When Words Mask Discrimination

A supervisor criticizes an employee, referring to the female clerical worker as "another foolish person whom we shouldn't have hired." The employee, in turn, feels that the supervisor's criticism is, in effect, a form of racial harassment.

I don't know what the supervisor meant by his unfortunate choice of words; however, his criticisms should have referred only to the employee's.

Obviously upset by those words, the employee consulted a lawyer who subsequently informed her that she had been victimized by racially charged code words. The lawyer said he would be happy to sue the woman's supervisor and his employer under Title VII of the Civil Rights Act.

A crazy scenario? Not really. For many years the law has required that the workplace be free of explicit racial epithets; however, meeting those minimum requirements is no longer sufficient. Employers, human resources executives and supervisors must now make sure that the workplace is free of any words that can be cons1d as racial code words.

The Court of Appeals for the 3rd Circuit clearly spells this out in Aman v. Court Furniture Rental. The court stated that racially implicit code words can indeed create a workplace environment that violates the civil rights of employees.

The court further stated that "while Title VII does not prohibit racist thought, the law does require that employers prevent such views from affecting the work environment....Title VII tolerates no racial discrimination, subtle or otherwise."


What can employers and human resources executives do to avoid being the targets of such suits?

To begin, racial epithets, implied or explicit, have no place in the workplace and should be extirpated by all responsible employers. While no employers had been informed, by either legislatures or judiciaries, that such expressions as "you people," "poor people like you" and "one of them" are racial code words, the Court of Appeals stated that those specific words can be evidence of a pattern of conduct that indicates a hostile work environment. Therefore, it is up to individual organizations to be proactive in preventing such expressions.

The rules of the workplace have certainly changed, and human resources executives have a new responsibility to make sure that all new hires, especially supervisory personnel, understand what constitutes racial code words.

In order to avoid being targets of lawsuits under Title VII of the Civil Rights Act, every company should formulate an employee policy on the use of code words. The policy should give examples of code words to be avoided, such as those noted in the box to the left, and establish a complaint procedure in the event that such words are uttered. In addition, each company should make all supervisory personnel sensitive to possible interpretations of subtle code words and train them to "nip such problems in the bud" so they can correct potentially inflammatory situations before they give rise to legal issues. Furthermore, each company should be prepared to conduct seminars or initiate other means of communication (written or verbal) for teaching employees about how to avoid the use of offensive words. Finally, each company must regularly communicate to all of its employees that any violations of code-word rules will result in termination or other sanctions.

Altogether, employees and employers should avoid racial code words in the workplace, not only because such expressions will result in a racially charged and hostile work environment that will significantly reduce productivity by diminishing worker morale, but because the utterance of such words will probably result in expensive and time-consuming litigation as well as enormous judgments.

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Labor Relations without Interference

Union membership has steadily declined since the mid-1950s. Since 1975 alone, membership has dropped by over four million to its current level of approximately 18 percent of the workforce. In response, union leaders have vowed to reverse the trend of the last three decades through aggressive recruitment and by investing huge sums in organizing efforts. Leaders are also using new methods to attract members, including "associate" memberships, low-interest credit cards and discounted legal service plans. In short, unions are utilizing the latest administrative, technological and psychological approaches to regain their stature in today's workforce.

Employers, particularly those in the growing service sector of our economy, must be prepared to meet the challenge of the aggressive and increasingly sophisticated organizing drives by unions. Management may most effectively meet this challenge by asking themselves why unions have been necessary and then structuring a work environment in which they are unnecessary.

A work environment in which unions are unnecessary is one which stresses employer-employee cooperation, open and effective communication, understanding of shared goals, joint problem solving based on mutual respect, positive leadership and direction. Such an environment will produce a cohesive, productive workforce which has no need for or interest in a union.

The cornerstone of this type of proactive work environment is a workforce which recognizes that the employee's individual interests are the same as those of the employer and that these interests are best achieved through mutual cooperation. An employer can build and maintain a cooperative workforce by using a system designed to hire those employees who will work most productively within that company.

