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Ask the HR Expert: Diversity, Ethics & Issues

Posted by NEHRA  September 7, 2009 09:00 AM

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Q. I am the HR manager for our department. We have a female minority employee who has abused her PTO time. She also does little or no work, but always seems to reap the company incentive rewards. The onsite manager has NO documentation of the times she has abused her position and PTO time, or the times she has been approached by the onsite manager. What, if anything can be done to start the termination process without a lawsuit?

Your dilemma has both legal and ethical implications; however, the fact that the employee is a female minority individual should not impact decision-making. A minority employee does not have different performance or attendance requirements, or rights. The fact that she is a female minority employee is irrelevant. The performance management “clock” should start now since the employee’s manager has failed to document prior incidences. In other words, it is our opinion that this employee cannot be terminated at this point in time. Future incidences need to be documented carefully, followed by a clear discussion between the employee and her manager. She has the right to discuss the feedback and respond. If the problem continues and is not corrected over time, then HR should notify the employee that a performance plan has been initiated that could lead to the loss of her job. Instead of worrying about potential lawsuits, do what is right and what corresponds to best and fair practices for HR.


Q. I have to lay off an employee whose job is being eliminated. I have concerns for my own safety, since the employee is emotionally unstable. He also trains in a number of martial arts and he frequently mentions his extensive collection of firearms. In the past when he has received constructive criticism during performance reviews, he has burst into tears, angrily thrown pens, yelled, and stormed out of the office in a rage. I am concerned about his potential reaction to this layoff, since he has demonstrated rash behavior and an inability to control his emotions. When he's laid off, we'll have security escort him out of the office, but how do I protect myself from him approaching me after he's been laid off? I'd like to do everything I can to protect myself from this happening to me.

Unfortunately these types of situations are quite common, especially during difficult economic times such as we have experienced during the past year. It is quite obvious to us that the first mistake occurred when HR and the company did not respond to this man’s initial displays of aggression and inappropriate behaviors. World class management demands that we always respond to these types of behaviors when they occur. There should be a zero tolerance of workplace aggression and rage.

When laying off an employee who has a higher likelihood of inappropriate behavior, aggression or even violence, it is essential to practice good behavioral risk management. This means a clear discussion, ahead of time, with the entire team involved with the termination: What is our goal? Will we have security onsite as a back-up? Is our EAP onsite to provide counseling if needed or wanted by the employee? Should the termination be held offsite? How will other employees be informed of potential risks? Will we have escorts for people who feel potentially threatened after the termination? What signs will we monitor after the fact to secure our own safety? The goal is not to challenge the employee, but to provide him with a decent severance, access to health insurance for a period of time, a way to preserve dignity for himself, colleagues and family, and to remind him of what is expected in order to receive his package of benefits. If the employee makes threats at the time of termination, or in days after, consider taking out a restraining order, varying your times of coming to and from work, and hire security at the front entrance for a period of time. Do not accept phone calls from this individual. It is always wise to engage in more prudent and cautious behavior following this type of termination.


Q. Our controller has befriended our lease records supervisor. One day during our department lunch, the lease records supervisor boasted that the controller told her specific information regarding two former employees of the company. I felt very uncomfortable about this and visited with my manager at the time. Unfortunately, my manager was friendly with the lease records supervisor, so nothing was done about it. My manager no longer works here, but both the lease records supervisor and the controller. Our company has the whistleblower policy. Is it my responsibility to notify someone that this relationship is out of line or not?

A. Here are some questions to consider before deciding if it’s proper to use your company’s whistleblower policy:

1) Is it possible that the lease records supervisor is trying to make herself look more important than she actually is by stretching the truth? In other words, could the controller be innocent?
2) What evidence do you have that this conversation, between the controller and the lease records supervisor, actually took place?
3) Was the controller allegedly sharing confidential information such as salary data or was she discussing something that, although you may feel it’s not appropriate, does not violate company policy?
4) How do you know that your formal supervisor never took action after you expressed your concern?

Take some time to reflect on this. If you still feel the need to take this further, then make an appointment with HR to discuss this situation.


Q. My head of HR accused me of having an affair with a co-worker, which is a completely false accusation. She tried to trick me into admitting it when interrogating me by saying she KNOWS this information is factual and not a rumor. I told her it was completely untrue, and her response was that I should be careful who I go to lunch with, etc. when at work. This was over a year ago, and I am still a wreck about it. But you can't cross HR...or you are out. What do I do?

A. How interesting that the head of HR “actually knows this information is factual and not a rumor.” I’m going to assume that she was not there when “this actual affair took place.” Therefore, it is just a rumor.

