Should Recruiting Get the Boot?

There is alot of discussion about how to change HR ranging from "trash it completely" to "I am ok with the way it is." I am in the middle. I am not ready to dismantle the HR department. I don't think you can. But it can and should change in a number of arenas. HR people need more cross training in business and in their company's business in particular. For that matter business people, the other managers, need more cross training in HR. It would be an eye opener.

Thinking along those lines I thought a good place to start would be in recruiting. Alot of people complain about HR and the recruiting function. Contingency and contract recruiters always avoid HR and try to get to the functional manager. The functional managers are always complaining about slow the in-house recruiters are in finding people. And in-house recruiters actually see themselves as the "non-HR" side of HR, more the sales and marketing wing of HR.

So lets give recruiting the boot from HR. Make recruiting the responsibility of the functional departments. HR can train them on interviewing, the laws they have to abide by (as if they would) and give them the proper format for an offer letter. Make each department have a recruiting specialist reporting to the functional manager. Eveyone will be happy then. The outside recruiters will have someone to deal with that "actually knows the job." Managers will have control on the speed of the search and the cost of the search.

HR can then do that administrative and compliance stuff, because after all that is what we are supposed to do best. We will sign up those new employees and then hand them back to the hiring department. Everyone is happy. (Edited comment... I was being very sarcastic here.)

BTW, those functional departments will also be responsible for handling the EEOC suits and contractual violation lawsuits that are filed. After all HR had nothing to do with it, so don't come crying to us.

What do you think? Do I have a winner here?

ISM Number Six: GayISM

According to a group of historians, who filed an amici curiae brief in a Texas lawsuit, discrimination against the Lesbian Gay Bisexual & Transgender (LGBT in Wikipedia) community is a 20th century phenomenon, particualary of the 1930 to 1960 era. During that time workplace discrimination, and discrimination in general, was widespread. In the Eisenhower administration companies with contracts with the federal government were encouraged to ferret out and fire all their gay employees. Starting in the 1960s as civil rights became a bigger issue attitudes about LGB orientation started to free up.

In 1998, President Bill Clinton signed Executive Order 13087 prohibiting discrimination based on sexual orientation in the U.S. government, excluding the military (Don't Ask Don't Tell), but including all businesses that have contracts with the federal government. Attitudes however, have not been changed as much as some people would hope. A study conducted by the Williams Institute of the University of California in 2007 showed that gays and lesbians still report a high percentage of discrimination in the workplace. Gay men make 10% to 32% less in salary. Transgender individuals are dealt a bigger blow with high rates of unemployment. (For further information see the study.)

For private sector employers there is no current federal law prohibiting discrimination on the basis of sexual orientation. However, there are 17 states, the District of Columbia, and 180 municipalities that have legislated protection against sexual orientation discrimination. There is proposed legislation in the U.S. Congress called the Employment Non-discrimination Act (ENDA) which would make discrimination based on sexual orientation AND gender identity part of Title VII protection. Proponents feel they have the votes to pass the bill and there may be action on this bill later in 2009. If  you wish to follow the debate there is a blog called Transgender Workplace Diversity that is following ENDA. Right now Healthcare may be  the bigger issue.

Many companies all ready include sexual orientation protection in their company discrimination policy. I have never worked for a company that openly discriminated against gay and lesbian applicants and employees. But I am fully aware that many companies may have those issues. But without personal experience I would like to bow to those that have and solicit some advice.

Given that ENDA has a decent chance of passing within the next two years how should companies prepare? If a company does not have a policy in place what would your recommend? And a BIGGER issue to ask about is how do you deal with a transgender employee? I know restrooms are always an issue for employees that may be in transition. Anyone have advice to others?

(Picture of the promotional poster of the move Brokeback Mountain borrowed from Wikipedia.)

