- U.S. and International Employers: Now Is the Time to Reaffirm Your Commitment to Diversity and Inclusion
- December 5, 2016 | Authors: Carson G. Burnham; Bonnie Puckett
- Law Firms: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Boston Office ; Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Atlanta Office
- No doubt walking a difficult line in the wake of the election results, human resources professionals are tasked with cementing their companies’ position as equal opportunity employers. At the same time, female employees, employees with diverse racial and ethnic backgrounds, employees from different countries, and non-U.S. citizens working for U.S.-headquartered companies may be feeling intimidated by news reports of hostility in the workplace. Some employees may feel silenced and fail to take advantage of internal complaint procedures, decreasing the prospect for internal resolution. Others may feel threatened and triggered by statements or actions.
As a result, employers should consider taking steps to reiterate their commitment to diversity and inclusion and reassure potential victims of harassment and discrimination. This may include, for example, updating or recirculating the relevant policies and protocols-those related to diversity and inclusion, harassment, and bullying, as well as processes and procedures for initiating an internal complaint. Employers that have not yet covered these topics comprehensively in policies may likewise take the opportunity to do so.
To be sure, making a timely statement about diversity, harassment, and/or discrimination risks an interpretation that the company is protesting the new administration. Concerned employers can (1) include disclaimer language to assure employees that a reiteration of the company’s harassment and discrimination policies does not amount to support of either of the presidential candidates; (2) invite anyone with questions about or who wishes to discuss the statement to contact a specific person in human resources; or (3) frame the restatement in an organic way, such as through an existing meeting or policy review that also addresses other subjects.
In evaluating your policies and codes of conduct, there are a few specific considerations (particularly for employers with operations both within and outside the United States) to take into account. Multinational employers in particular may wish to consider taking a “global view” of diversity and inclusion even where it may exceed local legal minimums.
Global employers may wish to reconsider minimum definitions of harassment in their equal employment opportunity (EEO) policies. Limiting the definitions of “discrimination” and “harassment” to categories protected under the most restrictive applicable local laws makes sense given how widely these laws vary between jurisdictions. For example, Ontario, Canada prohibits discrimination on “record of offences” (i.e., employees that have been convicted of certain minor crimes), and Germany prohibits discrimination against employees based on “beliefs,” whether religious or secular.
Employers may wish to consider a broader policy statement of tolerance and inclusion that encompasses certain categories regardless of local law, for example, ethnicity, race, color, gender identity, gender equality, concern about sexual or racial harassment, physical or mental disability, and political ideology. Because some countries actually require discrimination in certain situations (for example, some labor laws contain limitations on night work for women, or mandatory retirement ages that would contravene U.S. age discrimination principles), a global policy should always expressly state that it applies “subject to applicable law.” Employers can also consider strengthening language prohibiting bigotry, sexism, racism, homophobia, and xenophobia in action or attitude. Reviewing sexual harassment definitions and examples to ensure they are comprehensive and instructive may also be helpful.
“Bullying” or “harassment” not tied to a protected category violates the law in an increasing number of non-U.S. jurisdictions. Employers with a global view may wish to enshrine a general anti-bullying statement into their policies. Policies may contain a nonexhaustive list of behavior that could constitute bullying or harassment, such as imposing unreasonable deadlines, humiliating workers or third parties, withholding material information to reduce an individual’s effectiveness, and blocking training opportunities. Policies prohibiting bullying should also make clear that bullying can take place in person in addition to over email, instant message, text message, or social media. Policy owners should remain mindful that even bullying that occurs outside the workplace may create risks for employers.
Discipline for Violations
Make clear that violations of harassment, bullying, discrimination, and retaliation policies subject the violator to discipline up to and including termination. Outside the United States, this means you may also need to implement the policy properly to enforce it-including consultation with works councils, unions, or employee representatives where applicable.
When overhauling tolerance/inclusion policies, include investigation protocols in the review-and ensure thoroughness and fairness when investigating complaints. Companies may wish to conduct a review of their investigation protocol, as well as how the protocol is implemented in various jurisdictions. Call-out provisions in investigation protocols include:
- Employers should look for clauses that may impose undue pressure on employees to resolve issues themselves or that permit employees to raise issues only with their immediate supervisors;
- Management should observe due process to ensure that discipline will hold up to challenge. Some countries give employees under investigation the right to an accompanying representative during a meeting-management must be aware of all available legal protections.
- Generally speaking, to protect companies in situations in which claims are possible on both sides, investigations should conclude with actual written fact-finding, including credibility evaluations, rather than reaching a legal conclusion, such as “lack of sufficient evidence.”
- Look at data privacy compliance protocols, since employees in certain countries with data-protection laws may raise claims that their data privacy rights are violated when investigation-related information is collected, processed, used, or transferred.
Last but not least, an audit of retaliation language is critical to your tolerance efforts. To make employees feel safe, it is incumbent on employers to protect employees from retaliation and to ensure and promote a positive and respectful working environment. Strategic placement of anti-retaliation language in policies and procedures-even in countries without the U.S.’s robust retaliation jurisprudence-can help foster a culture where employees feel protected to report without reprisal, reduce legal risk, and increase workforce morale.
While no easy answers exist in a divided political climate, the timing is ripe for reflection on and reaffirmation of diversity and inclusion.