This situation happen over a year ago and you say that you are still a wreck. Meanwhile, the head of HR has most likely moved onto another nasty rumor. You cannot control what other people think. You know the truth and should hold your head up high when you walk into the room. If you work in an organization where crossing HR means you are out, then perhaps it is time to find a place where the CEO has an open door policy and everyone, regardless of position, is held to the same standards.


Q. An employee in our accounting office has her radio turned up so loud it affects the other employees. She has been approached several times by management, other employees and HR for her lack of consideration. She will not even negotiate to putting the station on something everyone would enjoy and at a low level to not affect work performance. One employee approached her and she immediately became defensive saying she was being picked on. What would be the proper handling of this situation be on the part the office manager?

A. As a general rule, the office manager should discuss the situation with the manager of the offending employee, explaining that the radio is disturbing others around her. It is her manager's responsibility to ensure that she is a productive and cooperative employee. If this does not bring results, then the office manager should escalate it up to the next level of management until the situation is rectified.

Loud music and offending stations are not uncommon complaints in workplaces that allow radios to be played. Supervisors and managers should be able to address these complaints quickly and effectively. A reasonable response is to ask the employee to turn down the volume, change the station, and/or to wear ear phones, if appropriate. If the situation continues, then management will probably need to follow disciplinary procedures for employee insubordination.

It's concerning that this situation has been going on for so long without any results. Are there other management issues in your office that go unaddressed and are difficult to resolve? If not, then what makes this situation so different from others? If so, then what needs to happen at this office to ensure that infractions like these get addressed in a timely and satisfactory manner?

At a minimum, your office should have a code of professional conduct on file, which every employee has a copy of and is responsible for following. Rules of conduct should be strictly and consistently enforced, and managers should be trained to handle complaints like these. If your managers and supervisors are not able to address a problem like this, then they may need training on how to resolve conflict and handle difficult employees/situations.

Alternatively, sometimes simple matters like these get complicated because it is not clear to employees and managers what they should do and who is responsible for dealing with them. So, make sure it is clear to all what the process and protocols are for dealing with employee complaints and who the final decision maker is.

Lastly, sometimes we have managers and supervisors who don't like to deal with conflict and prefer to ignore it - or simply don't understand the business impact of the conflict. In situations like these, it is important for us to remind those in charge that distracted, unhappy, and disgruntled employees have trouble working efficiently. Concentration and productivity slip, resulting in many potential losses: goodwill, trust, efficiency, customers, revenues, good employees, and profits. Conflict in the office is a bottom line issue. The faster problems like these are addressed, the faster folks can put their minds where they belong - back to work.


Q. A marketing executive needs to hire a new staff member for a newly created position. Two candidates have been determined to possess the requisite skills, an African female and a white male. The marketing manager is committed to diversity and equal opportunity. The marketing manager examines the two candidates' past performance appraisals. The African American female has received appraisals in the 3.8 to 4.2 range (on a five-point scale), but the marketing manager knows that her boss rates everyone about 0.4 below where they should be. The white male has received ratings in the 4.0 to 4.4 range, and the marketing manager feels that the candidate's boss rates everyone fairly, so these should be accurate ratings. The marketing manager wants to make sure he or she can defend the hiring choice made. My question has three parts: 1) What are the ethical issues in this situation? 2) What are the basic arguments for and against selecting each candidate? 3) What do you think most managers would do?

A. 1) Ethically, the responsibility of the marketing executive is to hire the best person for the job. This, of course, can be difficult to determine at times, as there are many factors that should be weighed when evaluating who is the best choice for the position. In addition to looking at past performance, skills sets, and credentials (all of which appear to be equal for both candidates), the hiring manager needs to decide who he or she feels would do the best job. If, after interviewing both candidates and checking their references, the hiring manager believes that they are still both equivalent (i.e., they would perform equally) and would both be excellent additions to the team, she can then look at whether or not there are affirmative action goals set for her department. As long as the hiring executive is following these guidelines, then he or she should be able to defend her hiring choice knowing that the decision was ethical, carefully considered, and well thought through.

2) Since both candidates appear to be similarly qualified in terms of requisite skills and past performance, then the hiring executive should look more closely at the other three criteria - who would do the best job, who would be the best addition to the team, and where is the department in terms of meeting its affirmative action goals (if there are any). These criteria should be fully explored in the interviewing and hiring process.