The Work Philosophy: Commitment to Cooperation

The current workforce and work environment must be evaluated before it is possible to design an effective hiring system. This evaluation is best accomplished by interviews with selected members of management. These interviews accomplish two goals: they define the company's "work philosophy" and allow the company to formulate a description (or "wanted poster") of the employee who will work most productively within that company's work environment.

A company's "work philosophy" is a policy statement regarding its commitment to cooperative employee relations and the advantages of operating without interference from organized or outside representatives. All levels of management, particularly top management, must be fully committed to the principles outlined in the work philosophy if it is to provide a strong base for an effective hiring system. For that reason, the philosophy must be an amalgamation of top management's views, ascertained through their initial input, of the type of employee relations environment which is appropriate for that company.

Profiling the Ideal Employee

The initial information gathered from management can also be used to develop a profile or "wanted poster'' of the ideal employee. This profile defines specific behavioral attributes and values, but should not be an outline of personality characteristics. Instead, it must emphasize prospective employees' propensities for cooperation on the job and their past work experience.

One starting place for a profile is an evaluation of the company's existing workforce. Supervisors and managers should be asked to describe those employees who are "successful"' from both the company's and their own points of view and those who are "unsuccessful." Those interviewed should be cautioned to avoid describing employees' personality traits. What is more important is how employees view:

  • The work they do,
  • The people to whom they report,
  • The company's policies and procedures, and
  • The employees with whom they work

For example, the initial evaluation could determine the amount or independence which is suitable for an employee of the company. It could also determine whether the work requires employees to think for themselves and adapt their work habits to specific situations, or if it requires employees to conform to a standardized pattern of repetitive work.

As an alternative to interviewing supervisors and members of management, the preliminary information may be gathered through an opinion survey. An opinion survey allows supervisors to express their unbiased views regarding the existing workforce and has the added benefit of eliciting the supervisors' opinions and attitudes about their work environment in general.

Once a sampling of "wanted posters" has been gathered from management and supervisory personnel, their descriptions can be distilled into a list of desirable and undesirable characteristics. These characteristics form the backbone of an effective hiring system and should define both positive and negative attributes. In other words, it is important to know the characteristics an interviewer should look for in a prospective employee and those an interviewer should seek to avoid. A profile of this nature provides a company with an objective method of determining whether an applicant will strive to achieve the company's goals and objectives.

Pinpointing Cooperative Employees

Once positive and negative characteristics are defined, a set of interview questions must be designed to measure candidates against the profile attributes. These questions should be phrased to encourage the applicant to respond with more than a "'yes" or "no" answer. In addition, a manual is needed for interviewers which shows how the positive or negative attributes appear in typical and exemplary answers.

Carefully designed questions and suggested answers provide an interviewer with a consistent, objective system for evaluating prospective employees. The hiring system is even more objective when it is based on a tally sheet which summarizes and evaluates an applicant's responses to the interview questions. An effective tally sheet would indicate how many points were assigned to each attribute on each question. The total number of points the applicant receives will determine whether to consider the person for employment.

Aside from assessing an applicant's suitability for a company's work environment, a hiring system of (his nature can also protect an employer from charges of discriminatory refusal to hire. A systematic interview and scoring process can assure that no unlawful questions are asked. In addition, if challenged, the company can produce a standard set of interview questions and the applicant's tally sheet to rebut any allegation that the company's employment decisions are based on discriminatory motives.

Auditing the Work Environment

A company cannot develop and maintain an ideal work force by using the hiring system alone. A system of labor relations audits is also necessary to assess the effectiveness of the hiring process and to monitor the company's employee relations climate. Labor relation audits can fulfill a number of functions, including:

  • Minimizing labor relation "risks" by minimizing exposure to discrimination charges and wrongful discharge lawsuits;
  • Aligning employees' expectations with the company's organizational philosophy and competitive reality;
  • Promoting and maintaining employee morals, effectiveness, satisfaction and loyalty to the company; and
  • Monitoring personnel procedures and policies including the competitiveness of the compensation package.

