The Advantage

April 2000

Staying Out of the EEO Doghouse: An HR Grievance Process for a Non-Union Organization

Managers and supervisors today carry the burden of personal liability in addition to their actions bringing potential liability to their employer. At worst, it's a game of chance for untrained managers. The game they play is "You Bet Your House." With a little forethought, and some careful employee communication, the odds of that game can be made to swing in favor of a careful manager.

It goes without saying that employees are more knowledgeable about their rights in the workplace than they were in years past. It should also go without saying that state and federal laws have taken over many of the protections once only offered by unions in this country. Many of those protections are related to Equal Employment Opportunity.

For years, American employers have relied on an employer-employee relationship called "employment at will." Actually that is a legal doctrine that comes to us from Old English law. Essentially, it means we will work together until one of us decides to end the relationship. That can happen for "just cause" or for no reason in particular. Today's manager is faced with requirements of legislation designed to limit employer freedom in terminating employees. Equal Employment Opportunity laws represent some very tight restrictions on employers in that regard.

We may not terminate or take disciplinary action against any employee who exercises their rights under EEO laws. That means, any employee who complains of illegal discrimination cannot be punished for making the complaint, whether the complaint is valid or not.

Staying out of the EEO doghouse is really easy, if you have a clear understanding about what information is "fair game" in your business decision making. National EEO laws tell us we may not make our decisions about employees based on their race, color, religion, sex, national origin, pregnancy, use of family care leave, veteran status, disability or age (over 40). We can, however, make our decisions about employees based on factors such as job performance, education, job experience, time in grade, seniority, attendance, punctuality, and specific job-related skills. Since illegal discrimination carries with it large financial penalties, it is in the interest of every employer to ensure management decision making is done based on proper job-related factors.

It is even more serious when managers and supervisors initiate illegal discrimination in the form of harassment. There are numerous court cases that show how individual managers were held personally liable for their harassing behavior. Some of them have lost their homes in the wake of such court assessments. Those who are cavalier about their personal treatment of employees can discover the pain of court-imposed remedies.

You are more conscientious in your approach to management, or you wouldn't have started reading this article. You already test each management decision by asking "Is it based on legal, job-related factors we can support if challenged?"

Now you are interested in deciding how to handle those situations that arise in your workplace when people have misunderstandings or communication fails to work as well as it should. You need an internal grievance procedure.

Even though you run a nonunion organization, you can still establish a process for handling employee complaints. You can call it a grievance process, a complaint program, an open door policy or something else. Whatever you call it, you will find such a program can be extremely helpful to your employees, and ultimately to the organization.

Creating an employee complaint program is the easy part. Making sure it is implemented and maintained is the hard part. It takes constant care. It requires protecting those who you believe are making frivolous claims and wasting your time. It takes a dedication to giving everyone an "honest hearing" and checking on the facts. That takes effort. Done correctly, though, your effort will be rewarded by employees who are convinced you are managing fairly and carefully.

Step 1: Establish a formal policy inviting employee complaints. Put your policy in writing. Invite employees to submit their complaints to any management person or to a specific manager who will handle complaints for everyone. Resolving complaints internally can cost one-tenth what it will cost if employees file their complaints with EEO protection agencies.

Step 2: Honestly and thoroughly investigate each complaint. Talk with the complaining employee, the accused employee or manager, and any witnesses to what happened. Review your policies and discuss legal requirements with your management attorney. Decide if the complaint is valid. If it is not, decide how you can clearly communicate why it is not. If it is, decide what remedial action you will take to correct the problem.

Step 3: Provide feedback to the complaining employee. Always "close the loop" with the complaining employee. Explain what you have decided to do based on the complaint. If someone will be disciplined because of the complaint, be sure you let the complaining employee know that. Emphasize everyone's personal privacy rights. Thank the employee for using the complaint process and encourage him or her to let you know if there are any repercussions as a result of the complaint. Explain that you will not tolerate retaliation of any kind.

If you take those three steps, use your management advisors wisely, and communicate clearly to your employees that you truly wish to have them feel free to use your complaint process, you will discover it is a positive management tool. If it is implemented carelessly, or allowed to suffer manipulation, employees will quickly take their complaints elsewhere. Often that means legal action and great expense to the employer.

Stay out of the doghouse. Develop a formal employee complaint handling process and work diligently with your staff to implement it. You will be glad you did.

William H. Truesdell is president of The Management Advantage, Inc., a firm specializing in employer policies and EEO issues. He can be reached by email at BillT@management-advantage.com or through his firm's web site at www.management-advantage.com.

