Why Most Discrimination Claims Never Get Addressed and What You Can do About It.

By Anise D. Wiley-Little

Author, Profitable Diversity: How Economic Inclusion Can Lead to Success

In light of today’s news headlines, highlighting the #MeToo movement, Black Lives Matter and high-profile women and black people coming forward to share their tragic experiences, one would assume that issues of harassment and discrimination are now being aggressively addressed in the workplace. However, even if the situation is changing, we still have a long way to go in creating safe environments for everyone regardless of age, ethnicity, race, religion, gender or sexual orientation.

Sexism, discrimination, and harassment often happens under the cover of darkness. Most allegations of sexual harassment, homophobia, xenophobia, racism, bullying, and discrimination never see the light of day. Many are not thoroughly investigated in the organization, or externally by EEOC.

In a press release dated April 9, 2019, the EEOC noted that it received 76,418 charges and resolved 90,558 outstanding charges of discrimination in 2018. This may seem significant, however, 14,140 of those charges were carryover from previous years, it doesn’t share the total number on the books and does not include issues never making it to the EEOC and left to be resolved by the leadership of organizations.  You as an HR professional or diversity practitioner can step up to change this by ensuring a thorough internal investigation to resolve and prevent sexism, discrimination, and harassment. 

The Data

Maryam Jameel, Leslie Shapiro, and Joe Yerardi, in collaboration with the Center for Public Integrity, discussed the numbers of workplace discrimination in their article printed in the Washington Post. According to the authors, “more than 1million employment discrimination complaints have been filed with the government since 2010,” and 82% of these cases did not receive any form of relief while less than 2% resulted in a completed investigation. These cases included incidents of retaliation, racial discrimination, sex discrimination, disability or medical discrimination, and age discrimination. What we can take away from these numbers is that hundreds of thousands of incidents are never fully investigated, much less dealt with and/or addressed. The same authors shared in their Vox article entitled “Workplace discrimination is illegal. But our data shows it’s still a huge problem” (February 28, 2019) that most employers are rarely held accountable.

Many concerns brought forth by the everyday employee are quietly taken care of through the organization’s process of mitigating its exposure in the form of a payout to the employee, followed by the employee’s discreet exit from the organization after signing an agreement of confidentiality. Some might ask why an employee brave enough to bring forth an allegation would accept a payout and go away. It is impossible to determine just one reason for making the choice to leave when facing an untenable working condition, but some considerations might be the need to support their families, the lack of means to fight a large corporation, or the desire to avoid wasting years in resolving the issue. Meanwhile, other employees choose to suffer the emotional toll of remaining in their position when it is clear that unfair practices are taking place.

In reality, whistleblowers get little support and can place themselves at great jeopardy for continued employment. The Financial Times article “Speaking Out Against Your Employer is Still Risky” (December 2, 2018) profiles several employees and the aftermath of their decision to bring such issues to the attention of their employers. Speaking out against your employer on any issue can be troubling for the one making the allegation. In this article “Michael Potts, a senior partner at a London based law firm says, “if you point the finger at someone higher up, you can quickly find yourself on the wrong end of disciplinary”. The article also cited a study, Post-disclosure Survival Strategies: Transforming Whistleblower Experiences, by Marianna Fotaki and Kate Kenny “found that 62% of the whistleblowers reported being demoted or given more menial tasks and almost all were eventually dismissed or resigned.” In this article, a police detective reporting a senior colleague was quickly escorted out of the building on a disciplinary charge. He was later exonerated through an employee review process, however, says “Had it all come to pass, I’d have lost my job and pension after 28 years’ service” but had to transfer to another department during the investigation. Even those in a position to speak out can be faced with dire consequences to their careers. An article in IMDiversity by Paul Igasaki asks, “Is Complaining Worth the Risk?” Although retaliation is against the law, if the employee accepts a cash settlement, they will relinquish their claim against the employer. It also cites that immigrant groups and Asian/Pacific Americans are more cautious in asserting their rights when it comes to unjust treatment. It advises that one should consider the impact to career advancement, compensation and personal well-being.

The real data that we as diversity practitioners don’t always like to talk about are the charges that are brought forth in the workplace. We often prefer to focus on the strategies and the programs, leaving the HR staff to work with the issues of discrimination or harassment. However, mistreatment of staff and not appropriately investigating allegations impedes our attempts to make progress, which is why we often find ourselves treading water and not always seeing change. These are typically the circumstances that never make it to the EEOC.

