December 2007

I’m not a huge fan of diversity departments, trainers or the ever present, “we’re not telling you to consider race in your hires, but you better have more minorities on board by this time next year or it will affect your performance appraisal.”

Then, you have “diversity training.” Carmen has talked about diversity training that is ineffective. But, what if it’s worse than ineffective? What if it opens you up for legal trouble?

Hans Bader at Open Market writes:

Gail Heriot, a law professor and member of the U.S. Civil Rights Commission, reports on the sexual harassment training she received at the University of San Diego, in a state (California) where such training is mandatory under state law. She points out that the training sent the message that criticisms of affirmative action by white male employees are something that the employer should “nip in the bud” through investigations.

This is exceedingly dumb legal advice, since criticism of affirmative action is protected against retaliation by Title VII of the Civil Rights Act, 42 U.S.C. 1981, and other laws, even when the affirmative action program criticized turns out to have been perfectly legal. Even the very court rulings that have upheld private-sector affirmative action programs, such as Sisco v. J.S. Alberici Const. Co. (8th Cir. 1981), have allowed employees to sue employers who retaliate against them for criticizing affirmative action.

Bader goes on to document other nightmares of sexual harassment and diversity training.

What to do, what to do? Companies do such training to prove that discrimination is “not allowable here,” but if they do it in a foolish fashion, they end up in illegal practices. A sexual harassment example from Mr. Bader:

In Hartman v. Pena (1995), the Federal Aviation Administration got sued for sexual harassment after it subjected employees to three days of diversity training that scapegoated white males. After a federal judge refused to dismiss the case against it, the agency had to pay out a settlement to the white male employee who sued.

So, here is the short version of the Evil HR Lady school of diversity training. I’ll be happy to come present this at your company for a small large fee. Contact me for the actual numbers.

1. People are different.
2. We should be polite to people–even those who look/talk/dress/act differently than we do.
3. Jokes about race/gender/religion/sexual anything are not appropriate for the workplace. Save them for your friends and family, not your coworkers.
4. Remember, that when you are with your co-workers or boss, even if it’s at happy hour after work, you are still at work. If you are at the grocery store and you run into your co-worker, you are immediately at work.
5. If someone makes a comment that insults your race/gender/origin/hairstyle/significant other/religion say to them seriously, “I found that comment offensive.” If they don’t know you find something offensive, can you really expect them to change their behavior?
6. If you say something that you don’t mean to be offensive and find out someone is offended, please apologize and don’t do it again. I don’t care that your co-worker is over sensitive and that joke about how many people of [ethnic origin] it takes to change a light bulb is really, really, funny and this is the only person in the planet that finds this joke offensive, apologize and don’t tell it again.
7. Stop being so darn sensitive. Assume that people are not racist/sexist at heart and that their offensive statements are without malice.
8. There is no such thing as a “diverse” candidate. There can be a diverse slate of candidates, which would mean you have a bunch of candidates with different backgrounds. There can be a candidate which would help you achieve your affirmative action goals, but there is not a “diverse” candidate. So, stop saying that.
9. Remember point 2? We need to be polite to everyone.
10. Leave dating out of the office. It only results in problems (and, well, a few happily ever afters, but boy the potential problems are huge and I am in HR and I do worry about such things).

As I said, this is the short version of my diversity plan. But, I think it’s better than the Diversity Trainer who teaches that:

Participants must “come to recognize that race impacts every aspect of your life 100 percent of the time.” Meanwhile, “anger, guilt and shame are just a few of the emotions” whites should expect to experience “as they move toward greater understanding of Whiteness.”

No thanks.

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Is up over at Compensation Force. I’m so glad that the rest of you remembered to submit posts. I’ve been so stressed over Christmas and year end I forgot all about it.

Go over and read it!

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Hi I love your blog, so I am submitting a question/situation that I hope that you can help me with.

