Category: Commentary & Opinion

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Equal Pay Day and Voting with Your Feet

April 4 was Equal Pay Day. It’s not a bank holiday, so no one got to stay home from work, but it is an important date for women.

LeanIn.org, the nonprofit Facebook COO Sheryl Sandberg created to make the workplace better for women, launched its latest campaign/hashtag on the 4th. Joining #BanBossy and #LeanInTogether, #20PercentCounts shines a bright light on the fact that, on average, women make 20 percent less than men in the U.S.

According to the Forbes piece where I learned about the campaign, that stat is quite a bit worse if you’re a woman of color. Black women make 37 percent less, and Hispanic women make 46 percent less. Over the lifetime of a woman’s career that disparity could cost her a good half million dollars.

Ouch. I’m bleeding over here, metaphorically speaking. But, in an effort to stem some of the pain, starting on the 4th hundreds of companies around the country are offering a 20 percent discount to draw attention to wage disparities.

That’s great. But you know me. I want to know why. Why does this pay gap still exist? Why are so few organizations correcting these obvious inequities? They know about the problem; the data certainly isn’t a secret. The scope of the issue is not small; it touches every industry with the possible exception of the fashion industry; female models traditionally make more than their male counterparts.

Even if companies could reasonably pretend ignorance President Obama publicly tried to put us on the path to financial parity. Though his efforts have been neatly undercut, or should I say revoked, by the current administration.

So why the whole ostrich act? It’s a complex answer related to widespread workplace culture change, budgets, leadership accountability, commitment to diversity and inclusion and a host of other strategic concerns that impact most dimensions of diversity in some shape or another. But the short answer is, companies don’t want to fix this problem.

But here’s the thing. Women are fed up, and we’re speaking out. Executives like Sheryl Sandberg, actresses like Jennifer Lawrence, Emma Watson and a host of others — including some big name men — are creating a stink that could have direct implications for the talent marketplace.

So, diversity and talent leaders, if your company isn’t making an effort to make its pay practices fair, you’ve been officially put on notice. Do it, or you will lose talent, you will lose discretionary effort, you will lose engagement, productivity and more. You will incur negative costs related to turnover, retention, recruiting, litigation and brand reputation. All it takes is one tweet or video to go viral, and your standing in the global marketplace will take a hit so big it’ll make a gunshot look like a scratch.

Ask Lyft. It has been thoroughly enjoying the customer-related fruits of Uber’s female-centric missteps. Ask Pepsi. That team can tell you what happens when you make light of the issues that minorities care about. And women — all numbers aside — are very much considered minorities.

We’re also not stupid. We know the only thing standing between us and a fair wage is desire. If I’m not being clear, I’m saying: Women aren’t being paid the same salaries as their male peers for the same work because companies don’t want to pay them the same salaries as their male peers for the same work.

Companies don’t want to invest the time or the resources to investigate and identify pay inequities and root out the issues that perpetuate this cycle of discrimination. That would take time, effort and require a ton of change, and we all know change is rarely easy for any person, let alone an entire organization.

Companies don’t want to acknowledge that they may be — are — systemically cheating a sizeable chunk of their workforce out of their hard-earned pay. It could throw the door to legal sanctions wide open, bring the wrath of a thousand lawsuits down on their heads, not to mention giving women ideas about what else they deserve in the workplace.

But companies are going to pay one way or the other, whether in cash or in kind. Think about this scenario.

A hard-working woman with great ideas and a knack for business development requests a raise after learning her male peer is making more money than she is. She is denied. She leaves, starts her own company, and many of the clients she brought to her former employer choose to leave with her. See, they know where the talent and creative juice comes from.

She pulls so much business away from her old employer they have to hire her as an external consultant to get back some of that innovative, market savvy they shortsightedly let go. Her rate as an independent operator is triple — or more — what it was when she was an employee.

I didn’t just make that story up. It happens all the time because more women than ever are choosing to leave the workforce and start their own businesses.

Companies have a choice to make. Will they pay on the front end — top talent recruiting, brand reputation, customer loyalty — or will they pay on the back end — legal fees, turnover, retention issues? Will they acknowledge that pay gaps exist and do the work required to close them, or will they turn a blind eye and unwittingly encourage their female talent to vote for a better way of life and career with their feet?

It’s up to talent leaders to decide how and when they’ll take that bitter pill, and whether or not they’ll choke while it’s going down.

