ISM Number Three: AgeISM

Did you know that Courtney Cox has been covered by the ADEA for 5 years now? It is hard to imagine her being the object of AGEISM. But she could be, and in fact she will be starring in a new role in the fall, were she plays a 40 year old woman re-entering the dating scene, in Cougar Town.

According to the dictionary ageism is defined as "Discrimination based on age, especially prejudice against the elderly."  And in the United States that is generally the way it is thought of, in fact there is a federal law that bans discrimination against anyone over the age of 40. (I remember that birthday. I did feel old then, if only I knew!) But ageism is actually a bit more complicated than that. Younger people are also discriminated against in many instances, generally under the guise of lack of experience. Both types of discrimination have consequences, but discrimination against older workers has some very real legal consequences for employers. Discrimination against younger workers has few legal consequences for companies.

Over at Punk Rock HR my fellow blogger, Laurie Ruettimann, had this observation in her post entitled Ageism, Sexism & Whatnot  "...no one cares about ageism until they’re old." And she is correct! At least on a personal level. HR departments and management teams need to care about it everyday.

So this week I am going to explore agesim in a bit more detail:

• What its roots may be
• What the law is regarding it
• What HR departments need to watch for.

In the meantime you can read something I wrote earlier this year after I witnessed some "ageism."
Ageism in the Workplace

I also want you to raise your awareness of ageism. Listen to what people say, especially in your workplace. Watch how people act. Look at commercials. I bet each of you will find at least 5 examples of ageism. And if you are an older job hunter you can probably cite many examples of personal situations.

So while I am writing this week give me some examples! How have you witnessed discrimination, be it because you are young or old?

Photo: From a promotion for the show Cougar Town

ISM Number Two: SexISM

Sexism is the second part of my series on ISM's in Human Resources in the United States. According to Wikipedia "Sexism, a term coined in the mid-20th century,[1] refers to the belief or attitude that one gender or sex is inferior to, less competent, or less valuable than the other."   (Click here for a great discussion of the totality of the meaning of the word SEXISM.) In the US the term sexism is generally taken to mean men see themselves as superior to women, exhibiting a sexist or chauvinistic attitude toward women and their place in society. Though this is just one interpretation of the term it has been generally been taken to mean that women have had a history of being discriminated against in the workplace. However, the 20th century saw a number of laws passed that moved to lessen or eliminate the discrimination.

One of the early laws to do so was establishing that women had the right to vote. The movement to establish this right was called Women's Suffrage and more information can be found HERE. Although this was not really a workplace right it did set the standard for later movement.

One major, and early law regarding the workplace, was an amendment to the Fair Labor Standards Act in the Equal Pay Act of 1963. This law was passed to address the issue of women making only $0.58 for every $1.00 that men were making. The law requires that men and women doing the same work that requires substantially equal skill, effort, and responsibility, and is performed under similar working conditions within the same establishment, receive the same pay. There are exceptions for seniority, merit, quantity or quality of production, and any other factor other than sex (gender.) This law required of HR departments to focus on the work done, not titles, and to insure that the same rate of pay was paid if the jobs met the standards were met.

Title VII of the Civil Rights Act of 1964 was the next law to deal with sexism in the workplace as it did with racism. Originally sex (gender) was not one of the protected catagories in the law. Sex was inserted as an attempt to defeat the law. In the early 1960's the make up of Congress was mostly males, so the opponents of Civil Rights attempted to defeat the law by sticking gender in the law. Well, as we well know it did not work! Sex discrimination became illegal, as did sexual harassment, and today all HR departments need to be aware of situations in which discrimination and harrassment occurred or could occur and take corrective action. All good HR people know this.

The next step in dealing with sexism in the workplace was the Pregnancy Discrimination Act of 1977, an amendment to Title VII. This made it illegal to discriminate against pregnant women in all terms and matters of employment. Even prohibiting employers from barring women from doing high risk jobs that could endanger the development of the fetus. Employers are required to point out the dangers but cannot bar a woman from performing that job if she is qualified. Many companies still struggle with this issue. Even women managers have difficulty with this. I have encountered female managers who do not want to hire a candidate who is pregnant knowing that they run the risk of productivity issues or the possibility of loss of the employee after birth, just as I have encountered male managers feeling the same way. I would be interested to know if any of you have encountered a similar dilemma. How did you deal with it?

