Rethinking Discrimination - by Heather Bussing - HRExaminer

Treating Everyone As If They Are White is Discrimination, Not Equality

Talking about discrimination is difficult. The very concept often elicits some combination of confusion, righteousness, and discomfort.

Part of it is the inherent conflict between the legal and general concepts of the word. To have discriminating taste means to understand the differences between things and appreciate the nuances of those differences. Legal discrimination means to treat people unfairly because of a protected class.

Not Knowing is Nonsense

In hiring decisions, the conventional wisdom has been to avoid knowing protected factors as long as possible, so you could claim your decisions were not based on an illegal factor. If you didn’t know the person was Hispanic, or pregnant, or a veteran, you couldn’t base your decision on that information

As a result, there are a million questions employment lawyers tell you not to ask during the hiring process, which boil down to anything that would reveal inclusion in a protected class. Those questions are not usually illegal to ask. It’s making a hiring decision based on the information you learn that is illegal. (Some states like California do regulate what you can and can’t ask in pre-employment inquiries, while paradoxically requiring you to separately collect and track the same information you’re not supposed to ask.)

The trouble is, you can tell a lot about people without ever asking any questions. Where they went to school can reveal race, gender, religion and nationality. Where they have lived and worked can tell you a lot about race, national origin, age, and military status. Last names often reveals race, national origin and religion. When they graduated and how long they have worked can tell you age.

Now, seeing pictures of candidates online, in video interviews, and even in email add-ons like rapportive is common. Claiming we don’t know whether candidates are in a protected class is no longer credible.

As accessibility to information and data about everyone become ubiquitous, we need to rethink our approaches to equal opportunity, diversity, and discrimination.

Treating Everyone As If They Are White is Discrimination, Not Equality

Once someone is hired, you learn about their race, religion, marital status, pregnancy, disability, age, and all the other protected factors. So the conventional wisdom has been to treat everyone equally under the same rules, applied uniformly.

What actually happens is that predominantly White managers think that everyone should be treated like they’re White. The truth is, the only ones who want to be treated like a 50 year old White guy, are 50 year old white guys. And even they have very different lives, interests and needs. Pretending everyone is White is not fostering equality and diversity. It’s the dark side of the golden rule. Not everyone wants to be treated like you want to be treated. That’s because everyone is different.

It is impossible to create a set of employment policies or rules that you can apply to every situation, the same way, every time. And when you try, you end up with a horrible place to work. Rules become more important than people.

Rules also don’t prevent risk. Any time you don’t apply the rule uniformly, and in every instance, you actually open yourself up to more risk, because you made an exception for one person, but not another, and broke the rule.

Rules are also the refuge of lazy and the scared. If an HR manager can simply point to a rule, she doesn’t have to make a decision based on what’s actually going on, and it’s the rule that’s the problem, rather then her decision. Pointing to rules may end the discussion, but it rarely solves the problem.

Different people have different needs and preferences for commutes, schedules, leave, learning, performance, training, and career goals. People who have kids can’t always stay late. People with significant outside interests don’t really want to. Not everyone wants to be in charge. Some people just enjoy what they do, and don’t ever really want to change it.

No functional workplace can be a one size fits all. And pretending it is, or should be, almost always results in people being treated unfairly and insensitively. That’s exactly how you get discrimination claims.

What to Do.

Embrace Data.  Instead of hiding from knowledge about protected factors, use the information to see where your company stands. Look at the information collected by your ATS and see if there are hiring practices that are having a disparate impact on a particular race, gender or other protected class. Look at the information you have (and the flood of information that’s coming) to see whether your work force reflects the qualified people available.

Watch Referrals.  We tend to refer people who are like us. So if you often hire through referrals, check to see if it’s creating a Wonderbread workforce. Conversely, if you have a really diverse workforce, referrals can be a way to promote and maintain diversity.

Hire For Traits and Skills.  Look hard at what skills and personalities your company needs to get today’s work done, and to move the company ahead in the future. Then find people like that. Here’s more on Hiring for Diversity.

Be Accountable for Employment Decisions.   Approach at each situation based on what is going on. If you’re not sure, find out. Then make the decisions on leave, hiring, firing, promotion or transfers based on what is best for the company and what works for the employee. It takes more time, and you have to be willing to be accountable for your decisions. But a more artisan approach to HR is the foundation of a good place to work.

Get Rid of Bigots.  Okay, maybe assholes need love and tolerance too. But not at work.

Our world is changing fast. We can no longer pretend that we don’t know a lot of information about the people we hire, promote and fire, including legally protected traits and status. It’s time to quit trying to manage information and risk, and start managing people and work. The best way to do that is to acknowledge people as individuals and find ways to make work work for everyone.

 

 
  • http://twitter.com/joanncorley joanncorley

    Wow – what a straight up and straight forward article. Thank you for writing!

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  • http://www.asyncinterview.com/ Christopher Young

    Heather, one of the most honest posts I’ve read in a while. Thank you! I love your point on Embracing Data to help you identify if there is a potential issue or red flag internally BEFORE it becomes a bigger concern.

  • Gerry Crispin

    Too bad most lawyers aren’t as progressive in their thinking as you. I’m a fan of your analysis and your recommendations and suggest there are quite a few firms that have been operating (quietly) just as you describe- out of their confidence that by knowing more they can do the right thing AND improve the diversity and inclusion of their respective firm’s, which puts them in an enviable leadership position in terms of competing for talent and driving the performance of their company. They sometimes get sued but easily defend by the results they achieve.

    The challenge in changing the mindset of those who argue to minimize risk with ‘rules-based’ solutions is that their view of the worker/recruiter/hiring manage is that he or she is a primarily a technician seldom capable of operating in the mode you describe. They fear the breakdown of weak links and the cost of failure to the rewards that success will bring. To me the best news is that most firms are increasingly transparent and better candidates will not be so easily converted.

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