So how do I present it to her as a win win situation. She gets to keep an employee that has a lot of knowledge (I have gotten the highest ratings on all of my performance appraisals and performance awards each year). I still get a paycheck without using up all of my leave (which there is only about 8 weeks of due to this medical problem and would be taken when the baby is born). I am willing to accommodate and do what I need to do. She is a very old fashioned person. She is 56 and getting ready to retire in a year. She doesn’t understand computers or technology well. She has never said that I didn’t do a bad job on telework, just that she doesn’t want me to do it consistently. Actually she says I do a good job on it and present constant evidence of what I do while at home. She says she is not one of those people that can be focused and do work from home. I am one of those people. I work best from home! So any help that you can give me to arrange this with her and so that it works for both of us would be greatly appreciated.

Here are the facts of the case as I see them:

1. Your boss doesn’t like telecommuting employees
2. You knew this when you accepted the job
3. You want to get pregnant and telecommute while pregnant
4. You can effectively do your job from home
5. Other women have been allowed to telecommute during pregnancy

I like telecommuting. I work from home from time to time and find it to be quite effective. But, not for everyone.

Your problem is your boss doesn’t like full time telecommuters. Unfortunately, you knew this when you took the job, so it’s not like it was a big surprise to you. Some bosses don’t like it at all. They feel like if they can’t see you, you must not be working.

I’m a big fan of results oriented work, rather than time clock punching. Some managers cannot separate out the two. They are utterly convinced that if you are not right where they can see you, then you must be watching Oprah. (This is false, you are actually watching HGTV and spray painting regular household objects to turn them into Christmas decorations!) Now, I will say that my neighbor telecommutes full time and she confessed that she has procured a board that she places across her bathtub. This allows her to sit in the bathtub, with her laptop, and work in luxury. I told her I hope she doesn’t get electrocuted. I suspect your boss fears just such a set up and that nothing productive can be accomplished covered in bubbles.

So, how do you convince your boss? I suspect at this point you can’t. You’ve shown her all the evidence. You’ve put in overtime from home. Other people do it successfully. You’ve done it successfully in the past. She does not like it.

Pregnancy isn’t automatically covered by the American’s with Disabilities Act. Your high risk pregnancy might be. Depends on how much it affects your life in other ways. Even if it is, telecommuting is not required as a reasonable accommodation under ADA unless it is the only accommodation. This may be your best tactic. If your doctors insist that you must work from home or not work at all, after the second trimester, (I think your OB and Perinatologist are going to pull more weight on this issue than your primary care doctor–don’t push your luck) you may be able to accomplish your goal under “reasonable accommodation.”

It will be difficult for your boss to argue that it doens’t work with the organization because other women do it. (Of course, that begs the question, are men allowed to telecommute? Most pregnant women do not need special accommodation during pregnancy, other than a dedicated bathroom stall, and the more protections we make around pregnancy the less desireable young female hires become. Pregnancy, to me (a currently pregnant employee, I might add) should not automatically result in special accommodations.)

With your doctor’s note and the other people in the department who do so, you may be able to go over her head.

However, have you thought about transferring to a new position? I don’t know how government jobs work, but I imagine you could look into that. Look for a boss that is more favorable to such arrangements. I know I’ve mentioned this before, but you knew she didn’t like telecommuting when you took the job.

Frequently, we accept obligations and then get all huffy when we have to meet those obligations. It’s like marrying someone because you are so sure “he’ll change.” This is one of the dumbest things people do and they do it all the time. (Sure, he drinks now, but once we’re married he’ll settle down. Or, sure, she’s whiny and clingy, but once we’re married she’ll feel more secure and stop whining.)

Good luck with your pregnancy and your job. I hope you can work something out.

UPDATE: Stella Commute gives a much better answer here. She obviously has more experience in this matter than I do.

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Dear Evil HR Lady,

The thing is, I know that as soon as the company’s profits come in line (once the aforementioned evil bunch are ousted), I’ll be able to get my job back immediately. My question is – I know that there’s some time limitation for when you can re-hire someone for a job that they were laid off from. Do you know what this is? I’m in Washington state.

