Remembering Jose Franco, Champion of Affirmative Action and Equal Employment Opportunity

The Equal Employment Opportunity/Affirmative Action community has suffered a terrible loss with the passing of José Franco last week-end. I offer this eulogy for not only to remember José, but also to convey the magnitude of this loss to those who did not have the privilege to know him.

José was the consummate advocate for civil rights, who worked tirelessly to eradicate workplace discrimination against women, minorities, veterans and the disabled and many of us looked to him as a mentor and role model. Jose was born in Brooklyn to a Spanish immigrant father and a coal miner’s daughter. In New York City he was considered a gifted student. That changed, and José experienced the effects of discrimination for the first time when in fifth grade he moved with his family to Arizona, where his teacher’s perception of him as Mexican and therefore less capable of learning rendered him a barely passable student. Only after a fresh start in another school, where he registered as “Joseph” did his grades once again reflect his superior abilities. Conversely, José also experienced the benefits of Affirmative Action when he was recruited by and admitted to Duke University and went on to earn his Bachelor’s Degree in Political Science in 1972. From that time on, as Jose described it, he was “baptized into the civil rights movement”.

From 1972 until 2001, José worked for the office that eventually became known as the Office of Federal Contract Compliance Programs (OFCCP), working his way up to Regional Director of Operations of the OFCCP’s San Francisco office. In his almost 30 years working for the OFCCP, Jose functioned as a training coordinator, technical expert on operating procedures and policies, conducted countless compliance reviews and investigating complaints of employment discrimination by federal contractors. Jose also became involved in enforcing the requirements of Section 503 of the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act and numerous investigations of complaints of discrimination based on race, religion, national origin, sex, veteran status and disability, and several precedent-setting systemic discrimination cases.

Although José retired from the OFCCP in 2001, his work on behalf of the EEO/AA community never stopped. Jose became an EEO Consultant. In fact he was known as the EEO Doctor, working with federal contractors to design, implement and update administrator-friendly affirmative action programs, and assisting them in responding to external audits and investigations of their personnel practices.  José was elected and set to serve as a member of the American Association for Access Equity and Diversity’s (AAAED)’s nominating and elections committee for the coming 2016-2018 term. I for one will mourn the loss of the opportunity to serve with him in that capacity on the AAAED. I also know that these accomplishments, impressive as they are, do not begin to describe the extent and depth of what José gave the EEO/AA community and the unbelievable void now created by his passing. It will take many of us together to even begin to fill his shoes.

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Is it Time for a New Approach to Workplace Harassment Prevention? The EEOC Says “Yes”

The EEOC issued a multi-pronged call to action in the Final Report of its Select Task Force on the Study of Harassment in the Workplace on June 20, 2016. The Task Force acknowledged that in the thirty years since the landmark case, Meritor Savings Bank v Vinson (holding that workplace harassment is an actionable form of discrimination under Title VII of the Civil Rights Act) “we have come a far way…but sadly and too often still have far to go”. In thirty years, workplace harassment persists, and it continues, too often, to go unreported. The EEOC therefore convened a Task Force in January 2015 and set out to answer, among other questions, “[I]s there something we’ve been missing?”

So, who was on this Task Force, what exactly did it do and what did it find out? If workplace harassment remains a problem, why did the Task Force need to meet for 18 months, hold many meetings and issue a 120-page report to tell us that? Presumably many of us could have come up with the same conclusions. To be fair, the focus of the report was not merely to see what if any progress has occurred, and what if any problems remain, but rather on prevention. In Commissioners’ Feldblum and Lipnic’s own words:

As commissioners of an enforcement agency, we could have taken a cynical approach. We could have assumed that some people will always engage in harassment and that we cannot expect to control how people behave in increasingly diverse workplaces. That is especially so in an environment where every manner of rude, crude, or offensive material can be accessed and shared with others with a few strokes on a phone. We could have suggested that the Commission simply continue to do what it has done well for decades – investigate and settle charges, bring litigation, provide legal guidance, hear complaints from federal employees, and provide outreach and education.

We set cynicism to the side. We want to reboot workplace harassment prevention efforts.

-Feldblum, Chai, and Victoria Lipnic. Select Task Force on the Study of Harassment in the Workplace Report. Rep. EEOC, 20 June 2016. Web.

We know the Task Force ultimately convened to find out what more could – and should—be done to prevent workplace harassment. Its 16 members consisted of representatives of academia from various social science disciplines, legal practitioners on both the plaintiff and defendants’ sides, employers and employee advocacy groups and organized labor, from all parts of the country.