So You Think Compliance Knowledge is not Important in HR... Well

In the ongoing debates in the HR blogsphere on the Death of HR ( Laurie Ruettimann, Mike Van Dervort and mine) there were a number of comments about necessary changes in the field to make it viable or more up-to-date. One of the areas mentioned with some regularity was that HR needed to get out of the compliance arena. Leave that to the lawyers the critics say.

My reaction?   BULLS**T!

To me, where the "rubber meets the road" * in HR is in Employee Relations. The interactions between employees and management. That is where great things get done and where major mistakes get made. And these mistakes center on violations of the laws, accidental or meant, it makes no difference. And because of this, in my opinion, HR people in ER need to know the laws. They have to be compliance people. This is different than attorneys knowing the law. No chapter and verse, court case quoting here. Just what is the law and how does it apply to my company. The practical application of the law. And there is alot of it.

And there is more coming. The Obama administration is trying to make its mark in labor and employment law. They have already passed the Lily Ledbetter Act and four presidential Executive Orders have been passed. AND there are THIRTEEN pieces of legislation pending mid-term. The one with the most press coverage is the Employee Free Choice Act (EFCA) but there are a dozen more. Here is the list of 2009 Mid-Term Federal Legislation pending. Thanks to the folks at World at Work and blog buddy Eric B. Meyer for the heads up.

* To my non-American readers click the link for a definition of this idiom.

HR is Dead: Some Mourn, Some Celebrate and Others Say "WHAT??"

There has been a very lively discussion about the death of HR being argued on several blogs, most notably at Laurie Ruettiman's Punk Rock HR where she posted HR is Dying: Yes or No? and at Mike VanDervort's the Human Race Horse where he posted HR-Not Dead Yet. These two posts brought a lot of reaction that was wide and varied. Some celebrated that HR was dying. Some said a vehement NO. Many said the field needs to be revamped. Many identified what is wrong with HR and others offered some solutions.

These two posts are very thought provoking and MUST be read by anyone in HR. Read the comments and add your own. But most importantly learn from these posts. Reflect on your situation. If you are in the "dying" camp what do you suggest will take HR's place?

If you are in the "needs improvement" category how would you restructure things to get the improvement?

If you are in the "HR is just fine" category, well I suggest you reread these two posts and the long comment strings.

I personally don't think HR is dead or dying. I do think it needs to morph, just not quite sure how, but I am working on a plan.

ISM Number Five: ShortISM Nobody Likes to Be Looked Down on

Short people got no reason

Short people got no
Short people got no reason
To live

They got little hands
Little eyes
They walk around
Tellin' great big lies
They got little noses
And tiny little teeth
They wear platform shoes
On their nasty little feet

In 1977 song writer Randy Newman penned and recorded "Short People". It was a song about prejudice. It was a hit that caused alot of controversy. Some people found it funny, some found it offensive. People today still are arguing over it. (See the comments below the lyrics printed here.) It was supposed to be a statement about prejudice in general but the fact that height was selected telling.
 
In the U.S. we do "worship" height, up to a certain height anyway. Studies have shown that taller people, particularly men, generally earn more and are more successful than shorter people. A study in the Journal of Applied Psychology found that "...someone who is 6 feet tall earns, on average, nearly $166,000 more during a 30-year career than someone who is 5 feet 5 inches--even when controlling for gender, age and weight." There were a number of possible reasons for this, including,

• More confidence on the part of the individual
• Higher (pun not intended, but accepted) levels of self-esteem
• Perceptions that taller people are more leader-like
• Perceptions that taller people are more authoritative

The differences seemed to be greater in jobs that required social interaction, such as management, sales, and service positions.

An additional finding was that shorter men were the objects of bias more often than shorter women. However, in my observations there are obvious careers that are closed to shorter women. You will find no runway models that are 5'2", regardless of their beauty.

There are certainly no laws that prohibit discrimination on the basis of height, unless of course selecting on the bases of height without a bona fide occupational need leads to adverse impact on a protected class. Requiring someone to be 6' tall just for the heck of it will screen women and hispanic and asian candidates out. So it is always best to understand job requirements.

