Yesterday, we talked about how comments like “You don’t look gay” or “You don’t sound black” may not technically be illegal, but are nonetheless inappropriate at work.
Intent isn’t always the problem. A 2010 study conducted by the UCLA Law/RAND Center for Law and Public Policy concluded that discrimination can occur in the absence of any conscious intent to discriminate.
The study cites the example of how participants in a formal management meeting called to determine whether to terminate a certain employee might make a discriminatory decision even though all of the managers involved were making a conscious effort to be unbiased.
The employee’s record on which the decision will be made is the result of hundreds of informal encounters, in which participants were likely less vigilant about fairness, meaning stereotypes and implicit biases could contribute to the termination decision.
The High Cost of Lawsuits
The UCLA-RAND study indicates the odds are 50-50 that the employer will prevail in a discrimination lawsuit, and the median award when the employee wins is $205,000. The biggest awards are in cases alleging discrimination based on a medical condition, for which the median award is $602,668, and sexual orientation, which have a median award of $420,000.
The amounts of money paid by employers that settled before trial are not available, but it is safe to assume that settlements have cost employers considerable sums. And the legal costs of defending against a discrimination lawsuit can range from $50,000 to $150,000, depending on whether the case settles or goes to trial.
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Steps to Guard Against Unintentional Bias
The idea of guarding against unintentional bias is relatively new, and managers are frequently defensive about the idea that they may be discriminating unintentionally. However, as the UCLA-RAND study suggests, this kind of bias is becoming more prevalent and must be addressed.
To combat unintentional bias in the workplace:
- Put in place strong tools for monitoring your company’s compensation, promotion, and hiring and firing decisions. The statistics from these programs can be a valuable resource in rooting out unintentional bias. For example, if those numbers show that two-thirds of your employees are women, but only one-third of your managers are women, you might have a bias problem that needs attention.
- Use employee surveys to gauge the climate. At many large companies, employees participate in anonymous surveys to give management insight on the corporate culture and whether cultural or diversity issues need to be addressed.
- Train all employees, not just managers, to communicate well. Employees sometimes turn to a union representative or a lawyer simply because they lack the skills to bring up a problem with managers. Employees need to be able to resolve problems with co-workers when they can do so tactfully and also need to feel free to complain to supervisors or a manager when necessary.
What If the Training Department Is You?
We don’t need to tell you just how important training is, for preventing harassment and unintentional bias and countless other workplace problems.
But training is just one of, what, maybe a dozen challenges hitting your desk every day? And how about those intermittent leave headaches, accommodation requests, or attendance problems?
Let’s face it, in HR, if it’s not one thing, it’s another. And in a small department, it’s just that much tougher.
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- Explanation of how HR supports organizational goals. This section explains how to probe for what your top management really wants and how to build credibility in your ability to deliver it.
- Overview of compliance responsibilities, through a really useful, 2-page chart of 21 separate laws that HR needs to comply with. These range from the well-known Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) to lesser-known, but equally critical, rules such as Executive Order 11246. Also included are examples of federal and state posting requirements. (Proper postings are among the first things a visiting inspector looks for … especially now that the minimum wage has been repeatedly changing.)
- Training guidelines. No matter the size of your company, expect to conduct training. Some of it is required by law; some of it is just good business sense. Managing an HR Department of One walks you through how to train efficiently and effectively with a minimum of time and money.
- Prewritten forms, policies, and checklists. These are enormous work savers! Managing an HR Department of One has 46 such forms, from job apps and background check sheets to performance appraisals and leave requests, in both paper and on CD. The CD lets you easily customize any form with your company’s name and specifics.
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