Wait a minute. If harassment continues to go unreported so often, doesn’t that suggest that the issue is not as big a priority to employees as we thought? If so, do we need to be so concerned about improved response or prevention methods? The EEOC answers that question as well in Part II, Section D of its report, arguing “There is a Compelling Business Case for Stopping and Preventing Harassment”.

What is the business case? Workplace harassment, like so many phenomena, triggers direct and indirect costs. The direct costs are as follows:

• Nearly one in three EEOC charges filed in FY 2015 (i.e. 27,893 of 89,385 charges) alleged some form of harassment, or a daily average of 76 charges
• The EEOC resolved 28,642 charges alleging in FY 2015 of which 5518 were in favor of the charging party, and resulted in $125.5 million in benefits for employees
• In 2010, through the EEOC’s pre-litigation enforcement process alone, employers paid out $698.7 million to employees alleging harassment
• One estimate of settlement payments and judgments arising from actual litigation just from 2012 sets the number at over $356 million
• The largest jury award in 2012 for sexual harassment was $168 million
• EEOC-initiated harassment litigation in 2015 consisted of 33 filed claims, 42 resolved claims, and a recovery of over $39 million on behalf of employees

These are clearly not small amounts, but they are not the only consequences of workplace harassment for employers.

The EEOC cites “a host of indirect costs that, while often invisible, can tower over the direct costs.” What would those be? According to the EEOC those hidden costs include, without limitation, decreased productivity, increased turnover, and reputational damage. To those who might think reputational damage is not so significant, consider that an employer with a bad reputation will often have trouble attracting and retaining quality talent, which in turn will impact productivity and ultimately, the bottom line.

Now that we understand that workplace harassment persists, that underreporting continues, and that there is in fact a compelling business reason to do something, what exactly do we do? That question really is the main focus of the EEOC’s report. The EEOC essentially advocates a holistic approach, starting with promoting a culture committed to preventing harassment. That commitment must start with the top echelons of management (leadership). Employers must then have systems in place that hold all employees accountable for complying with this company culture (accountability).

Many have seized on one particular (and unfortunately misinterpreted) finding, namely that training in its present form does not seem to have prevented harassment. Does that mean that training is not necessary? According to the EEOC, no – training must change and new and different approaches to training must be explored.

What does this mean, that training should change? Change to what? The EEOC’s findings were that much of the training done over the last 30 years focused primarily if not solely on avoiding legal liability. Instead, the EEOC recommends that training be tailored to the specific needs and circumstances of each employer, and not be a one-size-fits-all approach. Training should take into account the invaluable role that first-line supervisors and middle managers can play in preventing and stopping harassment – when they are trained correctly. Finally, training should be part of a “holistic culture of non-harassment that starts at the top”, rather than something that is done in a vacuum without consideration of the specific workforce and workplace.

It’s all fine and well to say that “New and different approaches to training must be explored”, but what does that mean? Thankfully, Commissioners Feldblum and Lipnic provide some specific ideas that “may show promise for harassment training”. Specifically, they mention “bystander intervention training”, which has been used to combat sexual assault on campuses, and would empower co-workers, giving them tools to intervene when they witness harassing behavior that “may show promise for harassment prevention”, and “workplace civility training” that focuses on promoting respect and civility in the workplace generally, rather than eliminating offensive behavior based on protected characteristics protected under anti-discrimination laws. These options that Feldblum and Lipnic seem to feel have promise are decidedly proactive in contrast to the majority of current efforts, which appear more reactive.

Employers may also be pleased that the EEOC has plainly acknowledged tensions between anti-discrimination laws and the National Labor Relations Board’s recent interpretations of the NLRA, and has recommended the following:

• The EEOC and the Board should confer, consult, and attempt to jointly clarify and harmonize the interplay of the National Labor Relations Act and federal EEO statutes with regard to the permissible confidentiality of the workplace investigations, and the permissible scope of policies regulating workplace social media usage.
• EEOC and the National Labor Relations Board should confer, consult, and attempt to jointly clarify and harmonize the interplay of the NLRA and federal EEO statutes with regard to permissible content of workplace “civility codes.”

Employers can actually benefit from reading the full report, which includes very informative, helpful information in a readable format and can be found here.

For more information, contact Ahmed Younies at (800) 708-3655, Extension 703 or ayounies@hurunlimitedinc.com.

