Archive for Diversity

Dreadlocks or Your Job…

On September 15, 2016, the United States Court of Appeals for the Eleventh Circuit issued a decision that has caused a lot of interest in the EEO field. The decision, which you can read here, involved a suit brought forward by the Equal Employment Opportunity Commission (EEOC) on behalf of Chastity Jones, against Catastrophe Management Solutions (CMS), a claims processing company located in Mobile, Alabama, that provides customer service support to insurance companies.

Ms. Jones, an African-American job applicant, received a job offer that was later rescinded by CMS, because of its “race neutral” grooming policy when Ms. Jones refused to cut off her dreadlocks. EEOC filed the suit alleging that it constituted illegal discrimination on the basis of Ms. Jones’ race violating Title VII of the Civil Rights Act. The Circuit Court upheld the district court’s dismissal of the complaint under Federal Rule of Civil Procedure 12(b)(6) because it did not plausibly allege intentional racial discrimination by CMS against Ms. Jones.

The Circuit Court found, among other things, that Title VII prohibits discrimination based on “immutable traits, and complaint does not assert that dreadlocks—though culturally associated with race—are an immutable characteristic of black persons.” The decision states that no court has accepted EEOC’s view of Title VII in a scenario like this one, and the allegations in the complaint do not set out a plausible claim that CMS intentionally discriminated against Ms. Jones on the basis of her race.

This was a procedural decision of the allegation of racial discrimination, so the Court did not dive into the merits. Here a few interesting facts of the case:

  • Jones applied for the customer service representative, who is not required to have contact with the public.
  • The job requirements were basic computer skills and professional phone skills.
  • Jones applied online and received an interview in person.
  • She wore a blue business suit and short dreadlocks to the interview.
  • A group of selected applicants, including Ms. Jones, was brought into a room where the HR manager (who is white) informed them that they were hired.
  • Successful candidates had to complete lab tests.
  • No one discussed Ms. Jones’ hair.
  • After the meeting the HR manager asked Ms. Jones if she had her hair in dreadlocks. Ms. Jones said “yes” and the HR manager informed her that she could not be hired with dreadlocks because they tend to “get messy”. Ms. Jones said she would not cut her hair, and the HR manager told her she could not be hired.
  • The grooming policy read: “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines. . . . [H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable[.]”

EEOC argued the following:

  • Race is a social construct and has no biological definition.
  • The concept of race is not limited to or defined by immutable physical characteristics. However, it offered the following to support how dreadlocks are linked to immutable physical characteristics.
    • Dreadlocks are a natural outgrowth of the immutable trait of black hair texture
    • Dreadlocks hairstyle is directly associated with the immutable trait of race
    • Dreadlocks can be a symbolic expression of racial pride
    • Targeting dreadlocks as a basis for employment can be a form of racial stereotyping
  • The concept of race encompasses cultural characteristics related to race or ethnicity,” including “grooming practices.”
  • Although some non-black persons “have a hair texture that would allow the hair to lock, dreadlocks are nonetheless a racial characteristic, just as skin color is a racial characteristic.”

The Court commented that one of the fatal flaws of EEOC’s argument is that it relied upon disparate treatment theory, rather than disparate impact theory. For those of your who are EEO investigators, you’ll be familiar with the difference. A disparate impact claim is one where a policy, neutral on its face, has a disproportionate negative impact on a group on similar individuals. Whereas, a disparate treatment claim is one in which there is evidence that the employer deliberately discriminated against an individual’s protected class (race, color, religion sex, etc.) Since EEOC applied the wrong theory, the suit had to contain factual evidence that CMS sought to deliberately discriminate against Ms. Jones because of her race.

One final interesting note… in the decision, the Court recognized that the “distinction between immutable and mutable characteristics of race can sometimes be a fine (and difficult) one, but it is a line that courts have drawn. So, for example, discrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not.”

This was ultimately a procedural affirmation of the lower court’s decision because EEOC failed to state a claim that Ms. Jones was intentionally discriminated against because of her race.

It begs the question, what if EEOC had alleged disparate impact in its appeal?

We are interested in hearing from you about this very interesting decision that deals with a variety of questions on the issues surrounding race. Share your comments!