Kellye Whitney is associate editorial director for Workforce. Comment below or email editor@workforce.com.

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Promotion After Protected Activity Dooms Employee’s Retaliation Claim

Jon Hyman The Practical Employer

What does unlawful retaliation not look like? Burton v. Board of Regents of Univ. of Wisc. Sys. (7th Cir. 3/17/17) offers a good example.

Sabina Burton, a tenured track professor at the University of Wisconsin, claimed that she suffered retaliation after complaining about witnessing sexual harassment within her department. As a result, she claimed that her colleagues withdrew support for a new curriculum for which she had been advocating. Ultimately, however, the court concluded that a promotion and pay raise after Burton’s claimed protected activity doomed her retaliation claim.

Professor Burton undoubtedly feels that she has been treated unfairly by some of her superiors at the University because she reported alleged harassment and proceeded with this case. Yet the record does not support her claims. During the relevant period, Burton was granted tenure by a unanimous vote and the University held a public ceremony celebrating Burton’s receipt of a grant from AT&T. Dean Throop even sought an upward salary adjustment for her after she had brought a charge with the Wisconsin ERD. Burton’s frustrations may be significant, but they do not amount to actionable retaliation.

 This court (correctly, in my opinion) concluded that no reasonable juror could find that an employer which promotes an employee only months after an alleged harassment complaint would nevertheless harbor a retaliatory motive.
The lesson here is not to promote or give a raise to every employee who engages in protected activity. Instead, take away this lesson. At the end of the day, retaliation and discrimination cases hinge on a “more likely” standard. In considering the totality of the evidence, is it more likely than not that the employer retaliated/discriminated against the employee? That burden becomes difficult for an employee to overcome when an employee — despite some slights and unfair treatment following protected conduct — enjoys subsequent benefits.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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A Lesson on Workplace Posters From of All Places, ‘Homeland’

Jon Hyman The Practical Employer

If you’re on the Showtime TV feature “Homeland” and operating a covert, CIA backed, sock-puppet misinformation operation, where do you hang your workplace posters? In your interrogation room, of course.

State and federal laws require that all employers have posters conspicuously placed in the workplace.
What posters are you required to post? There are a bunch, although your mileage will vary based on which statutes cover your business and which do not.
  • Employee Polygraph Protection Act (all employers)
  • Employee Rights for Workers with Disabilities/Special Minimum Wage (all employers with disabled workers employed under special minimum wage certificates)
  • Equal Employment Opportunity is the Law (all employers with 15 or more employees, and all federal contractors and subcontractors wtih contracts of $10,000 or more)
  • Equal Employment Opportunity is the Law Supplement (all federal contractors and subcontractors wtih contracts of $10,000 or more)
  • E-Verify Participation and Right to Work (all employers participating in E-Verify)
  • Fair Labor Standards Act (all employers)
  • Family and Medical Leave Act: Your Rights Under the FMLA (all employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year)
  • Federal Minimum Wage for Contractors (all employer who contract with the federal government)
  • Notification of Employee Rights Under Federal Labor Law (all federal contractors and subcontractors)
  • OSHA Job Safety and Health: It’s the Law (all employers)
  • OSHA Form 300, 300A, and 301 (most employers with 10 or more employees)
  • Uniformed Services Employment and Reemployment Rights Act: Your Rights Under USERRA (all employers)
  • State Minimum Wage (all employers)

Additionally, states have their own additional posting requirements. The good news is that all of these posters are available for free from state and federal agencies. Just make sure they are posted conspicuously, which, “Homeland” not withstanding, is likely not in your locked interrogation room.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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Historic Ruling Bans Workplace LGBT Discrimination

Jon Hyman The Practical Employer

If you spend any time reading or watching the news today, you will inevitably encounter much about the 7th Circuit’s historic (and correct, in my opinion) decision in Hivley v. Ivy Tech Community College [pdf]. You can read the background of this case here.

The court expressly held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Hivley now stands in direct contradiction to the opinion of the 11th Circuit in Evans v. Georgia Regional Hosp., which sets up this issue for a showdown in the Supreme Court.

Which turns my attention to the more interesting aspect of this case — the court’s discussions of the role of judges in interpreting statutes. Much was made about this issue in the recent Senate hearing on the nomination of Neil Gorsuch to fill Justice Antonin Scalia’s Supreme Court seat. On this issue, this court has a lot to say.

