Discrimination claims continue to be a very real and expensive problem. One way employers are trying to combat workplace bias is by implementing diversity programs. Although the programs aren’t new, many employers are unaware of the serious hidden legal risks involved with diversity training. In one alarming case, Lucky Stores Inc. ended up paying out more than $100 million to settle a gender discrimination class action suit after employees used information collected from the grocery chain’s own diversity program as proof of the company’s bias. We’ll fill you in on what can go wrong with these programs and offer guidelines for minimizing these hazards.
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Typical Diversity Program
The increasing number of women and minorities in the workforce brings together many different talents, values and styles. But co-worker and management resistance to these dif- ferences can create barriers to advancement of women and minorities, as well as other problems. Diversity programs seek to sensitize workers to how the differences can be valued.
Often, employers use a consultant or trainer to implement a diversity program. A typical approach includes the following:
- Workforce survey. This is a study of the racial, ethnic and gender com- position of your workforce, employee and management attitudes about diversity issues, and your policies and practices.
- Training. A consultant usually conducts training sessions for em- ployees and management to heighten sensitivity to cultural and gender differences.
Ongoing Diversity Measures
A consultant may make recommendations to help ensure that progress continues. Suggestions might include eliminating practices that aren’t consistent with diversity (such as not posting job openings) or implementing a mechanism to resolve employees’ complaints about workplace bias.
Hidden Risks
These components may seem straightforward, but a number of legal risks lurk be- neath the surface. Here are some of the more common problems employers have faced:
- Negative reports may be dangerous. When you or a consultant prepares a written evaluation of the workforce, the document could be dangerous if the results are critical or negative. For example, a memo stating, ‘We’re not doing a good job of promoting women and we could do better,’ could become explosive ammunition in a sex discrimination lawsuit.
- Statements of employees and managers may show bias. Consultants sometimes ask employees and managers to talk openly about stereotypes or limitations on advancement they have experienced at work. But if you’re not careful, this information could be used against you later to prove that your organization is biased. For example, a diversity consultant asked groups of managers for Lucky Stores to list stereotypes they had heard about women and minorities. Then, when Lucky was hit with a class-action lawsuit for gender discrimination, the court, much to Lucky’s dismay, ruled that the managers’ statements could be used to suggest they had in fact discriminated.
- Complaints may increase. When employees are asked to reflect on the subject of discrimination at work, issues they previously hadn’t thought much about (or were afraid to discuss) may come to the surface. This can spark a surge in bias complaints -or possibly even lawsuits. And, if you don’t follow through on your diversity program, you could end up with a serious morale problem. Keep in mind, too, that trying to increase sensitivity to diversity may cause some employees to become dissatisfied, which could polarize your workforce.
Checklist For Minimizing Hazards
Fortunately, there are steps you can take to reduce the risk that your diversity program will result in problems:
- Carefully select a consultant or trainer. Choose someone who reflects your philosophy and thoroughly check their references. Steer clear of trainers who have their own political agendas or support specific interest groups. Monica Ballard of Parallax Education, a Santa Monica-based diversity training firm, says you should preview the consultant’s program and get assurances they will stick to that material.
- Consider foregoing a written workforce analysis. You can implement a diversity program without creating a written analysis of your past diversity efforts or your current situation. In fact, Ballard says diversity training should be proactive and preventive-you don’t need to have a documented problem for it to be a useful tool.
- Avoid negative statements about the workforce. If you do undertake an analysis of the gender and racial composition of your workforce and the barriers to the advancement of certain groups, avoid making negative or critical statements about your situation.
To be safe, you may want to try to shield the report from later disclosure in a lawsuit by having an attorney give you legal advice about the analysis and even conduct or supervise it, recommends Harold Brody, a partner in the Los Angeles office of the law firm of Proskauer Rose, LLP.
- Minimize discussion about past experiences. To avoid the problem Lucky Stores faced, Michael Delikat, a partner in the New York office of the law firm of Orrick, Herrington & Sutcliffe LLP, recommends that the consultant not encourage employees to talk about what has happened to them in the workplace or about stereotypes. These statements could come back to haunt you if they’re taken out of context. Instead, it’s safer to have employees talk in terms of the changes they would like to see in company policies and practices and to train employees to be sensitive to differences among people. Also, it’s not a good idea for anything the employees say to be included in a written document or report.
- Follow up. Make sure you have the resources and a strategy to handle any potential increase in discrimination complaints. And Ballard notes that diversity training is not a one-time fix for problems. It’s important to provide training for new employees and periodic retraining for existing workers.