Diversity Training: How To Identify And Resolve Unconscious Discrimination In The Workplace

The Changing Face of Workplace Discrimination:
It seems that the face of workplace discrimination is changing into a less easily recognizable one. Workers continue to be held down based on race, gender and other factors. This despite years of the government, the courts, and society in general fighting patterns of discrimination. While in the past discrimination was more overt and conscious, today’s discrimination is often largely unconscious.

EEOC Seeks to Remedy Unconscious Discrimination:
The EEOC is focused on pursuing unconscious ("systemic" or "pattern and practice") discrimination cases. In FY-2006 monetary benefits for discrimination claims increased 30% to nearly $230 million. In a statement by Mark Benedict Ph.D. while addressing the EEOC (February, 2007), he made several recommendations*, grouped under three broad themes:

1) deepening the EEOC’s conceptual understanding of workplace discrimination;
2) using the EEOC's new Employer Information Report (EEO-1) data to guide systemic investigations; and
3) using testing to address hiring discrimination.

According to Catherine Padalino, Vice President and Employment Practices Liability Product Manager for Chubb Group of Insurance Companies, writing on IndustryWeek.com, the EEO-1 report gives a more detailed breakdown of corporate diversity at different organizational levels than has been seen before, and the agency intends to use that information to uncover likely cases of systemic discrimination.

Furthermore, Padalino adds, the agency offers "performance incentives" to local investigators who identify and pursue class-wide systemic discrimination claims. Even if you are a well-intentioned company, it may be time to examine your organization the way the EEOC might.

According to Padalino some of the factors they’re considering in deciding whether to target you for an audit are:
· Your statistics with regard to hire, termination, and promotions
· Your diversity as seen against the diversity in your hiring area
· Recent cases brought against your organization alleging discrimination
· Recent, especially high-profile, cases brought against other organizations in your industry
· Being in a traditionally "male-dominated" industry

A Very Costly Defense:
Defending a class action suit brought on by a charge of unconscious systemic discrimination can cost considerably more than an individual discrimination charge.
Padalino says, even hundreds of thousands of dollars more… “than an individual discrimination charge (usually less than $10,000 in defense costs).” While large companies may be able to absorb the cost of a discrimination lawsuit, small to midsize firms may be financially wiped out by such a lawsuit.

How to Ward off an EEOC Investigation?

HR Daily Advisor offers the following suggestions:
1. Publish and regularly disseminate your policies prohibiting discrimination, harassment, and retaliation.
2. Establish a written grievance resolution process. If they sense discrimination, you want your employees to complain to you, not EEOC.
3. Involve union leaders, as complaints often come to them first.
4. Check to be sure that your recruitment activities align with EEOC expectations. Keep records to show that job opportunities were widely disseminated. (One form of systemic discrimination is recruiting from only a few sources.)
5. Train managers and supervisors on their obligations, and train all employees on policies and obligations to report discrimination.
6. Analyze your general HR practices and procedures for any signs of adverse impact, whatever motivated it. Have good reasons for your employment decisions.
7. Take extra care in planning and carrying out a reduction in force.
8. Get going on your affirmative action plan (AAP) so that your EEO-1 report won't be a magnet for EEOC attention—or a smoking gun after lawsuits are filed.

The EEOC will continue to do its best to monitor workplace diversity, but your company can avoid scrutiny by employing the above guidelines. By actively recruiting and promoting a diverse work force and following non-discriminatory employment practices, you can attract the best and the brightest employees and lessen your exposure to an EEOC investigation.

* These recommendations can also be found in the documents: Systemic Task Force Report (March 2006) and “Section 15: Race and Color Discrimination” of the Compliance Manual (April 2006).

Nicole Cutts, Ph.D., Leading Success Coach Expert, specializes in Transforming People and Organizations for Success. Visit her website www.cuttsconsulting.com and sign-up for the FREE innovative and forward-thinking newsletter, "Vision for Succes"