Let’s start with the concurring words of Judge Richard A. Posner (which include a not-so-veiled shot at Fox News and its view of originalism in statutory construction), who astutely explains that one can act the judicial conservative and interpret original statutory intent as changing with the times.

In 1964 (and indeed until the 2000s), and in some states until the Supreme Court’s decision in Obergefell v. Hodges, men were not allowed to marry each other, nor women allowed to marry each other. If in those days an employer fired a lesbian because he didn’t like lesbians, he would have said that he was not firing her because she was a woman — he would not have fired her had she been heterosexual — and so he was not discriminating on the basis of sex as understood by the authors and ratifiers of Title VII. But today “sex” has a broader meaning than the genitalia you’re born with. …

But it has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination. It has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles. …

We now understand that homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations) are normal in the ways that count, and beyond that have made many outstanding intellectual and cultural contributions to society … . We now understand that homosexuals, male and female, play an essential role, in this country … . The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose “interpretation” of the word “sex” in Title VII to embrace homosexuality: an interpretation that cannot be imputed to the framers of the statute but that we are entitled to adopt in light of (to quote Holmes) “what this country has become,” or, in Blackstonian terminology, to embrace as a sensible deviation from the literal or original meaning of the statutory language.

Compare this definition of “originalism” to that of the dissenting opinion of Judge Diane S. Sykes:

Of course there is a robust debate on this subject in our culture, media, and politics. Attitudes about gay rights have dramatically shifted in the 53 years since the Civil Rights Act was adopted. … This striking cultural change informs a case for legislative change and might eventually persuade the people’s representatives to amend the statute to implement a new public policy. But it does not bear on the sole inquiry properly before the en banc court: Is the prevailing interpretation of Title VII — that discrimination on the basis of sexual orientation is different in kind and not a form of sex discrimination — wrong as an original matter? …

But the analysis must begin with the statutory text; it largely ends there too. Is it even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination “because of sex” also banned discrimination because of sexual orientation? The answer is no, of course not. …

To a fluent speaker of the English language — then and now — the ordinary meaning of the word “sex” does not fairly include the concept of “sexual orientation.” The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning. …

The words plainly describe different traits, and the separate and distinct meaning of each term is easily grasped. More specifically to the point here, discrimination “because of sex” is not reasonably understood to include discrimination based on sexual orientation, a different immutable characteristic. Classifying people by sexual orientation is different than classifying them by sex. The two traits are categorically distinct and widely recognized as such. There is no ambiguity or vagueness here.

This debate over the meaning of originalism will resume when this issue reaches SCOTUS, and will likely hold the key to how SCOTUS decides whether Title VII’s definition of sex includes LGBT rights. Of course, Congress could moot this entire issue simply by amending Title VII, but I don’t see that happening anytime soon.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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Aligning Intent and Impact for Powerful D&I Results

Getting crystal clear about your goals and intentions — personally as well as professionally — is the first critical step for diversity and inclusion practitioners and champions to obtain powerful results. Once goals and intentions are clear, D&I change agents should take two more crucial steps:

Step 1: Go out and have an impact!

1. Always stay centered and grounded in your intention or goal. Advocate, take a stand, make decisions, show leadership, and demonstrate behaviors that reinforce progress in D&I based on costs, benefits and your organization’s unique, mission-critical DROI (diversity return on investment).

2. Be realistic and honest with yourself about the required foundation for success. For D&I to work and for you to have powerful, positive impacts, you must have:

  • Leadership buy-in from the top, which goes beyond lip service to commitments in time, resources (human and budgetary), and meaningful action.
  • Political and personal will from formal and informal leaders and stakeholders.
  • A belief among leadership that change is possible, and within their power to co-create — an optimistic, proactive approach instead of reactive, apathetic, or victim mentality.
  • A belief that change is not only possible but necessary (per the costs and benefits and your DROI).
  • Courage and resources to endure the difficulties of change and the inevitable conflict and upheaval that will take place.
  • A crisis (hopefully not, but this is often a key motivator). Be prepared if you think this is imminent!
  1. 3. Celebrate, even tiny successes and triumphs. Remember that it took women over 100 years to get the vote. Many of the women who demonstrated, went to jail and endured beatings for a basic right now taken for granted never got to vote themselves because they died before it became a reality. Realize this journey may be a marathon. Pace yourself. Stop every mile and do a victory end zone dance and have a piña colada, then keep running until the next mile or pit stop! Don’t just trudge on to some distant finish line, endlessly in agony, unwilling to appreciate small miracles.
  2. 4. Be prepared to walk away, and know when that is. Don’t sap your brilliance and precious energy on a losing battle. There is much work to be done. Don’t waste yourself on an impossible or untenable situation — you’re needed elsewhere! And maybe someone else is a better fit for the current reality. Be clear about where your line in the sand is and let it shift, but don’t cross it. Having a clear sense of self and integrity will keep you from compromising or diluting the goals of the initiative, which are more important that you are (another reason to make sure to do your “personal work”).

