“Discrimination” is misunderstood. Most people still equate “discrimination” with “hatred” and “animus” and can conjure up the violent images of America’s civil rights movement of the 1960’s.
I would never do that, most folks say to themselves. I would never discriminate. Some of my best friends are _______!
But today, “hatred” or “animus” account for few discriminatory employment decisions, except sadly, for those involving GLBT workers. Social psychology studies now confirm that most people perceive themselves as kind, fair, honest, and non-discriminatory in their interactions with others. And so, how does “discrimination” still happen?
Unfortunately, most “discrimination” today defies detection and by extension, prosecution. The EEOC issues determinations of “reasonable cause” to believe discrimination occurred in less than 3.6% of its charge intake, over 75% of which involves TERMINATION decisions, not discrimination in HIRING, PROMOTION or PAY. Though the EEOC has renewed its focus on HIRING, PROMOTION, and PAY discrimination since 2006, it prosecutes less than 1% of charges, thereby allowing trial lawyers’ pecuniary interests guide our EEO policy: simply put, TERMINATION cases yield bigger monetary payouts with less hard work, which aligns with trial lawyers’ business model of maximizing recovery while minimizing effort.
Nevertheless, the EEOC’s own EEO-1 data and Bureau of Labor Statistics show that (1) historic job segregation patters remain largely intact; and (2) African-Americans, Women, and Latinos have not occupied Official/Manager ranks in numbers commensurate with their workforce participation. In other words, discrimination in HIRING and PROMOTION likely remains pervasive, but not challenged under our current adversarial enforcement scheme.
Under the inviolable protections of the attorney-client privilege, however, managers and HR leaders are surprisingly candid about what drives their decision-making processes. In my 19-year litigation career (three as an EEOC Trial Attorney and 16 representing employers), never once did a manager or HR director consider his/her decision-making process discriminatory, even when it inherently was. Indeed, in counseling managers and HR directors over 19 years, specific themes have emerged—namely, surprisingly common assumptions that, when left unchallenged, can lead to discriminatory employment decisions.
Borrowing heavily from cognitive and social psychology, this program attacks common assumptions around issues of
• Customer Preference
• Paternalism, and
• Positive Stereotypes.
Once managers recognize these relatively common assumptions, they can consciously challenge them in their HIRING, PROMOTION, and PAY decision-making processes, free of the “cognitive dissonance” that prevents them from perceiving themselves as “discriminatory.”
This program will also teach managers how to avoid (and defend against) discrimination allegations arising out of TERMINATIONS—i.e., the most common discrimination litigation scenario–by using an effective Rehabilitation-Before-Termination approach.