Since these three big laws several others have been passed that deal with the issue of sexism. The Family and Medical Leave Act to an extent touches sex discrimination by providing protection to allow for the birth of a child, a benefit few men initially used, and certainly not to the extent the female employee giving birth is likely to have done. The most recent law passed that deal with sexism is the Lily Ledbetter Fair Pay Act, passed earlier in 2009. It goes back to the pay issue, not as a revision of the FLSA, but as a revision of Title VII. It changed the interpretation of when an act of pay discrimination can be reported. It has major implications for recordkeeping, how pay decisions are documented and how long a company is liable for its actions. The Ohio Employer Law blog has a very good discussion of these implications. The Compensation Cafe also has a very good discussion.

Coming down the pike is proposed legislation called the Paycheck Fairness Act. I posted earlier about it here and here. It brings back the very nasty issue of comparable worth, a concept that was rejected many years ago as unworkable. It has not yet been passed, and may not in the current legislative year, but it is definately on the agenda for the current administration. So educate yourself.

All of this pay legislation, both passed and proposed, is based upon the concept of discrimination in pay based upon sex (gender.) Statistics show that currently women make $0.75 for every $1.00 that men make. Ann Bares at Compensation Force presents research that may cast a different light on this subject. This research shows that compensation differences are not as simple as JUST sex discrimination. You can read the research and make your own decisions.

As a close to this, already too long, post I will just say that sexism is not a simple subject. Sexual harassment is a two way street. Reverse discrimination, where women receive preferential treatment, exists in many forms. Fathers in divorce situations are frequently not given the same rights as mothers, even in situations where it is evident the father would be the better care-giver and provider. Society allows Women only events, groups and gyms yet protest loudly against men only groups. Examples include: Silicon Valley Women In Human Resources, Executive Women in Chamber of Commerce groups, women only workout gyms, etc. I can only imagine the outrage that would be expressed by Silicon Valley Men in Human Resources. Yes I understand the issues of trying to overcome the past, but to my way of thinking discrimination is discrimination.

Will sexism go away? Nope, no way. It is even less likely to go away than racism. Eventually everyone could be the same racial mix, but there is no possibility for us to be the same sex. So it is something we will have to learn to deal with as a society. But as a workplace we have the responsibilty to minimize it as much as possible.

Discuss your trials and tribulations of dealing with sexism in the workplace by leaving a comment here.

Next week: AGEISM

"Un-retirement": Brett Favre Provides the Model

In a blog post I wrote of The Atlanta Journal Constitution Online HR Headquarters I used Brett Favre as the model for baby boomers who are coming back from the workforce by "un-retiring". Are you one of those? Or do you know of anyone in that position? If you are an employer this could be a boon to handle some of your hiring needs.

Take a look and click through to Brett Favre and "Un-retiring": A model for baby boomers and a boon for employers. Let me know what you think.

As a side note, I think most anyone would come out of retirement for a $25,ooo,ooo contract!


Photo credit:
AP Photo/Star Tribune, Jerry Holt

The BIG ISM: Racism

Racism has a long and storied history in the United States, in fact in the history of mankind. However, since I am dealing with the human resources implication under US law I will stick to that arena (mostly.) The emotional impact of racism is still quite evident with the recent encounter between a Harvard professor and a Cambridge police officer and a healthcare town hall in Georgia.

The dictionary definition of racism is: "The belief that race accounts for differences in human character or ability and that a particular race is superior to others. Or ..Discrimination or prejudice based on race. " Wikipedia as a more complete treatment of racism found here.

Employers are, or should be, on guard constantly for situations that hint of racism. Programs on diversity have been around for a couple of decades to help raise awareness. And of course Federal and State laws make it illegal to use race as a determining factor in employment. Let's explore the Federal laws.

In the US racism was, and still is to a large extent, a black/white phenomenon. It has since expanded considerably and "minorities" of many "shapes and sizes" are all protected. However, the history of the law shows its origins. The big law that deals with discrimination based on race is Title VII of the Civil Rights Act of 1964 the movement of black Americans in the early 1960's led most notably by Martin Luther King, Jr. However, the law became more than just an act against discrimination targeted toward black Americans. It became a law that covered a broad spectrum of "protected categories" that has gotten broader as time as progressed. It is THE law that guides HR in its daily functioning. It was the FIRST of the many "social" pieces of legislation passed in the last four decades. I am not going into the mechanics of the law, most knowledgeable HR people know them and if you don't you can find them at Title VII of the Civil Rights Act of 1964.