If, after interviewing both candidates and checking their references, one candidate emerges as a better choice, then the manager should select that person. We should always select the stronger candidate. We know from ample experience that two candidates with similar backgrounds, skills and past performances do not necessarily perform at the same level and in the same way in a new position. A lot of it has to do with chemistry, culture, and fit with the manager and team. We also know that all teams are diverse in some way, regardless of gender and race, and that how the manager and team work together and support each other can make an enormous difference to both individual and team performance. So, the hiring manager should look closely at what the effect of adding each person to the team might be.

For instance, would either of them be able to help expand the team's success in new markets? Would either of them be able to bring in a new/different perspective - or a better connection/appreciation for untapped markets? Do we already have ample gender and/or racial diversity on the team? Are there other kinds of diversity, beyond race and gender, that either of these candidates would appear to be more successful with (LGBT, age, or geographical, for example)? Do they have previous success with other markets or projects that might be useful to the work of the team? How might each candidate's personality, communication and work style fit with the rest of the team? What kind of organization and manager does each person work best with? How is their "fit" and how would it impact team dynamics? Also, giving the team an opportunity to interview both candidates will help to gather more data, while getting a better sense of team fit.

If, after looking at all of these additional criteria the candidates still appear equal, then the hiring manager should look at her affirmative action goals to see if she is meeting them. If she hasn't yet met her target goals, then it would behoove her to choose the African American woman. If she has met her goals, then she should look at what the net diversity effect on the team would be if she chose either candidate.

3) I don't know what most managers would do. I believe it really depends on the manager and how thorough and thoughtful he or she is in the hiring process; how much he or she is committed to diversity, inclusion, and equal opportunity; and what the company and department goals are for affirmative action. Good companies know that a commitment to diversity and equal opportunity makes good business sense. It is not only a commitment to giving everyone the same chance to work, thrive and contribute, it is also an opportunity to create a great - and profitable - business.

Experienced managers know that making a good hire is worth the extra time and effort in determining the best candidate and that a bad hire is costly and difficult to recover from. There are many factors in this situation that need to be considered, and taking the time to work through the process carefully should reap the best results for all.


Q. I’m wondering if "sexual harassment" training to employee/managers is necessary to do every year? Just trying to get a handle on the rule of thumb for how often that particular training should take place?

A. The short answer to your question is not necessary but sensible.

The Massachusetts Fair Employment Act requires employers to promote a workplace free of sexual harassment. While it is not a legal requirement, to conduct annual sexual harassment training, it is the safest course of action. To skip an entire year might leave your company in jeopardy. In addition, annual training reminds employees of their responsibilities and is an excellent way not only to promote a workplace free of sexual harassment but to demonstrate you have taken steps to promote a workplace free of sexual harassment.

The Massachusetts law also requires all employers to distribute a written copy of their sexual harassment policy to every employee every year and to all new employees when they come on board. It encourages new employees to receive training in the prevention of sexual harassment within one year of starting employment. It also encourages additional training for supervisors and managers which covers their responsibilities to prevent sexual harassment and their responsibilities to respond to complaints of sexual harassment. Even though there is no explicit statutory requirement for sexual harassment training, EEOC guidelines and federal court decisions have made it clear that sexual harassment training is essential. Indeed, to be able to raise a defense or avoid punitive damages in sexual harassment lawsuits, employers need to show that they have provided periodic sexual harassment training to all employees. This training should address not just sexual harassment but all form of unlawful harassment.
Finally, sexually harassment training can be engaging, informative and fun. If the training that your organization has been providing is not all of those things, look around for another program or a different facilitator.


Q. We are a small company - about 40 employees. Some new employees have been hired recently, and those employees appear to be getting better treatment than the more tenured ones. There is great resentment among the more tenured employees. I would like to suggest to upper management that we have some sort of monthly meeting to talk about the workplace issues we are facing. What is the best way to go about doing that?

A. Whenever there is ongoing tension between two groups, it makes sense to consider several alternative courses of action. One good way to address the issues at your company is your idea of instituting a monthly meeting. What you would do to get started is to take the issue to your CEO and explain why you believe there is a problem. You need to make a strong case for the introduction of monthly meetings. If he or she agrees to the meetings, you may need to offer some thoughts about how to manage that kind of a meeting. I say that because it often happens that the CEO does not have the skills or insight to lead such a meeting in a productive way. With some coaching, some talking points for the CEO or with the help of a skilled facilitator, this kind of meeting can work well. Another alternative is to ask the head of the company to form a Task Force to look at disparities between more recent hires and other employees. This way the facts can be surfaced and addressed. I happen to be a huge fan of Task Forces because they are time-limited and can focus on a single issue and then go out of business. In your situation, you also want some hard data to see if there are grounds for complaints.


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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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