There is no such thing as a time limitation by law. If your company wants to hire you back today they can. If they want to hire you back in 5 years, they can. Any limitation would be imposed by the company itself, it’s not legal.

If you are in a union, there may be recall rights that will expire after a certain amount of time.

If you had to sign any documents, the information should be contained within your release or the accompanying information.

However, please don’t count your chickens before they are hatched, or put all your eggs in one basket or any other poultry related trite sayings. If you “know” you’ll be hired back I have to ask how you know this. You say the bad management will be fired.

Maybe, maybe not. Even assuming you are right and they are completely incompentant doesn’t mean that they’ll actually get fired. It may just mean that they will continue on in their ineffective management style.

Go look for another job. Don’t count on this one to be there for you.

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I got tagged by The Happy Employee, so I thought I’d kind of play along. It’s too close to Christmas to tag anyone else, so I’ll just answer the questions.

1. Wrapping or gift bags?
I wrap, but despise it. I find the whole wrapping thing tedious.

2. Real or artificial tree?
Real. We drive up to the middle of nowhere and my husband saws it down himself. (The farm has men with chain saws that will do it for you, but it’s much more traditional to saw it ourself.) We get a 9 foot Douglas Fir every year. It takes up way too much space in our family room.

3. When do you put up the tree?
First Saturday in December

4. When do you take the tree down?
Sometime in January before the last township tree pick up.

5. Do you like eggnog?
It’s all right–non-alcoholic only.

6. Favorite gift received as a child?
Hungry Hungry Hippos

7. Do you have a nativity scene?
Five of them. The first is a white porcelin one made for me by a youth leader when I was 16. Then I have three international ones–from Peru, Kenya and Nepal. These three were all purchased from 10,000 Villages. They sell fabulous nativity scenese from all over the world. The last is a cheap wooden one, purchased for $1 at a garage sale. The offspring plays with that one.

8. Worst Christmas gift you ever received?
A make-over. Sure, it sounds like a good gift, but the woman who gave it to me alternated between talking on the phone, insulting me, and putting on thick purple make-up. It was a wonderful thought, but it turned out awful.

9. Mail or email Christmas cards?
Mail, but I haven’t sent them out yet this year.

10. Favorite Christmas movie?
It’s a Wonderful Life.

11. When do you start shopping for Christmas?
I would love to do my shopping early, but my husband’s family is very big on “lists” and no one wlll give me a list until after Thanksgiving.

12. Favorite things to eat at Christmas? Fudge

13. Clear lights or colored on the tree?
Colored

14. Favorite Christmas song? Baby, What Are You Going to Be? My parents had this on a Mormon Tabernacle Choir album, purchased in the early ’80s. I would love to find it again, but have been unsuccessful.

And on that thought, Merry Christmas everyone!

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Have you ever had one of those days, where people ask you inane questions? Of course you have. Don’t you wish you could just reply with this bunny picture?

(And somebody sent this picture to me, so I did not take it. If it is your creative work, let me know and I’ll either give you credit or take it down, whatever your preference may be.)

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After reading your response to the women with 2 DUIs, I was hoping you could give me some insight. Here is my story:

I graduated college in December 2004. I accepted a job right away. I was 23 years old at the time. 3 months into my job, I got a DUI. I jumped through all the loops and have not had a problem with drinking since then. The night I did drive under the influence, I had very poor judgment. It definitely was a profound learning experience that I will never let happen again.

Three years later and I am ready to look for a new job. I have been asked to be interviewed by a great company, and they sent me a formal application. Of course one of the questions included is around if I have had any convictions other than a minor traffic offense. Of course I have, and I do plan on disclosing that I got a DUI.

My question is how much will this affect my chance to get the position? Do employers truly not judge, especially if I have had a clean record since?

Employers aren’t supposed to let a conviction affect their decision to hire someone unless that conviction is related to the job. Supposed to is the operative phrase. Will they? Hard to say.

The conviction was 4 years ago and you’ve been good (or not caught!) since. We’ll assume the former. This shows you realized your mistake and are determined not to repeat it. That said, one DUI conviction shows exceedingly poor judgment on your part (which you know).