Title VII however, was not the first Federal law to prohibit race discrimination. The Civil Rights Act of 1866 (Section 1981) was the first law to provide protection against race discrimination. It was a law that specifically declared African Americans to be citizens and entitled to a series of rights previously reserved to white men. It was originally designed specifically to protect African Americans (and my guess is, just African American men) in alot of situations, but has since been expanded to all races. Unlike Title VI, which applies to employers of 15 or more, Section 1981 applies to private employers of any size. Because the law actually dealt with protection in making contracts, of which employment was considered one of them, it also protects other contractual situations such as partnerships and independent contractors. Title VII does not provide this protection. Section 1981 prohibits using race in hiring, promotions, employment benefits, pay, time off, and firing. Harassment and retaliation is also prohibited. Only INTENTIONAL discrimination is covered, not disparate treatment as is covered in Title VII.

Generally, if a firm is being sued for discrimination the plaintiff will sue under both laws. Title VII requires filing a complaint with the EEOC. Section 1981 does not. Title VII complaints are handled by the EEOC. Section 1981 is only handled by the courts. So in situations where the EEOC does not find fault may not free you from a civil lawsuit filed under Section 1981.

Obviously, it would be wonderful if we had a world free of racism. And we have certainly made long strides in this country as the election of President Obama lays testament to. But is it realistic to think it will ever disappear? I don't think it will. In my early days of college I spent alot of time studying mammalian behavior, specifically primates. One of the aspects of behavior that is evident in monkey troop behavior is something called xenophobia. According to the dictionary that is defined as: "...fear and hatred of strangers or foreigners or of anything that is strange or foreign." Many mammals exhibit xenophobia, they drive strange animals from their troops, their herds, etc. I think we have a deep seated remnant of xenophobia in our genetic make up which results in the fear of the different from us. Add to that the "intellectual" capacity that we have over other mammals and we end up with racism, feelings of superiority combined with a fear or dislike of the unknown.

The good news is that it can be overcome. Troops and herds do let strangers in because it is good for the genetic survival of the group. Diversity makes things healthier. And one of the hallmarks of the human mammal is that intelligence. We can understand the biases that we come with naturally and we can overcome them. As long as we understand that discrimination may exist we can reduce it and we can overcome it. In the meanwhile we control it with the use of Federal and State laws.

Firing Idiots: A Commentary on Management

I was looking around for a topic and ran across a blog entitled Phil for Humanity. Written by a guy named Phil B. he covers a number different topics. His post called Firing Idiots struck a note with me because, as an employee, Phil points out some of the failings of management as well as, in my opinion, HR. Phil goes off on a fellow employee who does not seem to be able to do their work, explain there work or think through their work. They then bother productive employees to help get a solution or some guidance and even then can't seem to get it. We have all had coworkers, or employees, and even bosses like this. I know I have! Yet nothing seems to get done about it.

Phil asks the question "Don't managers see the uselessness, counter-productivity, and extreme slowness in accomplishing basic tasks from certain individuals in their teams? I am beginning to think that managers are blind to these problems; because they either do not care, are not looking at their people as the source of their problems, think some productivity is better than none especially if hiring a replacement is too difficult, or think firing someone is not worth the hassle in a large corporation." My answer to Phil is "all of the above." As a consultant I run into this issue all the time and have many times asked the question "Why is this person still here?"

I will add a few more reasons to Phil's list for why nothing gets done and unproductive, or even toxic, employees are left on the payroll:

1. There are no stated goals for the person to achieve.


2. There are no measures of productivity or "success" in place, so how do you hold someone to a standard that does not exist?


3. The "idiot" person is in a protected category and the manager is afraid of firing them for fear of being sued. Because of the absence of 1 & 2


4. The performance appraisal system sucks and is geared toward just "showing up" and the manager gave them a good rating for that.


5. The person is related to someone higher up in the company.


6. They don't want to pay unemployment (like that is more expensive than the drag on productivity and morale.)

All of these issues are fixable. People like Phil should not have to put up with nonproductive fellow employees. HR can lead the charge by making sure managers are trained on proper performance appraisal, coaching and counseling and goal setting. HR needs to insure that proper measures of productivity are in place and that proper documentation of success or lack of success is used. HR needs to realize and tell managers that it is OK to fire people for lack of performance even if they are in a protected category. Nothing in any law requires a company to keep a poor performing employee! (A union contract may be a different story.) HR needs to grow a backbone in some companies.

I will end my rant with a portion of Phil's rant "...I wish I could fire idiots. Right there on the spot. Wouldn't it be nice to say, "You're a useless and unproductive idiot! You're fired!" The company that I work for would be so much better off for it. Morale would be higher. Productivity would increase. "

That might be fun sometime, but as a human resources professional I would exhibit a bit more decorum than that... although I might be thinking it underneath.

