My Rainbow Social can help you find a baker who will not discriminate! Did you hear about the baker who refused to make a gay couple a wedding cake?
This information sheet gives an overview of the religious exemptions to unlawful discrimination in the Sex Discrimination Act 1984.
Intersex status discrimination happens when a person is treated less favourably because that person has physical, hormonal or genetic features.
Bias continues to be a big topic in diversity and inclusion, but there is more to culture change and changing mind-set than taking a test on bias. While understanding bias is one key to diversity and inclusion practices and behaviors, it can be used as a buzz word, “trend or flavor of the month,” or an academic polemic stuck in neuroscience conversations.
Before you decide on a program about bias, think about these two factors.
- Any program that includes bias training must go beyond simple recognition and include mitigation with real examples, accountability, and transformation.
- Training alone doesn’t bring about long-term change. You need to develop and implement an ongoing strategy for creating an inclusive culture that filters out bias in all areas. Transformation has to include people at every level in your organization and every business system and process.
We have a filter in our brain that helps us interpret what we see and hear. It filters out information that is not threatening, not important, and not in our perceived reality.
We form our biases based on our experiences, what we hear and what we see. Based on our biases, we make assumptions and stereotype other people. These stereotypes impact our actions, which can lead to exclusion, discrimination, or avoidance.
We’re not responsible for the messages we received growing up, but we are responsible for what we do once we become aware how these messages influence our thinking.
In addition, not all bias is unconscious. There is bias that is deliberate and conscious, and there is the bias that leads people to stereotypes others and believe they are right. When our bias is unconscious, we’re not aware of our actions and the impact that we have on others. When our bias is conscious or deliberate, we are aware of our actions, but think we are justified because of how we consciously feel about a whole group. It doesn’t occur to us that we might be wrong.
|Learn how to create a culture of inclusion to avoid the damage hidden biases can cause to the workplace culture, when you attend: Unconscious and Systemic Bias: The Hidden Toll on Workplace Culture, Hiring, Productivity, and Retention, presented by Simma Lieberman on Tuesday, February 27, 2018. Click here to reserve your spot today!|
If you think you either have no bias, know you may have unconscious bias, or that you sometimes stereotype others, try this.
Be conscious of your visceral reaction or any thoughts or judgments you have about the next three people you see. What story or impression immediately comes to mind before you give it second thought?
Notice their age, clothing, skin color, and any other visible characteristics at the root of your bias and the first story you created.
Next, create a different story about what they do and who they are. Seeing other possibilities will help filter out your biases and wrong assumptions about people.
Point to ponder: When you have a disagreement with someone who is a different race or gender, is your first reaction to attribute the disagreement to his or her race or gender? But if you have the same disagreement with someone who is similar to you, is your first reaction to attribute it to him or her as an individual?
Bias buster: Stop thinking of individuals who are different as “representatives” of a whole group. Take your brain off automatic and put it on manual. Stay conscious!
Our best clients who are creating inclusive cultures that last take the time to understand their own thinking even if they are uncomfortable. They’re willing to review every system, process, and cultural norm in their organization to root out opportunities for bias and exclusion.
|Simma Lieberman is internationally known as “The Inclusionist,” because she creates inclusive workplaces where employees love to do their best work, and customers love to do business. In 2017. She received the Global Diversity and Inclusion Leadership Award from the World Human Resource Development Congress in Mumbai.
Ms. Lieberman works with leaders of organizations who understand that while training in areas of diversity and inclusion is important, sustainable change only occurs when diversity and inclusion are integrated into the business strategy, and are part of the organization’s cultural DNA. She strongly believes that implementing good diversity management and developing cultural intelligence are necessary for organizations to stay relevant and competitive in tomorrow’s markets.
Her unique ability to view organizations through an inclusion lens also enables her to help leaders in organizations uncover employee genius, and leverage their diverse talents and skills at any level.
HR professionals are all too familiar with the McDonnell-Douglas burden-shifting standard for establishing discrimination from circumstantial evidence. Under the standard, an employee presents a prima facie (minimally sufficient) case that he belongs to a protected class and suffered an adverse action. The employer then presents a legitimate nondiscriminatory reason for its action, and he in turn tries to prove its stated reason is merely a pretext (false excuse) for discrimination.
Each McDonnell-Douglas burden-shifting case is highly fact-specific, and—notwithstanding nearly 45 years of case law applying the standard—reasonable minds still disagree on how much evidence is required to support a finding of pretext. A recent case before the U.S. 10th Circuit Court of Appeals— which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming—demonstrates how tricky such situations can be.
What’s the Big Dill?
“Mike,” who is originally from Nigeria, is a naturalized U.S. citizen who recently experienced the ambiguity of the McDonnell-Douglas standard firsthand. “Neil,” the director of distribution at Safeway’s Denver distribution center, hired Mike to work in the produce warehouse in October 2004. During his employment, Mike furthered his education, earning a second bachelor’s degree (in finance) and an MBA. At some point, apparently following a complaint of discrimination, Neil promoted him to supervisor. The performance of the produce warehouse improved under his watch.