Step 2: Call out misalignments of intent and impact and course correct!

1. Notice and record ways your organization or individual leaders are having an impact. Do they align with stated goals and intentions?

2. Assume good intentions. Unless you’ve gathered a significant amount of data over a long period of time to the contrary, assume others mean well. If you can’t assume good intentions, check your assumptions by tactfully asking what the intentions were. If you are certain there are bad intentions, go back to Step

3. Address impact.

  • Call out the misalignment of intent and impact (in the appropriate setting using emotional intelligence and political savvy) by stating facts: (a) here is what we said we would do, or who we say we are, (b) this is what happened, or this was the impact. Observations are facts. Data (like employee or customer satisfaction survey results or employee retention data) are facts. Stories and emotions are also facts, because they are true accounts of a person’s experience. Avoid questioning intention or an individual’s motivations. Terrible impacts can be had with noble intentions. Always stay focused on the goal at hand and whether or not it’s being met. Addressing the problem this way is effective even when there is little trust and respect. It can also serve to build trust and respect, which may lead to deeper conversations (perhaps about intent). Consider using a model like PNDC or Crucial Conversations.
  • Apologies may be necessary, but insufficient. You must still address impact, correct behaviors and make amends. Here’s a metaphor: “You stepped on my foot and broke my toe. You’ve apologized for breaking my toe (thank you), but now what are you going to do about getting me to the hospital and paying for my medical care?” You might need input on what kinds of amends and corrections you need to make.
  • Collaborate and problem-solve with ALL stakeholders to find ways to course correct and create better impacts. Make a plan. Agree on action items, a timeline, who is responsible for what, and when/how there will be follow up, and how all parties will be held accountable.

Following these steps will better align intent and impact for you and your organization to experience more powerful results around D&I. Please share your triumphs, challenges and further questions below!

Susana Rinderle is president of Susana Rinderle Consulting and a trainer, coach, speaker, author and diversity & inclusion expert. Comment below or email editors@workforce.com.

 

 

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The Adverse Action Standard for Retaliation Is Low (But Not This Low)

Jon Hyman The Practical Employer

The legal standard for an “adverse action” to support a claim for workplace retaliation is pretty low. How low? According to the Supreme Court, an adverse action sufficient to support a claim for retaliation is any action that would dissuade a reasonable worker from complaining about discrimination.

But, is does it reach this low? In Bien-Aime v. Equity Residential (S.D.N.Y. 2/22/17), a federal court concluded that two managers’ general rudeness toward the plaintiff, which started only after the plaintiff filed a civil rights complaint, stood as a sufficient adverse action to support his retaliation claim.

What kind of rudeness? I’ll let the court explain:

Eichinger “stopped saying good morning” to him; Sec “totally change[d]” in the way he spoke to him and spoke to him without a “warm welcome” in his voice; Sec continually monitored him at work; Sec asked him about two instances in which he incurred employee overtime without prior approval; and Sec and Eichinger talked to him like he was a criminal.

Yup, they no longer said good morning and spoke to him in less friendly manner. While the court conceded this was “a close question,” it believed a jury, and not a judge, should decide whether this change in demeanor qualified as an adverse action.
With all due respect to this court, the legal standard for an adverse action, is not mere adversity, but material adversity. As SCOTUS correctly explained:

We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” … An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience … . It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers … . And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence … .

Someone convince me that the acts of these managers as alleged in Bien-Aime are anything other than “petty slights, minor annoyances, and simple lack of good manners.” The floor is yours.

1. Thanks to Matt Austin Labor Law for tipping me off to this case.
2. The irony of the fact that the plaintiff’s surname translates to “well liked” is not lost on me.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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One Employee Says He’s Sick of Wellness Carrots and Sticks

personal genetic information
Not everyone is onboard with HR 1313, which allows employers to offer lower insurance premiums for employees who share their personal genetic information.