A System of Labor Relation Audits

Regular audits completed by management, supervisors and employees help to monitor a company's environment and labor relations. Various types of audits which can be utilized to accomplish these goals include:

  • Employee Audit, which monitors each employee's satisfaction and loyalty to the company;
  • Vulnerability Audit, which assesses a particular group's receptivity to a union organizing attempt;
  • Daily Human Resource Audit, which is completed by human resource managers and reviews absenteeism and disciplinary actions which might indicate dissatisfaction and vulnerability to union organization;
  • Weekly Human Resource Audit, which reviews turnover rates, tardiness, layoffs, disciplinary action, voluntary terminations, injury rates, employee communications and other factors which may highlight potential personnel problems; and
  • Monthly or Quarterly Human Resources Audit, which includes an analysis of wage and benefit comparisons, union organizing activity in the company's geographic area, a review of hiring procedures, methods of announcing and filing job openings, training, awards, communication programs and other indicators of employee satisfaction.

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Reducing the threat of Labor Problems

As a labor-relations attorney with more than 35 years of experience representing management in all facets of labor relations, I have emphasized to my long-term care clients that a written strategic communications action plan can be one of the most important steps to ending adversarial relationships with employees and reducing the threat of labor problems. Although the importance of open communication is well understood and sounds simple and easy, few long-term care facilities implement a communications plan that specifies responsibilities and imposes a schedule.

A successful communications plan must have an "asking" strategy, based upon listening, responding, and acting, so that employees become stakeholders. (Often a management team does not have an "asking" strategy because its members believe they have all the answers.) To get practical answers, the plan must contain critical questions. The most important questions are: What? When? Where? How? Unless these questions are answered specifically, the action plan will not be implemented properly--or it might not be implemented at all because other priorities may take precedence.

If management does not have a scheduled, ongoing action plan addressing these questions, it will be perceived by employees as being insular, secretive, and uncaring. Therefore, the employees will feel alienated, and management will have succeeded in maintaining and furthering an adversarial relationship that ultimately will take its toll on the bottom line.

In contrast, a scenario in which management and employees talk and listen to one another and resolve problems together will increase employees' trust in management. If employees are to believe management's words, there must be open and ongoing communication, both verbal and written, based upon a specific strategic action plan. Employee award programs will also bolster employees' positive perceptions of their employer's concern and appreciation.

Timing Is Everything

One of the biggest mistakes administrators and managers make is failing to open the doors of communication before a labor problem arises. Faced with negotiating a new union contract or dealing with a union-organizing effort or difficult operational issues, management may suddenly decide it's time to talk with workers. By then it's too late. At this point, workers naturally will suspect management's motives and regard everything managers say with cynical disbelief. It is essential that open communication be ongoing, not something that is initiated at the first threat of labor problems.

Building Trust by Building Credibility

An ongoing strategic communications plan will demonstrate management's credibility; it will be built upon a foundation of asking, listening, talking, and acting in response to employees' needs and issues. Managers cannot sincerely ask, listen, and talk if they do not know anything about those with whom they are having a conversation. Therefore, they should know each worker's name, job description, and family background, and be familiar with each worker's performance record. Such basic knowledge implies a level of care and concern.

The employer's concern for employees' welfare goes a long way toward establishing trust, and there are many ways to communicate that concern. Each is a necessary ingredient for a successful communications action plan. I have helped management communicate concern for employees not only by creating an asking program, but also by creating a variety of cost-effective benefits. One example is providing small, short-term, interest-free loans to employees in case of emergencies. I have also helped organizations implement regularly scheduled actions that communicate goodwill and have a positive impact on morale, such as sending employees anniversary and birthday cards, paying for birthday and/or anniversary dinners for them and their spouses, and facilitating child-care arrangements.

