By Pamela Abbate-Dattilo and Edgar R. Ocampo
Question
In light of recent events in Minneapolis and around the country, what are employers doing to support impacted employees and enhance diversity and inclusion efforts in the workplace?
Answer
As businesses proceed with reopening, COVID concerns are not the only thing on employees’ minds. Many employers are finding their workplaces emotionally charged, with a renewed emphasis on racial equality. Discussions about race relations amid recent events in Minneapolis and around the country have flowed into the workplace. In addition, civil rights groups have called on employers to take a stand against systemic racism. Some employers have decided that passive anti-discrimination policies and practices are no longer a viable or effective option.
One recurring question we have received over the past couple weeks centers on what specific actions employers are taking to enhance diversity and inclusion efforts to improve racial equality in the workplace. Another question we have received is whether employers can/should address these recent events head-on by providing a platform in the workplace for employees to discuss their concerns, fears and frustrations. There are no one-size-fits-all answers to these questions.
Developing an appropriate response requires consideration of your company’s workforce, vendors, customers and level of interaction with the public. We encourage employers to work with competent internal and external resources and professionals to develop a tailored plan for their business. The following are examples of actions we have witnessed employers implement:
Engage and enhance implicit bias training
Some employers have decided that their standard EEO training does not sufficiently cover race discrimination and implicit bias, and have engaged outside consultants and facilitators to perform an onsite training. There is a growing trend in interracial co-facilitation of “equity” or “inclusion” training. These facilitators can be effective in their roles by identifying vulnerabilities from their own perspectives and modeling effective communications by respectfully challenging each other.
However, a poorly executed training can be counter-productive, disruptive and damaging to company culture. Before engaging any outside facilitator or co-facilitators for workplace trainings, employers should ask to review any training materials used in their delivery. Employers should further discuss with facilitators what messages will be conveyed beyond the written materials, the format of any group discussion and/or activities, etc. Employers should also research the facilitators’ reputation and past experience to gauge effectiveness with similar workplace audiences, and ask for references. There is nothing worse than being surprised during a particularly sensitive workplace training.
Hosting an optional roundtable discussion or interactive session
If handled correctly, roundtable discussions and interactive sessions—such as a speaker followed by small group discussions—are often appreciated by employees, and the impact on company culture can be considerable. Some employers are uncomfortable with a roundtable discussion because they cannot necessarily control the conversation and are nervous that something insensitive or tone-deaf will be said.
However, many of these concerns can be mitigated with the use of an experienced moderator who sets the agenda for the roundtable by focusing the conversation on a particular video, article or set of questions. A moderator can balance the voices of less confident participants with those of overzealous contributors to keep the discussion respectful and purposeful. Making the program optional also generally ensures that participants are there to respectfully engage with one another—not to be divisive.
One-on-one check-ins
In lieu of, or in addition to, roundtable discussions or interactive sessions, “one-on-one” check-ins with employees of a minority race are a valuable way to build trust. Face-to-face meetings allow managers to create a human-centric approach, observe body language and gauge responses while showing employees that their feedback, concerns and ideas for growth are highly valued.
Message from the leadership at the top of the organization
Other employers have decided that an internal, company-wide message from the highest ranks is appropriate for their business. The message should be sincere, purposeful and provide employees with resources and an outlet for raising concerns they may have about the workplace. The tone of an organization is set from the top. A message from the CEO about diversity, racism and/or implicit bias can set the right tone and culture.
Reviewing or updating workplace policies
While many employers are revisiting workplace harassment and discrimination policies, employers must not forget about social media policies. A number of workplace concerns regarding race relations stem from posts on social media. In light of recent events, employers across the country have been placing employees on administrative leave or terminating employment altogether for inappropriate social media posts—even comments.
Generally, employers may terminate employment based upon social media posts or comments, particularly where the post or comment is perceived as threatening or hate speech. One caveat is that, under the NLRA, employers may not simply prohibit all negative social media posts or comments. Section 7 of the NLRA protects an employee’s right to “concerted activities,” thus broad social media policies can be found as unlawful restraints. Largely, this is because employees have the right to address work-related issues (i.e., pay, benefits, working conditions) on social media.
For protection under the NLRA, employee social media posts or comments must have some relation to group action, seek to initiate or induce, or bring a group complaint to the attention of management. That said, mere complaints about some aspect of work are neither considered “concerted activity” nor protected. At a minimum, social media policies should clearly delineate that employees must never post anything that constitutes threats, harassment, defamation, bullying or behaviors contributing to a hostile work environment by disparaging others based upon a protected characteristic, including race.
Employers looking to handle internal complaints and/or external employee conduct (i.e., social media statements, attending protests/rallies) in unique fact-specific circumstances will find themselves relying on company policies. Thus, employers should revisit and update, if necessary, the company’s anti-discrimination/harassment policy and social media policy for wording and content—particularly ensuring that the company’s prohibition of racial harassment and discrimination is emphasized.
Creating a diversity task force
Many employers already have a diversity task force that is being reinvigorated or revived. Others are starting such a task force for the first time. Diversity of task force members is important, as is structure around the group (e.g., have a designated “Chair”). Employers should be mindful of identifying the scope, purpose and authority of the task force before launching a group into action.
Reviewing security policies/protocols
Employers who employ security personnel at their offices should review current security policies and protocols with the security company or department that provides the onsite physical security. Employers should evaluate what de-escalation tactics, “use of force” policies, and training or instruction on appropriate uses of force its own security personnel follow when working onsite. Sharing this information with employees is a measure of building trust between the employer and its employees.
Consider a confidential survey
Some employers are considering anonymous or confidential surveys to gauge employee temperatures on racial equality in the workplace. Generally, a confidential survey is favored over an anonymous survey. Not only are employees’ responses kept private, a confidential survey correlates data back to specific individuals, allowing for employers to analyze the data under different demographic filters, such as job role and tenure.
A simple survey can determine the unique and pressing issues facing a company’s workplace. However, if a survey reveals widespread discontent, or particular issues that require immediate actions, employers must be prepared to take appropriate measures to address any concerns raised. It is therefore prudent for employers to work with counsel in determining whether a survey is appropriate and how to structure questions and responses. Confidential employment surveys are only as successful as the efforts the company invests into post-survey measures to effect change. A survey that reveals concerns about discrimination/harassment/retaliation that were never addressed can be problematic down the road, including in litigation.
If you have questions about best practices or resources for facilitating meaningful race-relation discussions, navigating diversity and inclusion efforts, or revising your current company policies, contact your Fredrikson & Byron Employment & Labor attorney.
