts from a rules-first mentality. An employer must evaluate and articulate the relational purposes that the rules are designed to serve and advance those objectives. This analysis necessarily will eliminate (or at least ease) a fear-based environment and focus more on the relationships being served. Focusing on the purposes the rules are designed to serve will result on occasion in an exception to the rules.

But those exceptions will occur in the limited circumstances when the purpose behind the rules is served more effectively by making an exception rather than enforcing the rule.

Tim Garrett is an employment law attorney with Bass, Berry & Sims in Nashville.