The Dilemma

Human resource professionals, along with legal counsel, are charged with protecting the company, and diversity practitioners depend on the organization to back up their strategy through its actions. Diversity structure and priority look different from organization to organization. From where diversity sits in the organization, whom it reports to and the priority placed on diversity, equity and inclusion within the organization. Recently we have seen diversity move down within the organization and focused on talent acquisition or development instead of the enterprise oversight role, impacting both human resource and business practices. Collaboration of both areas is necessary to address issues at the highest level. When diversity does not have an enterprise focus, meaning no seat at the big table, it is often not involved in allegations of wrongdoing or legal action impacting the organization.

With the recent rise of discrimination claims (EEOC 2016) and employees becoming more and more vocal in sharing their workplace experiences with others through social media despite incentives or directives not to do so, organizations must do something to change this and hold themselves accountable, not covering up or doing nothing. Coincidentally, making such discrimination incidents public is not in the best interests of either group of professionals, HR or diversity. Yet despite what actions we may want to take, in most circumstances we are not the advocate of the employee, but the protector of the organization’s reputation. The priority for the employer at this point is limiting their potential liability and any potential adverse publicity. While many employers take the right steps of obtaining legal counsel; notifying key executives; thoroughly investigating the situation while treating the complainant with respect; and subsequently taking any appropriate action, others take the easy way out by burying the complaint through the illusive settlement agreement. Rarely is individual payout data available to employees or the public as in most cases a confidentiality agreement is put in place after an out of court settlement is reached, ensuring no one is aware that a claim was even put forth. Of cases that do make it to court, only 1 percent are won by the employee (Fast Company, July 31,2017). In public claims, we often hear of the large payouts such as a Ford employee awarded $17million (Associated Press, NY Post, April 5, 2018) or Uber’s $10million settlement (USA Today, March 27, 2018) or $6million in the Teva Pharmaceuticals (Associated Press, The New Jersey Employment Law Firm Blog, December 7, 2018) or even $2.85million settlement from Seasons 52. (SHRM, May 21,2018).  Despite so few claims being public these types of claims can be damaging to an organization when they do come to light. An example of this is the backlash that Google faced by its employees when they heard rumors that the company had paid executives millions to leave the organization amid sexual harassment allegations (NY Times, October 31, 2018).

The Impact of Exclusive Networks and Implicit Agreements

Many of us have found ourselves sitting in front of a minority executive who, after many years at the organization, during which he or she is highly thought of and receives the highest ratings, is now passed over and has a new boss. When it comes time for calibration and forced ranking, the minority executive is suddenly on the bottom and rated poorly despite documentation of exceptional results. We also see such situations when a female employee in line for succession, unexpectedly is told that the leadership and organization no longer have confidence in her ability and do not support her staying with the organization. Another example is when a gay leader presents a case of discrimination in front of the boss, only to become part of the reorganization that the leader was managing.

Action

We all know that implicit agreements, verbal in nature, are exceptions to our stated policies, and exclusive relationships always put our organizations at risk. These situations often arise due to private networks:

• The agreements are often about a specific role, promotion, or benefit.
• The agreements usually occur outside of the normal practice or published policy.
• The agreements are deemed unfair by those who cannot share in the benefits.
• The agreements can negatively impact morale.
• Networks that have almost no access to others (e.g., minorities and women) will only create benefits for those who have access.

The only way to ensure that we don’t find ourselves in these no-win dilemmas is to take aggressive measures to ensure that the incidents never happen. But how do we achieve this?

Your Checklist

Values:

• Ensure that your organization has and lives values, such as accountability, trust or honesty that align with your own values.

Early Action:

• Address issues as soon as they are discovered.

Training:

• Train your front-line managers and require ongoing training of experienced and high-level leadership on company policies and practices aligned to the values of the organization.
• Integrate diversity, equity, and inclusion practices into all human resource business practices, using real company examples.

Transparency:

• Leaders must be open about issues brought to the organization’s attention.

Consequences:

• Have clear and consistent ramifications for leaders and staff when their actions go outside of the stated policies.

Taking affirmative steps to set the tone, educate our workforce and leaders, and define and align our values provide us with the opportunity to get in front of the divisive issues that can impede and even derail our progressive diversity, equity, and inclusion strategies.

Anise Wiley-Little is author of Profitable Diversity, former chief human capital and diversity officer and Lecturer on Leadership for the Kellogg School of Management at Northwestern University and retired vice president of human resources and chief diversity officer for Allstate Insurance Company. She is also a member of the INSIGHT Into Diversity Editorial Board, and named by the Society for Human Resource Management as one of the top 100 global diversity and inclusion thought leaders. You can find Anise at www.anisewiley.com or www.ProfitableDiversity.com

Originally published in Diversity Business Review, September 2019 www.diversitymbamagazine.com