Don't Do Anyone a Favor-Follow Policy!

Don't Do Anyone a Favor-Follow Policy! 

By: Michael Fryar

Sometimes something so small can turn into an HR nightmare.  Let's take a look at Josie and Melody's relationship for example.  Josie bursted into tears in the middle of the office, a tuna fish sandwich had brought her to a breaking point.  Her co-worker Melody threw an old tuna fish sandwich in her garbage can, the smell was so terrible that it leaked into Josie's workspace.  It wasn't exactly the tuna fish sandwich that broke Josie but instead this incident was the final of a long series of incidents in an ongoing conflict between the two since Melody started working in the department. As a leader, you tried to minimize conflict by sitting them down to talk, you moved their work stations, and even re-arranged the entire team.  So much work went into managing conflict with these two but nothing improved the situation. The tuna fish sandwich made Josie realize that it was time to call Human Resources, within 15 minutes HR had received a phone cal and they were not calling you!  As a leader you try not to be bothered but you sigh, roll your eyes, and pick up the receiver. 

HR starts the call with “Josie is here and is looking to file a discrimination complaint against you.” As a tenured leader you thought you had heard it all, but this just completely caught you off guard.  You’ve gone overboard to try and work with her to resolve the situation.  You become so frustrated you blurt out “Why??”. 

“She’s saying you treated Alexander and Sebastian’s issue differently. Did you follow company protocol with her?

You explain “but that was a different situation entirely. These are very different people.” Alexander and Sebastian were very competitive athletes who were one upping each other in the workplace. It was getting distracting to the team and so I took care of it immediately.  I arranged for Sebastian to be transferred out to another department as per company policy, so I am confused why this is being brought up. 

The HR representative says “so now we’re going to suffer through this. This is exactly why we have workplace policies and why you need to follow them with every employee.  I’ll need to see you down here at 2 pm.”

Let's take a look at what is really going on. 

Disparate treatment

Discrimination used to be obvious when people were not ashamed to admit that they didn’t like someone because of a protected class. But when people got smarter and learned not to admit it, or hide the action, then proving discrimination in the workplace became more difficult. Once upon a time, an employee only had to show a smoking gun – now to prove discrimination the employee needs to show how they were treated differently because of their protected class.

For example, if a Director of Admissions was terminated for three complaints in one quarter but claimed that the other Director of Admissions were not fired after three complaints AND the Director of Admissions was of a different protected class than the other directors the school could be on the hook.

The school would then need to demonstrate there is a legitimate business reason for the termination. The absolute defense would be to show that every employee who receives three complaints is terminated. Failing that, the employer has to demonstrate a legitimate reason for the termination, such as type or severity of complaint. But don’t gloat because it’s not over at that point. The employee has another crack at the issue if they can show the employer had a pretext – for instance, that the employer did not follow its own rules or policy.

Even if you feel bad for an employee and want to give them another chance, you have to treat everyone equally!

Policy, like warning signs, exist for a reason. They are developed because a problem arose and the policy is the solution. Following the policy is the sword and armor of the business. Avoiding the policy actually removes protections and makes the business vulnerable to suit and issues. So while you may think you’re helping someone out or protecting them by stepping outside the system, in reality you could be setting the business up for failure. But policies are not total protection and can create issues of their own.

Disparate impact

Disparate impact occurs when a policy or rule is thought on the surface to be fair but  actually creates a discriminatory situation. This is also known as “unintentional racism” and can be worse at times to root out and deal with than intentional racism because everyone thinks they are doing a good thing. While subjective requirements, such as performance or impression can clearly lead to bad results, believe it or not even objective requirements such as tests or degrees have been shown to have a potential disparate impact 

Griggs v. Duke Power is the seminal case for this area of law. The company started by engaging in blatent discrimination by hiring African Americans to work in the labor department and the highest paying job available there was lower than the lowest paying jobs in the rest of the plant. They were caught and created a requirement that to work in any other department than the labor department you had to have a high school diploma or a satisfactory score on not one but two IQ tests.

The decision stated in part that “practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” The applied court test was to see if the business practice has a discriminatory effect related to a job performance. Since the IQ tests did not measure a job related skill it was found to be discriminatory by way of disparate impact.

To make sure that your policies are not open to interpretation under disparate impact it is best to have a legal professional review them. Ensure all staff then follow policies in place to avoid allegations and accusations of discrimination. We are here to help!  Book a free consultation at www.quincunxconsulting.org