Are You an Applicant Abuser? (Don't Beat Up Jack)

Unlike discrimination, regulators have not effectively addressed abuse of applicants. It is encountered so often it is expected and silently endured by applicants. How are applicants abused? Certainly not on purpose, but you could be abusing job candidates while feeling you have treated them well. How?

Let's take a "routine" hiring at ABC Company. The process lasts about 8 weeks. Two rounds of interviewing take place. All laws are followed, as well as company policies. All those involved at ABC felt that the hiring went well.

From the point of view of the applicants, it did not go well. None complained to ABC or to a regulatory agency. None filed a lawsuit. Not one applicant filed any type of protest. So how were they abused? What could ABC have done better?

Let's follow Jack through his application with ABC.

Jack feels very good about his chances of success, because his qualifications appear to closely match or exceed what ABC was looking for. He sends his resume in with a cover letter and waits for a response.

While waiting, he talks with his family and friends regularly about his job search. He tells several people that he feels he may have a chance with ABC. After waiting a week and hearing nothing, Jack feels a bit concerned and calls ABC's Human Resources Department to see if they received his resume. An HR clerk tells him that all the resumes received were forwarded to the Systems Manager. Jack now gets frustrated and a bit upset, because he does not know what the status is on this possible future career.

After waiting two weeks, Jack feels that the chances are very slim he will hear anything from ABC and essentially writes off the prospect. He feels bad and cannot understand why he was rejected.

After three weeks, he is surprised to hear from an HR clerk at ABC who is scheduling interviews for the following week with the Systems Manager. Jack's emotions take another turn as he again adjusts to the possibility of employment at ABC.

He prepares for the interview. He tells family and friends that he has a promising interview coming up, explaining that this was the opportunity that he had written off.

Jack goes to the interview and feels good about how it went. Now he again waits with no information about what is going on at ABC, but he has no reason to believe it is not the final interview. He expects some kind of notification in a day or two of the final selection either a job offer or a rejection. Waiting at this point is agonizing. His wife and family wait and worry with him, wondering what is going on.

After two days, he again starts to assume that no news is bad news. But why can't they at least tell him he has not been selected? Jack is starting to have feelings of frustration and anger at ABC for keeping him in the dark. When, at five days, Human Resources at ABC calls and wants to schedule another interview; he feels surprise, stress, some optimism, and some suspicion. Why was he not told at the first interview that there may be another interview? How many candidates are still in the running? Five? One? What can he do to prepare for the second interview? What is the purpose of this interview and who will be there? Not knowing what is happening is causing Jack to lose sleep, and he gets cranky and irritable.

The second interview is held and Jack feels he has done very well. He is now feeling optimistic again but still resentful of not being told what was happening. This time he asks the interviewers when they might make a decision. They tell him "soon".

He tells himself not to get stressed waiting, but that is not possible. He is confident but starts the same wait one more time with its accompanying agony. He thinks about how it will be working at ABC, but his wife reminds him he has not yet been offered the job. A week of waiting now causes unbelievable worry, stress, and frustration. His feelings toward ABC now are very mixed.

At last Jack receives a rejection postcard from Human Resources thanking him for his interest and time. He is of course devastated, confused, and highly resentful.

Do you operate like ABC? If you do, you can be causing not only mental abuse of your applicants, but creating unnecessary resentment with a person who is in your industry. That can spread and cause real damage to your organization's reputation.

The simple answer to avoid this problem is twofold:

1. Reduce the time from announcement to selection. With planning and commitment, this can be done.

2. Keep applicants well-informed at every point in the process. These two simple and easy efforts will pay off for your organization dramatically. You will keep goodwill, you will retain more applicants, you will find some applicants re-applying to you, referring you to their friends, and spreading the good word about your organization. A little effort and awareness goes a long way.

Wayne D. Ford, Ph.D., is an expert in human resource employment functions such as recruiting, job placement, screening & selection. He is the author of eleven books, including "The Accelerated Job Search" which you will find in the Web Store for Professionals? at Job Search. He can be reached at DrWayneF@management-advantage.com.