Last week I posted a news brief about a new bill that caused some controversy. That bill, the Preserving Employee Wellness Program Act, or HR 1313, would allow employers to offer lower insurance premiums for employees who share their personal genetic information with their employer.

Kurt Schanaman, a freelance technical writer and roofing supply specialist in Gering, Nebraska, left a comment on my story as an employee concerned about his privacy. So I asked him to write a little more about his position on this topic.

[Read: “New Wellness Bill HR 1313 Gets Flak for Genetic Privacy Concerns”]

[Read: “Swapping DNA for Lower Insurance Costs Is One Wellness Step Too Far”]

Supporters of HR 1313 point out that sharing one’s genetic information is in fact voluntary. The opposition states that although not technically forced, they are being coerced. Schanaman’s argument is a fleshed-out version of the latter. “If a person feels coerced into signing away rights to his or her body and possessions under threat of financial (or other) penalties, it is an abrogation of that person’s rights entirely and ceases to be truly voluntary,” he wrote.

Below you can read his argument, edited for clarity and space:

“In August 2016 I was informed by my employer that I must choose to do a health risk assessment survey and submit to an annual biometric physical to qualify for the lowest possible health insurance premium for 2017. Included in the packet was a form I was to sign and provide to the medical practitioner so that my sensitive health data could be shared with a third party composed of people I don’t even know. Since I was facing up to a thirty percent premium increase for refusing to sign that paper and participate in these intrusive requirements, I realized that this amounted to a punitive form of coercion against me. There was no way I was going to sign away constitutional privacy rights to my medical (and soon, genetic) data to complete strangers.

“Human resources in today’s corporation would be in for a shock of a surprise were they to visit the workforce to ask how people feel about these outcome-based wellness programs with incentives (carrots) and disincentives (sticks). They may also be surprised to find out that workers are beginning to visit amongst themselves over these coercive encroachments on their privacy rights. It can be reasonably expected that before long, HR departments are going to learn that a large grassroots action campaign is brewing against them for implementing such draconian, intrusive rules. There is going to be a political backlash in 2018 over this also.

“None of these things will likely be realized by human resources officers, however, until enough workers have finally dumped their health benefits altogether in protest of such inhumane, unconstitutional practices. Such protest has already begun since I, and others, have started to notify workers across this nation about their constitutional privacy rights to this data, how valuable it truly is, how it can be abused or stolen and distributed via hacking and commercially backhanded activities, and how once a person has signed away rights to medical and genetic privacy (such as that which will be allowed to be asked for via bills like the ‘Preserving Employee Wellness Program Act – H.R. 1313’), all control is lost and the signing away of that information can never be undone.

“Human Resources should reconsider their actions. The proverbial ‘cat’ is out of the bag.”

Indeed, when I first began reporting and blogging about wellness, the disagreement over incentives was one of the first things I discovered and have heard a lot about ever since. The basic question is, by rewarding one group of people (example: wellness program participant sharing medical or personal information, people who try to quit smoking), are you inherently punishing the other group of people (example: employees concerned about their privacy, smokers not trying to quit)? Or is it a perception problem, a way in which an embittered employee chooses to perceive the situation because they didn’t get something?

My two cents? For something small — a $15 gift card to Starbucks or a 10 percent discount at the company gym, something relatively inconsequential like that — I understand that perception argument. But applying that lens to something that amounts to thousands of dollars a year in insurance premiums doesn’t hold. It’s much easier to see the situation as coercive, especially when sensitive genetic information is concerned.

Andie Burjek is an associate editor at Workforce. Comment below or email editors@workforce.com.

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Job Descriptions Count (but not as Much as You Think) in ADA Cases

Jon Hyman The Practical Employer

Donald Bush worked as a chef manager for Compass Group. According his written job description, his duties included routinely lifting more than 10 pounds. Bush informed his employer that he suffered from rapidly progressing cervical/thoracic spondylosis (a degenerative back condition), and requested a transfer to a less physically demanding job. Ultimately, Compass Group fired him because his illness prevented him from heavy lifting of over 50 pounds.

So, who wins Bush’s disability discrimination claim? Bush (based on the 10 pound limit in his job description), or Compass Group (based on its estimation of the practical realities of his job’s lifting requirements)?