What about you? How do you deal with stupid employees?

HR and the Leading Causes of Work-related Deaths

Despite the title this is not about HR being the leading cause of death in the workplace, though I would bet I am not the only HR manager who at one point has wanted to eliminate a troublesome employee. No this is a post about actual, regretable, hopefully preventable causes of death in the workplace. I was reminded of this in hearing the news story about the toll booth operator in the San Francisco area who was allegedly shot to death by an estranged boyfriend just the other day. The boyfriend, who also is suspected of having killed a bus driver in the same location, has been captured. This poor woman was a victim of the LEADING cause of death for women in the workplace, MURDER, according to SafetyResource.org. He knew just where to find her and did so. And that is the issue. Men who want to do violence to the women in there lifes know when and where they are if the woman has a job.

Also according to SafetyResource.org murder in general is the second leading cause of work-related deaths behind traffic accidents.

Workplace violence unfortunately become a fact of life especially when domestic violence spills over into the workplace. There are a number of things that can be done and for those of you that are SHRM members there is an entire toolkit that I recommend you look at. But here is some general advice taken from the introduction to that SHRM toolkit I think is quite sound.

• Train managers and supervisors on the early warning signs of potential violence, what the policy is, and how to address those warning signs.


• Implement a comprehensive workplace violence prevention program that includes a policy setting the framework and guidelines for dealing with workplace violence.


• Communicate with employees that the company wants to know when there are threats or incidents and that it is serious about handling those problems.


• Periodic risk assessments should be part of the prevention policy to determine what and where your company’s vulnerabilities are – both inside and outside of the workplace. Tie assessments to safety audits to identify problems early.


• Implement access control on a regular basis. It can take various forms, including sign-in sheets and a camera system.


• Make it clear there is a reason for security procedures and that precautions extend to even persons familiar to the employer, such as an employee’s family members or friends.


• Identify to all employees the “go to” point person or office for communicating any potential workplace violence threat or concern.
  

Perhaps some such policy or commuication might have saved this poor toll booth attendant, perhaps not. But by implementing guidelines HR might have a hand in saving a life. And if you do nothing else of value in your HR career that is enough.

ISM: Three Little Letters That Mean So Many Things

A couple of weeks ago on Twitter (follow me at http://twitter.com/MikeHaberman ) I made a comment about AGEISM. I even wrote a blog about Ageism in the Workplace. Laurie Ruettimann of Punk Rock HR fame came back and made comment to the effect that we seem to have an "ism" in alot of areas. And indeed we do. Racism, the big ISM of the HR world and probably one of the most prevalent ISMs in the United States is once again in the news. Here in Georgia, and elsewhere, rascism is being claimed as the reason people are against a national healthcare plan which has been labled as ObamaCare. (I am not going to get into a discussion on that at the moment so don't roll your eyes and close me down.) But we have also seen recently agesim and sexism. We in HR tend to equate ISM to discrimination. So we may some day end up with "fatism", "shortism", "dumbism", "poorism", "richism" and who knows what else.

But this got me to thinking. What exactly is ISM? So here is the lesson.

1. Ism is a noun which means a particular doctrine, system or theory.


2. But it is also used as a suffix to specify what particular doctrine, system or theory, e.g., pacifism, Catholicism, Darwinism, anthropomorphism, and hedonism (my favorite).


3. It is a suffix that also defines an action, such as terroism; defines a characteristic, such as heroism; a state or condition that results from an excess of something, such as strychninism; or a distinctive or characteristic trait, such as Latinism.


4. It is also an acronym for about at least 50 different organizations as well as Internet and business usage.


5. It is a punk rock/alternative rock band in New York.


6. In Arabic it means a personal name.

So alot of usage for three little letters. Over the coming weeks I will be exploring the one defintion of it that seems prevalent in Human Resources "An attitude of prejuidice against a given group." I will look at racism, ageism, sexism, etc. from a human resources perspective and maybe a little social/scientific perspective as well. So stay tuned.

From The CEO: It Is All About Talent

WorkForce Management online published an article last week entitled What the CEO Wants From HR. The article starts with the statement "At successful large companies, interaction between the CEO and the chief HR executive revolves around building and maintaining the very top layer of corporate leaders—and little below that." The article goes on to say that in larger companies CEOs are only interested in the talent development activities of HR, especially the development of the upper management levels. It further says that CEOs are not interested in the operational aspects of HR and they have little tolerance of HR leaders who try to position HR operations as a strategic initiative. They expect it do be done and done well but they are not really interested in the day to day. And that is they way it should be.

