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April 2008 Archives

April 16, 2008

How Much Do We Tolerate Discrimination? New Study Provides Eye-Opening Insights

No two people are alike – and that holds true for our prejudices.  But there are some interesting trends that have found certain prejudices expressed more clearly among defined gender and ethnic groups.

Several studies have found that men are more tolerant of discrimination than women, but a study released this month goes one step further to find that both genders tend to more readily accept prejudice against some immigrants and Arab-Americans

The study also found that:

  • Men and women differed the least in regard to discriminating against Arab-American airplane passengers, and most in regard to African-American motorists.
  • The highest percentage of respondents accepted discrimination against "poorly educated immigrants," followed second by acceptance of discrimination against Arab-Americans.
  • Respondents were least likely to accept discrimination against the genetically disadvantaged, or people who are genetically at high risk for diseases that require expensive medical care.
  • Men were 19.6 percent more likely than women to tolerate discrimination against obese people and 17.4 percent more likely to accept racial profiling.

The results, just released this month, come from surveys of more than 3,300 people conducted in 2002 by University of Southern California researchers.

It appears as though implicit bias (often subconscious) is driving the bulk of the problem.  Edward J. McCaffery, a USC law professor, who co-authored the study, concludes that an individual who sees nothing wrong with certain kinds of biases will often find others objectionable.

"Many political struggles of our time, in the United States as elsewhere, amount to clashes over the appropriate boundary between permissible and impermissible forms of discrimination," McCaffery said. "As a matter of practice, people morally opposed to discriminatory policies based on reviled forms of prejudice do not insist on equal treatment for everyone, in every context."

So if you’re an employer trying to create a safe and welcoming workplace for all your employees (or at a minimum trying to avoid crippling discrimination lawsuits), what can you do to address this inevitable (and ugly) aspect of human behavior?

Education is the heart of the solution.  Discrimination and harassment prevention training, including sexual harassment training, is an absolute must for all of your employees. How will they know what you expect of them, and what behavior is inappropriate, if you don’t tell them – especially if they don’t even realize they hold certain biases?  And while the most deeply held prejudices won’t be changed by even the best training programs, you can at least send a clear message that certain behaviors and opinions will not be tolerated in the workplace, and that there will be serious consequences for violating the anti-discrimination policy.

As importantly, several laws and regulatory requirements require you to provide discrimination and harassment training.  So beyond doing the right thing, and creating a culture of inclusion, basic compliance standards require you to take action.

Finally, make sure education happens at all levels of the organization, including senior executives. Don’t forget your senior execs – they need compliance training too.  Just because someone holds a high-level position in an organization doesn’t mean that s/he doesn’t have prejudices and won’t engage in discriminatory behavior.  Many of the most notorious and costly lawsuits are the result of senior execs misbehaving.

Implicit bias is both fascinating and insidious.  We all have biases, whether we choose to admit it or not.

Some of the most ground breaking work in this area has been done by “Project Implicit” – a collaborative effort among researchers at Harvard University, the University of Virginia and the University of Washington.  Studies conducted by Project Implicit examine thoughts and feelings that exist either outside of conscious awareness or outside of conscious control. The primary goals of Project Implicit are to provide a safe, secure, and well-designed virtual environment to investigate psychological issues and, at the same time, provide visitors and participants with an experience that is both educational and engaging.  Interested in seeing what your own implicit biases may be?  Check out the virtual tests for an eye-opening experience.

April 30, 2008

First Workplace Bullying Litigation Results in Successful Plaintiff Verdict

Can a workplace bully create true legal liability for an employer?  Based on a recent decision of the Indiana Supreme Court, it would seem that the plain answer is 'yes.'

This April, the Indiana Supreme Court decided what appears to be the first workplace bullying litigation of its kind.  The Court reinstated a verdict of $325,000 in favor of an employee who was assaulted by a surgeon during a verbal altercation at the hospital.  While the surgeon attempted to argue that the damages were excessive and that the ultimate finding of assault was based on insufficient evidence, the high court rejected these arguments, and also allowed into evidence the surgeon’s prior aggressive acts in order to prove that he was a workplace bully.  As importantly, the supreme court supported the trial court’s refusal to give jury instructions that there was no basis in law for a “workplace bullying” claim.  (See Raess v Doescher, IndSupCt, April 8, 2008).

The Raess case is a reminder to employers to get a handle on their workplace bullies.  Just because behavior does not appear to involve serious physical harm, or to rise to the level of unlawful harassment and discrimination, does not mean that a workplace bully is not causing irreparable damage to the workplace, as well as creating serious legal liability.

Bullies are Rampant

Unfortunately, our workplaces seem to be full of unpleasant and abusive people who don’t discriminate among their victims.  Don’t believe it? Consider this. About 45% of American workers have been the target of workplace abuse. Another study by the Workplace Bullying Institute concluded that:

When Bullying Creates Harassment Liability

We should also remember that bullying behavior, applied equally to both men and women, can still result in a potential gender discrimination claim – at least in California.   How is this possible?  Well according to a 2005 decision out of the 9th Circuit, the bullying behavior can have a more severe impact on women who are likely to be more physically intimidated due to factors such as size and power inequities.  [See EEOC v. National Education Association, 442 F.3d 840, 846-47 (9th Cir. 2005)].  This 2005 case is another reminder that classic “jerk” behavior may create more legal risk than employers ever imagined.

Take Control of Your Bullies!

Because bullying damages your business and can easily lead to harassment and workplace violence claims, it’s important to address the problem head on. Some simple things you can do:

  • Set conduct and behavior expectations.  If your culture contributes to bullying behavior, think about making some changes – even small ones can make a big difference.  (A bank I used to work with had a hard and fast rule that employees should not be “called out” or disciplined in group meetings.) 
  • Senior management needs to lead by example.  A well known, high-powered bully needs to be addressed head on. 
  • In my experience, comp and rewards drive 99% of behavior in most workplaces.  Don’t reward bullies – in fact, make it cost to be a bully.  (Several clients I work with tie a large component of a manager’s annual bonus to employee feedback from 360 reviews.) 

Training is Key

If you really want to get your message out, training is critical. You don’t need to go overboard on this one though – and you certainly don’t need a stand-alone anti-bullying course.

What you do need is a harassment course that thoughtfully integrates the broader concepts of workplace respect and dignity. While employees need to understand the basics of unlawful harassment prevention, not all undesirable and costly behavior is illegal.  In fact most of that spite and venom falls into the ubiquitous and category of plain “unpleasant.”

And we all know why employees sue.  It’s not because of their in-depth knowledge of case law, statutes or employment law treatises.  Employees sue because they feel wronged and mistreated.  Behind every successful plaintiff, there’s invariably a jerk who went unchecked, and untrained.

About April 2008

This page contains all entries posted to Sexual Harassment Training : ELT, Inc. : AB 1825, Employment Law, Online Harassment, Compliance, and Harassment Training in April 2008. They are listed from oldest to newest.

March 2008 is the previous archive.

June 2008 is the next archive.

Many more can be found on the main index page or by looking through the archives.

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