The answer? In Bush v. Compass Group (6th Cir. 3/23/17), the appellate court affirmed the trial court’s dismissal of Bush’s claim.

Uncontroverted evidence shows that lifting up to fifty pounds was an essential part of Bush’s job duties. During his deposition, Bush confirmed that the written job description did not accurately reflect his actual job duties. Specifically, when asked about the description’s statement that candidates needed to be able to lift up to ten pounds, Bush stated that he “was lifting and moving quite a lot more than that.” Bush confirmed that he was required to move cases of meat and fifty-pound bags of potatoes and sugar. Moreover, Bush stated he was lifting heavy weights “for quite a bit of my employment” because he would have to assume the duties of less senior cooks when they did not show up for work. When asked if lifting heavy weights “was essential” to his job, Bush responded “Yes. Yes.”

Thus, because Compass could not accommodate Bush’s disability to meet the actual essential function of his job, the ADA did not protect his job.
A written job description is only one of seven factors courts consider in determining whether that function is essential to the job:
  1. The employer’s judgment as to which functions are essential;
  2. Written job descriptions prepared before advertising or interviewing applicants for the job;
  3. The amount of time spent on the job performing the function;
  4. The consequences of not requiring the incumbent to perform the function;
  5. The terms of a collective bargaining agreement;
  6. The experience of past incumbents in the job; or
  7. The current work experience of incumbents in similar jobs.

Thus, written job descriptions are important, but are not dispositive of a job’s essential functions. Just because you list a function as “essential” doesn’t mean a court has to take your word for it. If the other six factors show otherwise, then they will carry the day, and not the written job description.

Please do not, however, mis-assume that you should not have written job descriptions. To the contrary, you should have written job descriptions for each position in your organization. They not only help establish reasonable expectations for what you expect from your employees in a position, but it also help set a baseline for what you do, or do not, have to reasonably accommodate. You must provide a reasonable accommodation to enable a disabled employee to perform the essential functions of a job; you do not, however, have to accommodate the non-essential functions. The point is that a job description is only part of the story of whether a job functions is essential; it is rarely ever the whole story.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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Clarify Your Goals and Intentions for Powerful Diversity and Inclusion Results

So much potential, energy, talent, time, and money are wasted because we aren’t clear. When it comes to diversity and inclusion in particular, many of us lack clarity about our goals, the impact we want to have, or even our intentions.

Sometimes we have clear intentions but no idea how to get there. Sometimes we have clear intentions and goals for desired impact, but we don’t believe we can get there. Other times, we have positive, clear intentions, but negative or unintended impacts.

To align intent and impact for more powerful D&I results, first get crystal clear about your goals and intentions. Diversity is a means to an end. Inclusion is a means to an end. They are not the end! “Doing diversity” for its own sake — to look or feel good, comply with regulations, avoid lawsuits, or do the right thing are old school reasons that are incomplete at best and misguided at worst. Having only “old school” motivations are why many internal D&I initiatives, offices, and professionals aren’t taken seriously, and aren’t given the same power, recognition or resources as other departments. Thus such initiatives, offices and resources can be easily eliminated in tough times; D&I is seen as icing on the cake instead of an essential ingredient for the cake. It’s seen as a nice-to-have, not the must have evidence now demonstrates it to be.

What to do? Three actions:

1. Answer these key questions to define your organization’s mission-critical diversity return on investment:

  • What does this organization value most? What are its highest, most urgent priorities? Don’t look at the vision, mission, or core values, or listen to what leaders say. What do they do? Where does the money go? That tells you what the actual values and priorities are!
  • What does not “doing diversity” cost us now? What could we have saved or avoided? Identify data that affect the organization’s highest, most urgent priorities. Think about quantitative data like dollars wasted due to staff turnover (including the costs of recruiting, training, hiring, onboarding, and new hire learning curves), low engagement, low productivity, absenteeism, low customer satisfaction and reduced market share. Think about the many costs of lawsuits and other crises. Think also about qualitative data like morale, brand reputation, team performance, stress levels, effective decision making, customer satisfaction, innovation, creativity.
  • What is not “doing diversity” going to cost us in the future? Use the same metrics to project your ongoing and future costs, taking into consideration projected trends for your industry, market, and geography. Consider the shifting demographics of the United States and beyond, increasing automation and the globalization of most industries.
  • How is “doing diversity” going to benefit us? What do we stand to gain now? In the future? Using the same metrics, articulate your organization’s unique, mission critical DROI (diversity return on investment)!