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Steering Clear of the OFCCP in Your Hiring and Pay Practices

The OFCCP promised to focus on ensuring pay equity by federal contractors. Not only has it delivered, but it has gone at least one step further, in a very creative, innovative and proactive approach. Starting at least as far back as late 2013 the OFCCP began rooting out contractors that engage in steering practices. No, we are not referring to the operation of motor vehicles. Steering in the world of the OFCCP –and, to be fair, the EEOC as well—refers to a practice in which an employer steers people belonging to legally protected classes to certain types of jobs, which in turn leads to pay disparities among certain groups of people. In late 2013, the OFCCP issued Directive 307, designed to help Compliance Officers find evidence of that very practice when conducting Compliance Evaluations.

Now, many expect to see this theory used in hiring discrimination cases. It makes sense, and it’s fairly obvious: steering certain groups of people to certain types of jobs and away from others, without regard to actual qualification is classic hiring discrimination. But pay discrimination? Really? Is the OFCCP overreaching here? Well, maybe not. Let’s take a look.

We have heard and read many statistics that tend to prove that a significant pay gap between similarly situated, similarly qualified men and women continues. Certain types of jobs tend to pay better than others. Men tend to be more highly concentrated in more highly paid jobs. Women tend to be more highly concentrated in lower paying jobs. If an employer is steering women toward jobs that tend to pay less and men toward jobs that tend to pay more, then Voilà that employer is likely guilty of both hiring and pay discrimination.  We have heard of similar occurrences of pay gaps between similarly situated, similarly qualified African American and Caucasian workers.

Before the OFCCP can assert a claim of steering in either the hiring or compensation context, it must meet two criteria:

1. Promotions without internal posting: It must channel certain employees/applicants to certain jobs, such that the choice/decision to apply for a specific job is taken away from the applicant/employee. For example, a contractor does not post internal positions, but leaves it to management to promote existing employees or moves applicants or employees between requisitions.
2. Target channeling: The channeling must result in a lack of diversity in jobs and/or pay discrepancies between certain classes of people. The placement decision(s) results in jobs that are segregated or held by a specific gender, race, ethnic group, etc., and pay differences exist among those jobs that were subject to the employer’s decision(s)

Note that to satisfy the second criterion, the OFCCP need not rely on or look to utilization goals. In fact the job(s) in question need not even have placement goals. But can the OFCCP really infer intent just from statistics that show a strong concentration of certain groups in certain lower – or higher—paying jobs?

We might be able to draw our own conclusions from a few steering cases initiated by the OFCCP in the last two to three years.

Most recently the OFCCP filed suit in about March 2016 against AmeriQual Group, LLC, a contractor that provided portable meals to the Department of Defense. AmeriQual allegedly steered women toward light-duty table inspector jobs, whereas most of its male employees worked in higher-paying more labor-intensive loader and utility positions, an area with fewer job openings, without regard to the candidates’ actual skill or experience levels. Now, this case involves allegations that one might call reverse discrimination, in that it allegedly kept 237 male applicants from competing for jobs that paid less.  While we don’t yet know what the outcome will be, this case does show that the OFCCP is serious about eradicating gender-based pay and hiring discrimination against men and women alike. The result will not only be of interest to federal contractors, but could also be instructive to all employers, so stay tuned.

Similarly, in December 2014, the OFCCP required Hillshire Brands Company to compensate almost 2500 male applicants with $330,000 in back wages, interest and benefits as a result of practices that steered men toward more labor-intensive dumpster/stacker jobs (of which there were fewer) and women toward lower-paying biscuit assembler jobs, although both required similar qualifications, resulting in far fewer men than women being hired. The OFCCP found this distribution of labor to be based on “archaic ideas about ‘women’s work’ and ‘men’s work’.

Comcast paid almost $190,000 to settle a claim that at its call center in Everett, Washington, it steered female applicants to lower-paying positions assisting customers with cable services, and away from higher-paying positions assisting customers with internet services. (Those positions were apparently “too technical” for the female candidates.) The OFCCP also alleged that Comcast rejected a disproportionate number of Hispanics Asians and African-Americans.

Finally, in November 2015, the OFCCP reached a settlement of just over $1.85 million in back pay and interest with G&K Services over allegations that it assigned 444 female employees to lower-paying, “light duty” jobs while hiring men to perform higher-paying opportunities — across nine different locations. This practice also resulted in lower hiring rates for 2,327 male applicants in lower-paying general labor positions in five locations, even though they were as qualified as the female candidates. The OFCCP also found that G&K rejected over 400 qualified African-American and over 100 White candidates for general laborer positions in two of those locations. To resolve the matter, G&K agreed to offer job opportunities to 73 previously-rejected male, African-American and Caucasian applicants and to extend opportunities to 58 qualified female applicants to move into higher-paying positions.