Despite his education, work experience, and achievements on the job, Mike was never able to rise higher up the management chain. In 2012, he applied for two open manager positions. In each case, Neil hired a white male instead.
Mike filed suit in the U.S. District Court of Colorado, alleging that Safeway discriminated against him because of his race, color, and national origin when it failed to hire him for either manager position. The district court rejected his claims and awarded summary judgment (dismissal without trial) to Safeway under the McDonnell-Douglas standard.
Mike’s allegations satisfied his prima facie burden, but Safeway argued it had a legitimate reason for not hiring him. It claimed it had hired other candidates with “far greater potential for success” and “more relevant warehouse management and leadership skills,” and it was concerned about his “leadership and communication skills.” The district court concluded he hadn’t presented sufficient evidence for a jury to conclude that the company’s justifications were pretextual.
It Ain’t Over Lentil It’s Over!
Dissatisfied with the result, Mike appealed the district court’s decision to the 10th Circuit. The appeals court revisited six types of pretext evidence he had presented:
(1) Job qualifications. An employee can show pretext through evidence of a sham review of a rejected candidate or unreasonable denigration of the rejected candidate’s qualifications but inflation of the successful candidate’s qualifications. In this case, the 10th Circuit concluded a reasonable juror could find that Mike, with his two bachelor’s degrees and MBA, was better educated than either manager Safeway hired. One didn’t have a college degree but had 20 years of experience in the Denver distribution center (10 as a supervisor), and the other—an external candidate with warehouse management experience at Chrysler and previous experience at a different Safeway distribution center—only had a bachelor’s degree in business.
Evidence that Mike met his individual and departmental goals and increased efficiency as a supervisor in the produce warehouse established that he had the experience and demonstrated performance to qualify him for the job. In fact, Safeway’s internal talent acquisitions team identified him as a candidate who should be considered for the manager openings, but Neil refused even to interview him.
(2) Procedural irregularities. Disturbing irregularities in employment procedures can also establish pretext. In this case, evidence showed that Safeway typically preferred managerial candidates with a college degree in logistics or business.
However, Neil acknowledged he had authority to—and did—modify the qualifications for the manager positions, limiting the preferred degree to logistics (not business) and allowing work experience to substitute for education. The 10th Circuit concluded that a reasonable juror could believe that these changes were made to rig the process against Mike’s superior educational background.
(3) Past treatment. An employer’s past treatment of an employee can be evidence of unlawful bias or animus, but stray racial comments aren’t admissible unless they’re tied to the personnel decisions or the decision makers. In this case, there was evidence that Neil had treated Mike worse than other employees and had made some remarks that could be perceived as race or national origin-based—such as telling him that his coworkers don’t perceive him well and that in the States, perception is reality; or saying “You can’t call me racist because I hired you.” Because these comments were made by the decision maker, a juror could consider them as evidence of pretext.
(4) Differential treatment. Differential treatment of similarly situated individuals is “especially relevant” to measuring the validity of an employer’s stated justification. In this case, Neil said he wouldn’t promote Mike because the produce warehouse had been underperforming for 10 years and because he struggled to control absenteeism and occupational injuries and had poor relations with coworkers. But one of the manager positions was filled by an internal candidate from the same underperforming warehouse who had been counseled about absenteeism and injury issues and didn’t get along with some employees. This differential treatment cast doubt on the veracity of Safeway’s justifications.
(5) Use of subjective criteria. The use of subjective criteria—such as the “potential for success” and “leadership and communication skills” standards used here—isn’t enough by itself to establish an inference of discrimination. But when such malleable criteria are the basis for an adverse employment action, their use can magnify the inferences raised from other evidence.
(6) Minority employment. A general policy or practice with respect to a disadvantaged group can also support other evidence of pretext. In this case, the Denver distribution center hadn’t had any African-American managers during Mike’s tenure with the company, and there hadn’t been any African-American supervisors until he was promoted (following a complaint of discrimination).
The 10th Circuit acknowledged that any one of those factors alone might be insufficient to establish pretext. But viewed properly all together, the court held that the evidence was sufficient for a reasonable juror to disbelieve Safeway’s explanations for not promoting Mike. It thus reversed summary judgment for Safeway and sent the case back to the district court for further proceedings.
Meat and Potatoes
This case is a reminder that the line between legitimate and pretextual actions can be razor thin—here, even the courts disagreed. But it also underscores the importance of HR best practices that weren’t followed here (such as consistency in job descriptions and hiring protocols) and the value of job-placement audits that might identify and allow you to address potential biased decision makers before you face a lawsuit.
The post Pretextual Failure to Promote Produce Worker Is a Recipe for Disaster appeared first on HR Daily Advisor.
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Why do people discriminate, and what action did-can you take to stop it?