2. If you are a D&I professional or champion, take time to get clear on your personal motivations and vision for doing this work. What is your personal story? Your personal pain? What early or current experiences make you passionate about this? How does D&I benefit you personally? What are your deepest values? What is your vision for the future? What possibilities do you see? What kind of world do you want to live in? How are your choices, words, and actions aligned with your vision of that world? Being rooted and grounded from a heart center will provide balance to your intellectual clarity on goals. It will add depth and authenticity to your work. It will provide motivation and inspiration when you’re weary.

3. If you are a D&I professional or champion, invest time and effort in healing your personal trauma around this work. Your pain and values may drive your commitment, but you won’t be effective over time if you’re not adequately processing your anger, grief, or shame. Most of us who do D&I work do it because we (or a loved one) have been wounded or abused in some way. Do not allow this important work and its impact on future generations to be diluted or tainted by you trying to resolve your personal pain or anger through the work alone. Also:

  • Seek a qualified therapist you respect and trust. Consider a body-focused therapy like EMDR or somatic experiencing, or try working with the subconscious through hypnotherapy.
  • Seek coaching from a certified, and preferably also credentialed, professional coach.
  • Get together regularly (weekly or monthly) with colleagues or friends you can talk with openly about the challenges. Vent and be heard, but don’t stay stuck — move to insights and solutions. Find out how you can take radical responsibility for your experience. Commit to changing your behaviors in service of your healing and vision.
  • Pursue a spiritual practice that provides solace and connection — and also guidance, accountability, and support for your behavior changes.
  • Pursue a physical practice like a sport, vigorous gym workouts, yoga, or dance in your preferred musical genre.

Going out and having an impact, then course correcting misalignments between intent and impact, are the next steps in obtaining powerful D&I results — but crystalline clarity about goals and intentions must come first.

Susana Rinderle is president of Susana Rinderle Consulting and a trainer, coach, speaker, author and diversity & inclusion expert. Comment below or email editors@workforce.com.

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Social Media May Distract Employees, but Should We Care?

Jon Hyman The Practical Employer

Earlier this week, I asked when employees will learn that online comments can, and will, be used against them. There is another half to the workplace-social-media equation—employers, who have the task of regulating their employees’ use of social media, which happens more and more in the workplace.

Yesterday, Cleveland reporter Olivia Perkins discussed a recent survey, which found that nearly 90 percent of employees access personal social media accounts at work, to varying degrees of distraction.

The survey of 1,200 employees, at companies of varying size, found that 18 percent of respondents said they checked social media 10 times or more during the workday. On the other end of the spectrum were the 12 percent of respondents, who said they never checked social media at work.

The on-the-job social media habits of most employees fell somewhere in between. Sixty percent of respondents said they checked social media at work one to five times daily. Ten percent said they checked social media six to 10 times during the workday. The survey has a margin of error of plus or minus 3 percent.

The question is what to do about it? My answer? In most cases, absolutely nothing. As I’ve long argued:

Employers that try regulate personal social media use out of the workplace are fighting a Sisyphean battle. I call it the iPhone-ification of the American workforce. No matter your policy trying to regulate or outright ban social media in your workplace, if your employees can take their smartphones out of their pockets to circumvent the policy, how can you possibly police workplace social media access? Why have a policy you cannot police and enforce? And, don’t forget, the NLRB is watching, too.

Instead of regulating an issue you cannot hope to control, treat employees’ use of social media for what it is—a performance issue. If an employee is not performing up to standards because he or she is spending too much time on the internet, then address the performance problem. Counsel, discipline, and ultimately terminate if the performance does not improve. A slacking employee, however, will not become a star performer just because you limit his or her social media access; he or she will just find another way to slack off. Instead of wasting your resources to fight a battle you cannot win, reapportion them to win battles worth fighting.

We ask so much of our employees. The 9-to-5 is no longer relevant. If my employee, who is giving up nights and weekends for me, wants to spends a few minutes during the workday posting to Facebook or checking the score of last night’s game, or buying something on Amazon, I just don’t care (unless you are working in a safety-sensitive position, and then why the hell are you on your phone at all?), unless and until it reaches the level of distraction and impacts performance. Then, however, we are treating the performance problem, not the technology problem, which is the appropriate and practical solution.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.