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Ask the HR Expert: Diversity, Ethics & Issues

Posted by NEHRA  March 9, 2009 09:00 AM

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Q. We have a supervisor that has not been performing well. She has been spoken with on numerous occasions about her lack of performance and her attitude. We want to demote her from supervisor but now she is pregnant and we are worried about this seeming to be because she is pregnant. Is it okay to demote this person?

A. Speaking with someone on numerous occasions is not managing performance. It is best to set up specific measurements for improved performance, along with timelines for these objectives to be met. I would suggest that you meet with this supervisor and review what is expected from someone in this position. Establish goals and a time to meet weekly, so that she has an opportunity to turn this situation around.

Given this current situation, I would recommend you speak with counsel before considering demoting this employee.


Q. If an employee reports to work with a cold and wants to stay at work, can the employer send the employee home against his or her will? Could this be seen as an employer forcing an employee to use Paid Time Off? Could an employer be seen as within his or her rights, since they don't want to get sick themselves?

A. Sometimes employees think they are being troopers when they come to work ill. Perhaps a gentle reminder is in order regarding the importance of staying home when you are sick. You should certainly send out a reminder just before flu season hits. Keep hand sanitizers nearby and remind employees about the importance of frequent hand washing.

If you believe an employee is exposing other people to their illness you can certainly suggest they leave. They may choose not to do so, unless you agree to pay them for the day. That’s why it is good to have a backup plan. Is there a vacant office the employee can use for the day? Can you re-assign some of the workload so they are free to leave early? Is it possible for them to complete their work from home? These are all ways to help keep the germs from spreading, while keeping the work flowing.


Q. I am new at my company and have noticed their diversity efforts are focused on race and gender issues. I would like to broaden the focus to include persons with disabilities? I have gone to diversity job fairs only to find that employers in general are looking for people of race and gender. Do you have any advice as to how I can best approach this topic within my company?

A. Here are three alternatives to help get your company more focused on people with disabilities. The first option is for you join any existing Diversity Committee or diversity efforts. Once you are oriented and on board you can raise the issue of people with disabilities. You might suggest bringing in a speaker from an organization like Mass Office on Disability or showing a film on the topic to generate momentum. A second alternative is to identify one or two others at the company who care about the issues of disability and to begin meeting with them. Your long term goal will be to become a Task Force. Once you will exist as a Task Force, you will provide an energy center and will attract others. A third course of action is to go to HR and share your concerns about the lack of focus on people with disabilities at the company. See if he or she agrees with your assessment. Put your heads together to design a next step.


Q. As a small business owner, can I have an employee prospect work on site in order to evaluate whether they can tolerate the physical environment... closed office, allergies, asthma? I don’t want to get in trouble but want to make sure the candidate can perform the tasks.

A. Do not discuss disability and accommodation before an offer has been made. After an offer has been made, you can make medical inquiries related to the new employees’ ability to perform the job. This assumes you have more than 15 employees so that the Americans with Disability Act applies to your organization or that you have more than 5 employees, so that states laws, which are very similar to the ADA, apply. You may want to discuss accommodation at the time of the hiring, but it may well make more sense to wait and see if problems actually occur. If they do, the next step is an “interactive dialog” to discuss what is a reasonable accommodation. It is best to deal with each situation on a case by case basis.

For example, if your new hire has asthma or allergies, you may want to consider such options as an air filter, a separate office for the employee, creating a scent free work environment, or work at home hours. The law says you need to come up with an accommodation unless it will cause undue hardship, it is too expensive for your company or the implementation of the accommodation would be too disruptive. Since these laws are complex and situations vary, my advice is for you to call one of the following organizations: New England ADA Center – 1 800 949 4232, Massachusetts Office on Disability – 1 800 322 2020, or the Massachusetts Commission Against Discrimination – 617 994 6000. I have found these organizations are responsive and helpful.


Q. I am a manager at a hotel and one of my very good receptionists recently told me that she is now dating one of our frequent guests of the hotel, who is a part of a loyal business group, whom we have a valuable relationship with. What should be done if anything?

A. This is not an uncommon event and most organizations will confront similar situations at one time or another. Choosing whom we want to date is a personal right; however when such a relationship has the potential to impact business and perceptions of fairness, then an organization becomes at risk. The guest—in this particular situation—is part of a larger group providing revenue to the hotel on an ongoing basis. Therefore the entire business group is a significant customer. Although it might not be the case, a “perception” can emerge that a type of quid-pro-quo exists between the hotel’s receptionist—who represents the hotel to the public—and an ongoing revenue stream from the business group i.e. the customer.

Just think how the situation changes in the eyes of all parties concerned if the frequent guest is the CEO of a multinational corporation that constantly fills rooms at this hotel! People have the right to choose their personal relationships, but when there is a potential situation that impacts sales and the perception of fairness (on either side), then it is prudent for Human Resources and the Manager to intervene. The situation can easily evolve into an ethics case with the possibility of sexual harassment allegations if and when the relationship dissolves. The receptionist may have to choose between her job and the relationship; and HR will have to explain, to the customer and the business group, that business could be compromised if the status quo were preserved. In this day and age, world class businesses will respect the hotel’s decision to take the “high road.”


Q. If you were the manager of an employee (supervisor) whose behavior is okay in the morning, but after lunch, the behavior is somewhat erratic? It seems that the person has drinks (alcohol) during lunch break, as at times, I can somewhat smell the breath of alcohol. How can this be confronted with sensitivity?

A. All companies should have zero tolerance for any time of substance use at work, or during work hours. The use of alcohol while at work or lunch hours will compromise the safety of the employee in question, other colleagues, and the business as a whole. Managers cannot ethically diagnose someone’s use of alcohol or potential chemical dependency, but they can observe and document behaviors which do not seem appropriate or typical. In this situation, the manager must approach the employee and let the individual know that there are concerns about his/her behavior after lunch, and that the use of alcohol is suspected. The manager is responsible for the safety of the entire team, not just the employee in question.

If the employee is unwilling to confront the behavior after being approached with compassion, then the manager—in consultation with Human Resources—should request that the employee schedule time with the Employee Assistance Program and wave the right of confidentiality. This EAP evaluation will establish if any dependency or addiction issues require treatment and/or a leave of absence. In all cases, we expect the manager to approach the employee with respect, list behavioral observations only, supply data on these observations, and help to facilitate change that will hopefully preserve the employee’s job.


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About NEHRA - The Voice of HR Featuring articles and resources for Human Resources / HR professional and hiring managers from the Northeast Human Resources Association (NEHRA).

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