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How To Move the Conversation from Diversity to Inclusion

diverstiy inclusionAs experts in our respective fields, we are often called as consultants or coaches to help managers in our organizations manage through an ever-changing, diverse workforce. It’s usually in these situations that you discover a basic challenge: most managers oversimplify the diversity issue and forget that diversity without inclusion can hurt an organization. We’d like to offer a real-life example to illustrate this challenge.

One of the Art of Resolution principals worked as the HR manager for a small organization, in a small town, whose growth had been stagnate for many years, but received funding to increase staffing.   Before staffing-up 38% of the current workforce could retire.   Without the new hires, the organization was close to being in crisis. In little over a year, the organization doubled in size. Most of the original group of employees all had more than ten years with the organization and they were a close-knit group. The new hires were generally younger, many who had just graduated from college. This recent recruitment diversified the age in the organization and provided it with a better representation of their customers, but the new employees lacked experience, they listened to different music, they were just starting families, they used different slang, they relied more on technology and in many ways were very different than the original employees.

As time went on, the divide between the new hires and the original employees grew. The original employees did not include the new employees in informal gatherings; they had nothing in common; they weren’t transferring institutional knowledge; they weren’t working as a team and they weren’t taking advantage of the different views of the new employees that could help move the organization forward. Many of the original employees were intimidated by this new group of employees and feared they would take their jobs and hurt their opportunities for advancement.

Morale was declining by the day.   Management was baffled because they solved the impending crisis – hiring up made them less vulnerable to losing up to 38% of its workforce, but in doing so, they made the original group of employees feel devalued and the new employees felt unwelcome. A second crisis developed.

If you looked on paper at the organization, it had all the external appearances of diversity (albeit one dimension – age). But there were many additional diversity components that were actually a barrier to inclusion.   The HR manager proposed an inclusion plan which included approaching several of the influential employees in the original group to discuss the morale and the impact it was having on the organization’s ability to meet its mission. These group members agreed it was harming morale and together brainstormed ideas to be more inclusive. This included inviting the newer hires to brainstorm ideas for inclusion, inviting them to informal gatherings and ensuring they were represented on employee committees. It also included a plan to capture and share the institutional knowledge in the original group and share it with the newer hires.

This was already a good organization before the growth. They produced quality products. They were timely and were recognized by Headquarters as a high producer, but over the next few months, with this true recognition of diversity and implementation of its comprehensive inclusion plan, the organization flourished to new heights raising the production expectations of all employees.

The story illustrates the challenge of achieving diversity without a plan for inclusion. It also illustrates the important role we all play as EEO, diversity and HR professionals in helping management navigate building a diverse but inclusive environment.

What strategies have you employed to address diversity and inclusion in your organization? We’d love to hear them.

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Join our New LinkedIn Group!

linkedinWe are delighted to announce that we have formed a group on LinkedIn called EEO and Diversity Professionals. We created this group as a virtual gathering place for EEO, diversity, conflict management (i.e., ADR) and human resources professionals to exchange perspectives and learn about the latest developments in our fields.  The group is founded on the notion that EEO, diversity, HR and ADR professionals share common interests and that their success is often predicated on their ability to collaboratively address complex human resources issues by creatively integrating their EEO, diversity, HR and ADR expertise.

We recognize there are a number of superb LinkedIn groups covering these important topics albeit in a highly specialized format. While we believe these groups are extremely valuable, and we plan to continue our active participation in these other groups, we want to fill what we believe is a gap by creating a place where subject-matter-experts from EEO, diversity, ADR and HR gather to get the latest news from our fields and participate in in-depth discussions. Our conversations will be broad and inclusive to be of interest to professionals in the private and public sectors; those who are employed by firms or agencies as well as those who are self-employed. We’ll tackle problems, discuss cases, and share employment and contract opportunities. We will ensure there is plenty of interactivity by publishing routinely informative and thought-provoking blogs. We’ll also invite experts from these fields to post blogs, comment on the latest rulings or directives from EEOC, MSPB, OPM, courts, and other regulatory bodies, and share best practices.   We hope this gathering place will generate tremendous synergy, advance unique ideas, and afford comprehensive solutions to problems we encounter in our respective fields by applying our combined knowledge, experience and expertise.

So, if you enjoy exchanging ideas, engaging in robust discussions and sharing perspectives on human resources topics involving EEO complaint processing, developing and executing successful diversity and inclusion strategies, and managing conflict in the workplace, this is the group for you.  If you are interested in joining, click here!  

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