So where does that leave the federal contractor – or any employee for that matter—that wants to steer clear of such allegations? At a minimum, you should consider doing the following:

• Unless you can point to –and document—a bona fide occupational qualification, focus on the candidates’ qualifications, not their gender, not their ethnicity or any other characteristics related to job performance;
• Take proactive steps to ensure that allocation of jobs in your organization is not disproportionately segregated by gender or other characteristics protected by law;
• Advertise job opportunities taking care to ensure that they are equally visible to men, women, African-Americans, Caucasians, Hispanics, Asians – or those bearing any other characteristics protected by law;
• Refrain from making assumptions on a candidate’s ability to perform a job based on gender (or ethnicity);
• Eliminate hiring and promotion practices that assume that women are not the primary wage earners in their families or households.
• Training – Your hiring managers/supervisors, at minimum, must be made aware of unlawful discrimination and the need for their selection decisions to be solely based on job qualifications. Periodic harassment prevention training is recommended.
• Engage a knowledgeable attorney and/or Affirmative Action consultant (and in some cases both) to ensure that your implementation of your AAP and your hiring practices in general stay ahead of the OFCCP’s efforts to root out pay disparities among the different protected groups of employees.

For more information contact Ahmed Younies at 714-426-2918, x.1 or ayounies@hrunlimitedinc.com

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Stereotyping: Think Fast, Think Slow

Strangers will sometimes look at my family and try to work out the relationships. My mother is Scottish and my father is Chinese. My husband’s heritage is Irish, our three biological sons look Scotch-Irish, and our daughter, who was adopted from China, looks like her Chinese grandfather. We clearly are a family unit, but people wonder how the pieces fit together.  This is a basic human tendency –  trying to make sense of others.

Social Cognition is an area of psychology that focuses on how people judge or make sense of social situations and of others’ behavior. However, the judgments that we make about others are frequently flawed. Human brains are wired for efficiency, for quick, but not necessarily accurate, judgments. In addition, when we first encounter new people, we usually know very little about them. When we make quick judgments based on very little information we often rely on stereotypes. These are beliefs that certain attributes are typical of members of particular groups.

Stereotypes can be positive or negative or true or false. For example, strangers sometimes assume because my daughter is Chinese that she is good at math (she is) and that she is a gifted musician (she is not).  Several years ago a parent at an ice skating event commented to me that my daughter must be a good ice skater because she is Chinese.  But surely 1.4 billion people (the population of China) cannot all be talented ice skaters.

The problem with stereotypes is that they ignore or discount a person’s individuality. The perceiver projects what s/he thinks about a particular group onto an individual. This tendency to stereotype is troublesome, especially in employment situations, because it may result in ineffective and unfair hiring decisions.

Consider the typical resume review situation in which HR personnel or hiring managers have a large number of applications/resumes to review in a short period of time. Quick judgments based on limited information are conditions that increase the likelihood of stereotyping, and these are common conditions under which resume screening occurs.

Below are some steps that may reduce the tendency to stereotype.

1. Time and Cognitive Resources. The activation of stereotypes is typically an automatic process. Taking a few extra moments to resist stereotyping may result in more accurate, fairer decisions. Set aside enough time for resume screening. In addition, work in a quiet place and avoid distractions and multi-tasking. These can drain one’s cognitive resources.
2. Sufficient Information. Generally, the more information that we have about a person the less likely we are to stereotype him or her. Obtain as much information as is possible and practical when making selection decisions.
3. Motivation. People who are motivated to resist stereotyping and to make fair employment decisions are more likely to meet this goal than those who are not. Placing an emphasis on selection decision fairness and holding employees accountable for fair decisions, may increase the motivation to be fair.

 

Dr. Marie Waung earned her Ph.D. in Industrial-Organizational Psychology from The Ohio State University. She is currently an associate professor at the University of Michigan – Dearborn where she teaches a variety of courses, including Diversity in the Workplace, Psychology and the Workplace, and Statistics for the Behavioral Sciences.  Professor Waung’s current research focuses on employee recruitment and selection, and employee impression management. She has published in journals such as Personnel Psychology, Organizational Behavior and Human Decision Processes, Journal of Business and Psychology, and Journal of Applied Social Psychology.  Her newest project examines the effects of diversity recruitment messages and early job experiences on new hire expectations, adjustment, and organizational commitment .

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