Power Tools: Skills for Life

Most of us have experienced situations in which we rose to the occasion utilizing our power and composure in one set of circumstances, but when faced with a similar problem in a different environment, our power and skills seemed to vanish into thin air. For instance, let's say you skillfully handle dissension in the workplace, but you cave in at the first sign of rebellion at home. Excited at the prospect of using your creativity, you deftly pull-off a holiday reception, but you feel blocked when asked to organize the management off-site retreat. The scenarios beg the question, "If I can use a skill in one situation, why can't I use it in another?" The answer is "you can." Most people already posses tremendous power they are not plugging into. Try thinking of skills as tools. A tool is simply a piece of equipment that we use to accomplish tasks and make doing so easier. You possess a wide variety of tools that are the skills to help you manage your life with proficiency. Whether you spend your days in the boardroom or the classroom, in the administrative office or on the sales road, in a skyscraper or a split-level, there are a number of essential tools you need to build a structure for personal satisfaction and professional success. So what are our power tools? They are a set of effective interpersonal skills that can be used productively in a variety of situations. We all carry these basic tools with us, whether we are aware of them or not. The key is to identify them, realize when you use them, practice them in other circumstances, perfect them and learn to transfer them from situation to situation.

Awareness of your tools is one thing, but how you use them is another story. Using power tools won't always play out the way you plan. There are a variety of internal and external reasons that your best efforts to transfer skills from one situation to another can be sabotaged:

If you can identify the hurdles that you may be placing in your own way as well as those that other people place in your path, you should be able to refine your skills to overcome most obstacles. Focus on customizing the tool to meet the situation. It is the tool that is the key, not the environment where the tool is used. The key for success is the ability to improvise. Trust your instincts, practice utilizing your tools and remain flexible in your strategy by creating back up plans for unexpected situations. Everyone has the ability to acquire and use all of these tools. For some, the tools will be simple habits to acquire; for others, it will take some practice. If you have successfully demonstrated a skill in one area of your life, you can "take it with you" and use this skill in other areas. Mastery comes with practice. Each one of these tools will serve as an invaluable resource for your personal and professional lives. The more tools you possess, the more likely your interpersonal success. Plug in and power up your life!

Joni Daniels, Principal of Daniels & Associates, is a dynamic speaker with over 20 years experience presenting topics related to personal and professional development. She is also an instructor in management topics at the Wharton School's SBDC. She can be reached at JDanAssoc@aol.com, 215.635.5359, or http://hometown.aol.com/JDanAssoc/index.html.

Finding Information About Presidential Candidates

The year 2000 begins another U.S. cycle of politics called presidential elections. Many primaries have already happened in various states. Many more are yet to come. Culmination of the process will arguably come on November 7th when voters go to the polls and cast their ballots for the next federal leader.

Selling presidential candidates is big business these days. Campaign budgets run into millions of dollars. A good portion of those budgets is spent on TV advertising "spots" and radio commercials. Between those paid advertisements and the unpaid "sound bites" heard each evening on national news programs Mr. & Mrs. America are expected to decide among the lot of candidates and pick their personal favorite.

Yet, here and there around the country, there are still folks who enjoy learning more about candidate positions on key issues. If you are among them, or know someone who is, the following web resources may be of interest to you. We take no credit or responsibility for what you may find at any of these web sites. We simply offer them to you as possible sources of information beyond that which comes to you in "sound bite" form.

Supreme Court Limits Class Protected by ADA

Recently, in three cases, Sutton v. United Air Lines, Murphy v. United Parcel Service, and Albertsons v. Kirkingburg, the Court took a narrow approach to the determination of who the ADA covers. In those cases, the Court held that persons with physical impairments who can function normally with mitigating measures, e.g., when they wear their glasses or take their medicine, are not generally disabled under the ADA.

Although the ADA has a fairly comprehensive scheme for determining if someone is disabled, the statute itself does not clearly state if mitigating measures, such as medications, should be taken into account. In other words, if medication sufficiently controls an individual's condition so that the individual is not substantially limited in a major life activity, is that person still considered disabled under the ADA? Lower federal courts had given different answers to that question. Most courts considered an individual's condition in an unmedicated, or unmitigated, state. Other courts disagreed, holding that disability should be determined in light of mitigating measures. The Supreme Court decided to hear the Kirkingburg, Murphy, and Sutton cases to resolve the issue. The Court adopted the common-sense approach: Take employees exactly as they are, mitigating measures and all.

IMPLICATIONS FOR EMPLOYERS

Employers can count the new Supreme Court cases as a major victory. But employers should not allow these cases to lull them into a false sense of security. A very real possibility still exists that even individuals successfully using mitigating measures are still disabled under the law. The decisions have other important implications as well.

1. Even with successful mitigating measures, employees can still be "regarded as" disabled.

Although individuals may not be actually disabled under the new Supreme Court rulings because a mitigating measure corrects the effects of their medical conditions, the law still protects them if their employers treat them as if they are disabled. By definition, these individuals are considered disabled under the ADA. For example, assume someone with major depression takes an anti-depressant that completely controls his condition. His employer learns he is taking the medication, and discharges him based on a perception that people taking psychiatric medication cannot successfully perform their jobs over the long-term. In this example, the employer in effect "regards" the employee as disabled. Therefore, the employee would be protected from discrimination under the law.