Other ways to communicate concern include providing financial information about retirement investments, offering fitness and stress-reduction classes, and having a guidance counselor available to advise parents about college admissions and costs. In addition to showing management's interest and concern, these extra benefits make employees feel like valued stakeholders in the company.

Having successfully communicated its concern for its employees, management can open more direct channels of communication, knowing that its credibility is secure.

Communication Takes Many Forms

Nothing is more effective than one-on-one discussions in which management asks, listens, and talks, encouraging employees to do the same. The chats may take only seconds or minutes, but they should be a requirement of the strategic communications action plan. During these discussions, managers can ask such basic questions as, "How are you?" and "Can I help you?" This gives employees multifaceted opportunities to address issues in an open and friendly environment.

More structured meetings also can keep the doors of communication open. Among the various kinds of meetings where management and employees can engage in direct and forthright communication are group meetings, compliance sessions, quality circles, and meetings for senior employees.

Group meetings can occur biannually, quarterly, or even monthly. At such meetings, managers can explain what they are doing and why. They can answer workers' questions, thus diminishing the opportunities for misunderstandings which, if left to metastasize, can grow into major labor-relations problems.

Compliance sessions (in which management and employees attempt to reach a mutual consensus) are an effective means of maintaining a reasonable level of satisfaction among all types of workers. Such meetings are generally held on a monthly basis and are sometimes referred to as "coffee and doughnut meetings." Administrators and managers can provide updates on important subjects, and employees can be encouraged to discuss any aspect of company policy, including regulatory matters involving resident care. These meetings occur during the workday, and employees are paid for their time. Defused negative rumors, revised production methods, and increased understanding of new company policies are just a few of the benefits of such meetings.

Quality circles are also effective, and they work for both union and nonunion employees. Quality circles consist of small groups of employees, making these sessions more intimate than larger compliance sessions. The small number of employees permits management to tackle problems of workplace efficiency through a one-on-one dialogue. Together, management and employees examine productivity and make suggestions for improvement. Employees are left with an enhanced sense of their own competencies and efficiencies.

Meetings for senior employees have proven to be an effective means of communicating management's appreciation for employees' long-term commitments to the company. It is essential for management to demonstrate that such employees are held in special regard and are appreciated for their long-standing interest in the company's welfare. Senior employees may be given a pin to signify the company's appreciation; after all, "thank you" is one of the most important phrases in the English language, and it communicates not only appreciation, but also gratitude. Unfortunately, managers all too often take senior employees' efforts for granted and rarely say "thank you."

Get Employees Involved

At all meetings, an employee assistance representative (EAR) could be present. This person would work with the company's human resources (HR) representative to make sure that all issues are discussed. The EAR--who could be chosen by both employees and management, by management alone, or through a roster of volunteers--should serve on a rotating basis, so that most employees have an opportunity to serve in this position and to interact with the HR department.

The purpose of the EAR program is to have a peer available to communicate management's concern for employees by responding to and acting upon employees' concerns and by assisting employees with their problems. In establishing such a program, management further communicates and demonstrates its commitment to addressing employees' concerns. This type of initiative has greatly improved workplace environments, and it doesn't need to be expensive. The EAR might be paid with a modest cash bonus, a gift certificate, a nominal increase in hourly wages, or anything else that seems to be a reasonable incentive. The returns on such an initiative have, in fact, been tremendous. I have seen companies get more mileage from an EAR program than they likely would have gotten from a modest across-the-board pay increase.

In addition to personal contact, written communication can be helpful. This could include newsletters, personal letters, private memos, public notices, and self-appraisals. Newsletters, which can be mailed to each employee's home or distributed at work, not only serve to inform employees of company programs and news, but also might give family members who read them a favorable view of the company.