Well I have news for WorkForce Management. In my experience working with small business the same desire on the part of CEOs is true. They want to know that HR is doing their job and doing it well but they don't want to know the operational details. They are concerned about having the right people in the right place to do the best job. They don't care what ID the person presented for the I-9. That only becomes a concern when the HR person screwed up and the company is in trouble. At that point operations becomes an issue! In his book, Human Resource Champions, Dave Ulrich says that one of the key competencies for HR is to be the Administrative Expert. And he says if you do NOT do that WELL you will basically fail at all else you do because you will have no credability. And that is very true. Not only will you have no credability you most likely will have no job.

If you are in HR and trying to be that "strategic player" you have to remember it is all about TALENT, getting it, developing it and keeping it. But that does not mean you can't let compliance and admistration fall by the wayside. Those things still have to be done and done well. The CEO just doesn't want to hear about them.

Thanks to Wally Bock for having the pointer to the article in his blog Three Star Leadership.

The Carnival of HR: A Global Party

Prem Rao, of People at Work & Play, is hosting this version of the Carnival of HR. He calls it a Global Carnival. There are posts galore in this Global celebration. Many of the regulars but a good dose of new authors are included. If you can't find something interesting to read here, well then you must drink Dos Equis! (Who gets that reference?) So click through and get some education. Pass it on to friends.

GINA: "She" Is Moving In On Nov. 21 and NEVER Going Away

Ever have someone come to see you that you were not all that thrilled with and you knew would do nothing but cause you problems? Well GINA is that family member and she is just going to be annoying. GINA in my analogy stands for Genetic Information Nondiscrimination Act. It has two Titles. Title I deals with insurance companies and prohibits group health plans from adjusting premiums or contribution amounts for the group covered by the plan on the basis of genetic information. It also prohibits a group health plan from requesting or requiring a genetic test or discriminating based on a genetic test. This title goes into effect on January 1, 2010 for calendar year health insurance plans or on the renewal date for plans that are renewed after that date. The big issue for HR professionals here is to make sure that their insurance carrier is complying with GINA and also observing HIPAA regulations about protected information.

Title II, the employment provisions, is the part of this new law that will potentially be the bigger headache. How so you ask? After all you don't collect genetic information on employees.... or do you? Before I answer that question, here is a little background on GINA:

• Private employers with 15 or more employees must comply, as well as all governments, private and public employment agencies and labor organizations.


• Employers may not make employment decisions based on genetic information about an employee, an applicant, or a family member of an employee or applicant.


• Employers may not retaliate against an employee or applicant who complains about a violation of GINA.


• Employers may not require employees, applicants or their family members to provide genetic information.


• Employers may not purchase genetic information about employees, applicants, or family members.


• There are some exceptions but any information received MUST be treated as a confidential medical record and it cannot be used in employment decisions.


• Only disparate treatment claims can be made, not disparate impact claims.

Now back to the question of whether or not you actually collect information and the potential impact of that information. Ever had an employee who has had a family member pass away and in your conversation you asked them if they had been ill. The answer given is "She passed away from breast cancer." BINGO! You just collected genetic information! Do you have employees fill out medical questionnaires or Health Risk Assessments? If the answer is "Yes" you are collecting genetic information.

So what impact does this have on your organization? Well all employees are potential plaintiffs, since we all have some genes that can cause medical conditions, i.e., cancer, heart problems, diabetes, etc. etc. etc. Employees and applicants will now have one more potential reason to sue you for discrimination.

What do you have to do as an employer? Here is a list of things to consider:

1. Alter your anti-discrimination policy to reflect this change.


2. Probably put up posters (which I am sure you will be able to download from the EEOC).


3. Teach your supervisors to NOT inquire about family medical conditions or the reasons for death of a family information.


4. Make sure you have NO form, such as a bereavement request, that asks for cause of death.


5. Make sure that any information received is kept in a confidential record, the same place you keep all the ADA information.


6. Even be guarded in asking for, or allowing for, collections to charitable groups that support a disease because "Fred's son little Johnny has leukemia."

That last one is a tough one. It has the potential of making HR stand for "heartless response." But if at some point in the future Fred is laid-off he may decide to attribute that layoff not to his job but to the fact that his son has a major impact on the insurance policy. So there has to be some measure in protecting the company.

EEOC was supposed to have final regulations out in plenty of time for companies to have better direction on compliance, however, to date I have not found them. If you have let me know. In the meantime here is a link, on Q & A about GINA.