Personally, if you were my top candidate I wouldn’t let this affect my decision. In fact, I don’t think this type of information should be revealed to the hiring manager. It should be placed on the application and the recruiter should only bring it to the attention of the hiring manager if the job involves driving or operating heavy equipment or something related. I think this should be the case for all convictions.

There are tons of reasons to not hire someone. It’s easy to say, “It’s not because of your old DUI conviction that we’re not offering you the job, it’s because your skill A isn’t as good as another candidate’s.” (Not that anyone tells you why they aren’t hiring you, they just don’t hire you, but if you were to sue, that would come up. I don’t advise suing, by the way. Suck it up and keep looking. That’s my motto!)

I hope you get this job, and I hope you continue not to drink and drive.

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I am student and I am doing a project on social situation in HR. Do you have any ideas that I could do my project on? I was thinking about presenting information on Christmas and Halloween parties at work. Thanks for your help!

Since the semester is now undoubtedly over, and you had to do your own darn homework (see how evil I am?) I’ll respond to your question.

Work is work. Social life is social life. Don’t confuse the two. You are at a work party? Party on, dude, right? No. You are still at work. Work=work. You are hanging out with friends and your boss happens to be at the same restaurant. You now must be on work behavior.

I am such a party pooper. (It’s genetic, by the way. When my siblings and I complained to my grandmother that my father didn’t understand the teenage need to do fun stuff my grandmother said, rather matter-of-factly, “your father was never a teenager.” I have now turned into him, except for his insane desire to get up at 5:00 a.m. What is up with that?)

When I’m queen of the universe, work parties will occur during lunch. Free food (good food, please) and no alcohol will be served. See, party pooper? (Full disclosure–I don’t drink anyway, so I don’t feel slighted in such situations.)

When a company sponsors an event, liability attaches. You serve alcohol and you better make sure people have a way home that doesn’t involve driving their drunken selves.

Employees (especially the non-management types) feel obligated to attend company parties, regardless of whether they want to or not. This makes it another “work” function. Even if you invite spouses/significant others to make it a real “party, all that means is that now your employees have to find a babysitter, pay a babysitter and spend an evening with people they see all day anyway.

Okay, so I don’t like office parties. Other people do. I’m happy to hear their opinions. Just don’t make me come to your office parties.

Halloween costumes? Sure. I’m all for them. During the day. Depending on your business.

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A reader sent me a link to this article about a Florida company which has banned all employees from smoking–even at home, and asked for my thoughts.

I don’t know why this reader thought I’d have an opinion on this, as I seriously lack opinions.

Ha, ha, sorry about that. Here’s my opinion. I think Franklin D. Roosevelt was a terrible president and that the New Deal did more to damage the United States than almost any other policy. (What policy would fall into the “almost” category, I don’t know off the top of my head, but I’m leaving it open in case I remember something.)

I am not some rambling mad woman (well, yes, yes, I am, but not on this topic. Do you realize how many days until Christmas and that payroll wants any changes for the January 15th pay by this Thursday? Are they mad?), this actually relates.

New Deal legislation prevented companies from paying market rates for jobs. This was in the hopes that companies would hire more people. What happened is that companies began offering non-cash benefits, such as health insurance, to attract employees.

The government encouraged this by giving company offered health insurance tax breaks, not offered to individuals. As a result, more companies began offering health insurance.

Good, right? I don’t think so. This Florida company shows the end result of that. In order to get good employees you have to offer good health benefits. In order to offer health benefits you need to be able to pay for them. If your employees are sick or have bad habits (such as smoking, drinking or eating entire cartons of Ben and Jerry’s ice cream–one carton does not equal one serving, by the way) then your health insurance costs go up.

Solution? Have healthier employees. How to do this? Well, prohibiting smoking sounds like a pretty easy way to do so.

Don’t like it? Get a different job. Still don’t like it? Complain to FDR.

Boy, I’m all political today. Vote Herbert Hoover!

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