Another effective form of written communication involves the use of personal letters mailed to individual employees' homes, thanking them for their help or, perhaps, congratulating them for completing training or for other achievements. Similarly, management can convey important reminders, notes of appreciation, and acknowledgment of an employee's accomplishment of a goal in memos placed in employees' pay envelopes.

A bulletin board, which should be placed where all employees can view it, can serve as a community newspaper, providing an opportunity to reach all employees with important announcements. Among the kinds of information that should be displayed on a bulletin board are notices about company policies, work rules, employee events, and job openings and requirements.

Another effective way to give employees an opportunity to relate valuable written information about themselves, management, and their peers is the use of self-appraisals. These can be performed using a simple written form.

Giving Employees Their Due

Award programs provide management with another effective tool for communicating its appreciation for employees. One such program is a service award program, which helps the company retain the best employees by recognizing their contributions to the overall success of the company. Service award programs build employee self-esteem, reinforce desired behaviors, and help to create and maintain an atmosphere of appreciation and trust. Although most such programs recognize length of service, they should also acknowledge quality of service.

Awards for length of service should be given at the conclusion of an employee's initial probationary period and after his or her first, third, fifth, tenth, and subsequent milestone anniversaries with the company. These awards may include small cash gifts, gift certificates, tickets to sporting events or theatrical performances, company merchandise, and jewelry. To maximize the positive impact of the awards, management should present them at company-sponsored events, such as annual holiday parties, summer picnics, etc. The presenter of the award should be a member of top management.

Numerous processes for selecting recipients of awards for quality of service exist. For example, management might form a committee of five to seven volunteers; in any event, hourly employees should comprise the majority of this committee's members. The committee should select employees from various departments and positions, and the awards should be based upon attendance, safety, team building, productivity, and other criteria deemed important within the corporate culture. Awards for quality of service should be of greater monetary value than those given for length of service.

Another category is the suggestion awards. On a monthly basis, management could select an important and topical issue about which to solicit employee suggestions. Management could ask, for example, how it and employees could work more effectively to reduce operating costs, reduce absenteeism, improve efficiency or productivity, or address other matters of mutual concern.

The suggestions would be reviewed by a committee of three to five people representing both management and hourly employees. Again, hourly employees should comprise the majority of this committee's members. Management representatives should be chosen by top management, but all the hourly employees should be volunteers. The committee should meet within seven days after the end of every month, or as immediately as possible, to review the month's suggestions. By majority vote, they should choose a winning suggestion. The author of the winning suggestion could receive a cash prize and a plaque with his or her name inscribed on it. At the end of the year, 1 of the 12 monthly suggestions could be chosen by management or a committee of management and employees as "suggestion of the year." The person who offered the suggestion should receive a larger cash prize and a special inscribed plaque, and have his or her photo placed in a special location where it could be seen by all employees.

Another part of a strategic communications action plan is the exit interview, which provides one of the best opportunities for management to gain candid appraisals of the company from departing employees. When an employee leaves a company, he or she is likely to feel free to voice candid concerns, opinions, and advice. During such interviews, management can learn a great deal about problems that an employee might have been hesitant to express while employed. One can garner valuable information about where a company must improve working conditions, where it needs to make changes in its corporate culture, and how to increase its own levels of trust and credibility. Such insights will ultimately serve to enhance levels of productivity and efficiency.

By not asking, not listening, not talking, not taking action, and not opening numerous channels of communication, companies will feed the adversarial relationships that lead to unionization and to slowdowns, walkouts, and strikes in companies where unions are already in place. A decreasing bottom line resulting from these actions will surely demonstrate the shortsightedness of not having a strategic communications action plan. Furthermore, that plan must be part of a company's overall business plan and, within that, its labor-relations plan. The communications plan should be audited every six to nine months or more often, if necessary.

The strategic communications action plan that I have described in this article is designed to break down adversarial relations and establish perceptions of management's goodwill. If followed, it will ensure years of increased productivity and profitability, with little or reduced labor strife. The positive results of this will go directly to the facility's profitability.

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