2. Be careful in setting physical standards. The Supreme Court made clear in these three cases that employers have the right to set certain physical standards for employment. However, this doesn't mean employers can set any physical requirement for a job that they want. Instead, they need to make sure that any such requirements are job-related. In other words, would the physical requirements enable the employee to better perform the essential functions of the job? If not, the restrictions probably violate the ADA.

3. Remember that negative effects of medicine must be considered, too.

In its recent decisions the Supreme Court said that both positive and negative effects of mitigating measures must be considered in evaluating someone's disability status under the ADA. In other words, medications or other medical aids may not only prevent someone from being disabled; they can also cause a disability. For example, suppose someone has been diagnosed with a very early stage of cancer. At this point in the disease's progress, the individual still feels well and is not limited in any major life activity. Her medical condition has not yet caused her to be disabled. Now, assume this same individual undergoes an aggressive course of chemotherapy to treat the cancer. Also assume that, due to the chemotherapy's severe negative side effects, the person becomes limited in such major life activities as working or caring for herself. This person is now disabled under the ADA, not because of the effects of the cancer, but because of the effects of the treatment for cancer.

4. Be wary of partially successful mitigating measures.

Some individuals may employ mitigating measures that improve, but do not completely ameliorate, their medical conditions. If such individuals remain substantially limited in one or more major life activities despite their improved condition, they are still disabled under the law.

5. Watch out for issues left unresolved by the cases.

As lower courts and businesses begin applying the rulings in these cases to real-life situations, they will need to continue addressing some important unresolved issues. For example, what about people who simply refuse to take medication or to use another mitigating measure that would correct their medical condition? Can they be considered disabled under the law if they are, in effect, functionally impaired by their own choice? The EEOC has split the baby on this issue. In its recent guidance on reasonable accommodation, the agency declares, on the one hand, that an employee's failure to take her medication does not relieve the employer of its duty to provide a reasonable accommodation to the employee that would enable her to perform the essential functions of her job. On the other hand, according to the EEOC, an employee who does not take beneficial medicine that would enable her to do her job, and who cannot be reasonably accommodated, might not be considered "qualified" for the job. In such a case, the ADA would not protect her.

Timothy S. Bland is a management attorney with the Memphis office of Ford & Harrison LLP, and can be reached at tbland@fordharrison.com.

4th Edition of AAP Book Draws Acclaim

Secrets of Affirmative Action Compliance has been a "hit" among human resource professionals since it was first published in 1996. It has just been updated and the 4th Edition is now available.

I love the book and could hardly put it down. I haven't finished it but it is a high priority for me. Really, really super job ... -- Nationally Known HR Consultant

Exceptionally well done. Easy to follow and understand. -- Diversity Manager, Fortune 100 Company

Written so even I can understand how to make sense out of the confusing federal regulations. Thank you for a good hands-on guide. -- HR Manager, New Federal Contractor

These are just some of the comments we have been getting from purchasers of "Secrets of Affirmative Action Compliance, 4th Edition." If you are involved with federal contracting and the compliance of affirmative action, you will want to have your own copy handy. You can order your copy today at our Web Store for Professionals(tm). Go to www.management-advantage.com and visit our HR Books & Manuals department.

Words of Wisdom

*** It is far more impressive when others discover your good qualities without your help.

*** If you tell the truth, you don't have to remember anything.

*** Never mess up an apology with an excuse.

*** Don't be irreplaceable. If you can't be replaced, you can't be promoted.

A Gentle Word on Behalf of Our Business

When you need help developing your affirmative action program, give us a call. We specialize in AAP development, implementation training and compliance review support for clients all over the country.

You wouldn't go to an IRS audit alone. Why think about going into a Department of Labor compliance review without professional support? The stakes are just as high either way.

We are ready to give you the support you need.

And while you're at it, think about ordering a copy of our reference and training book on preparing affirmative action plans and managing compliance reviews. You will find it an invaluable resource at a price that just can't be beat.

"Secrets of Affirmative Action Compliance," new 4th edition, contains 530 pages of the latest and current regulation requirements and practical suggestions for your organization. Includes new Federal Regulations. $99.95 plus $7. shipping/handling and CA sales tax for CA destinations. Credit Card Orders ... Call Toll Free:

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We can help with your other human resource management needs as well. Think of the next time you need:

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