Talent

Are You Training Your Leaders on ‘Defensive Management’ Best Practices?

 
At some point, every workplace is faced with allegations that a supervisor behaved badly. Perhaps it was a stray remark about a disability, age, or race. Or maybe they treated someone in a way that wouldn’t pass the smell test under the Civil Rights Act, the Age Discrimination in Employment Act, Americans with Disabilities Act, and so on.
Even if a supervisor hasn’t been accused of any wrongdoing, passivity in the face of others’ actions can create major legal headaches.
To truly succeed, employers must enlist line managers and supervisors to help build a culture of compliance. When properly trained, they are and employer’s eyes, ears, and hands—helping spot issues, detect conflicts, de-escalate problems, and implement action plans.
Attorneys representing aggrieved employees in discrimination, retaliation, harassment, wage and hour, and other types of employment claims love allegations of supervisor wrongdoing because that’s the “smoking gun” they need to paint that supervisor as a villain—whose statements, acts, decisions, and omissions should result in liability for the employer. Also, such acts may fuel additional individual liability claims against the supervisor under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and other laws.


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To help you make your compliance risk training more effective, BLR® and HR Hero® interviewed former Equal Employment Opportunity Commission (EEOC) trial attorney Merrily Archer about some common practical “defensive management” tools for today’s workplace.
BLR/HR Hero: Why do you think organizations do not do a good enough job educating their management teams about compliance with Equal Employment Opportunity (EEO) laws?
Archer: Most legal training delivered to managers on harassment and discrimination is ineffective for lots of reasons.
First and foremost, the overwhelming majority of managers would never think of harassing or discriminating, and yet, they get cast as “EEO villains” in nearly 100,000 new EEOC charges each year.
Because they would never consciously engage in conduct they consider “discriminatory” or “harassing,” they fail to appreciate how discrimination/harassment allegations develop from everyday personnel decisions and interactions. We need to talk about EEO law in a way that is accessible, engaging, and easy to apply on the ground.
Second, line managers are risk management’s (e.g., HR and in-house counsel) eyes and ears, and very often, their legs and hands. If we train managers to SPOT and ESCALATE potentially risky situations and “people problems,” HR and in-house counsel can more effectively partner with them toward reducing risk and producing good outcomes.
“Defensive Management” also helps frontline managers understand HR and in-house counsel’s critical role as their partner and protector, instead of as corporate bureaucrats making them endure the torment of an underperforming subordinate.
Third, most compliance training does not co-opt managers into the organization’s legal endgame—to wit, preemptively overcoming allegations of discrimination and harassment through, among others, effective documentation and performance management practices.
In fact, line managers often find HR and legal counsel’s apparent obsession with documentation and procedures absolutely puzzling, until they understand how they fit into common EEO defense themes—e.g., rehabilitation before termination.


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And finally, managers must understand this litigious workplace climate could also come raining down on them personally. Several federal and state statutes and tort theories provide for individual liability of managers (e.g., FLSA, FMLA, tortious interference); they have substantial skin in the employers’ overall risk management game, and yet, organizations seldom explain that reality to them.
Have we given the Managerial Miranda warning—namely, that everything they say and do (even in e-mail) can be used against them in a court of law? Several clients have shared that after participating in “Defensive Management,” once overly-autonomous or uncooperative line managers became true believers in the importance of collaboration with HR.
For more of Archer’s insights, read her recent blog post Defensive Management: Getting the Message to Managers (Where It Matters Most).
In tomorrow’s Advisor, we’ll hear more from former attorney Archer on “defensive management” training practices.