I personally always wanted to be 6 feet tall. I thought I was 5'11" until one day my doctor measured me at 6 feet. I did not question the accuracy of the measuring tool, I just adopted the measurement. LOL I married a woman who is 5'2 3/4". She is careful to put in the 3/4". She too wanted to be taller. That desire for both of us to be taller must have its roots in how society reacts to short.

So what about it all you "shorties"? Have you felt the bias? Has it had any effect on your career? Have you found it harder to reach the rungs of the ladder?

Next ISM up will be GayISM followed by UglyISM. Any others you want to suggest I explore?

Required Reading for the Week

There are several blog posts this week that are essential reading for anyone who calls themselves an HR Pro. These include:

1. Kris Dunn at the HR Capitalist writing on What's That Smell? Self Assessments & Performance Management. This is about performance management and the use of self assessment. In addition to his post you MUST READ ALL THE COMMENTS. There is true value in this feedback.
2. Margaret O'Hanlon at Compensation Cafe, writing on 10 Tools for Communicating a Teeny, Tiny Merit Increase Budget. She talks about clear communication and management training.
3. Ann Bares at Compensation Force writing on Think Twice Before Calling It a Cost of Living Increase. Read this to keep from making a major mistake.
4. Jon Hyman at the Ohio Employment Law Blog writing on Is “fat” the new protected class? Jon provides some important information to go along with my post on Fatism.
5. Dan McCarthy at Great Leadership, writing on MBA 2.0: Trading in Textbooks for Blogs? This post explains how blog posts have become a vital source for keeping yourself educated. 

So read away. Be educated. Be a pro!

The Carnival of HR: Back to School

This months version of the Carnival of HR is up at the HR Maven. So go take a look to learn about some HR social media use, how to spend HR dollars wisely, how to energize your team inexpensively, owning your career, the best day to fire someone, and more.

ISM Number Four: FATISM

I know that is not really a word, but it could be, and is abrupt enough to make my point. Despite the fact that 65% of adult Americans are overweight or obese, (See A Nation at Risk: Obesity in the United States), we have a culture that celebrates thin. In fact I would go beyond celebrate to say worship. Overweight people are often labeled as lazy, having no self-control, no will power, no drive. And to an extent, for some people this is true. I know it is in my case. I weigh more than I should. I wax and wane on exercise and on eating properly. I have been up and down in weight. I know I can weigh less and be healthier, because I have been. I am back on that road right now with regular exercise and watching what I eat. But it is not always an issue of just self-contol for some people. It is not always that easy.

Fatism or weight discrimination has been around for quite awhile. When I was growing up no one picked the fat kid to be on their team and no one wanted to dance with the "fat girl." That discrimination has persisted into this day and age and manifests itself in the workplace. According to Weight Discrimination: A Socially Acceptable Injustice by Rebecca Puhl and published by the Obesity Action Coalition, "In a recent study, we examined the prevalence of multiple forms of discrimination in a nationally representative sample of 2,290 American adults and found that weight discrimination is common among Americans, with rates relatively close to the prevalence of race and age discrimination. Among women, weight discrimination was even more common than racial discrimination. Among all adults in the study, weight discrimination was more prevalent than discrimination due to ethnicity, sexual orientation and physical disability. Almost 60 percent of participants in our study who reported weight discrimination experienced at least one occurrence of employment-based discrimination, such as not being hired for a job." Additionallythey found "On average, a person’s chances of being discriminated against because of weight become higher as their body weight increases. In our study, 10 percent of overweight women reported weight discrimination, 20 percent of obese women reported weight discrimination and 45 percent of very obese women reported weight discrimination. Rates for men were lower, with 3 percent of overweight, 6 percent of obese and 28 percent of very obese men reporting weight discrimination. This finding also tells us that women begin experiencing weight discrimination at lower levels of body weight than men."

Unlike racism, sexism and ageism however, there are very few laws that protect people from weight discrimination in the workplace. No explicit federal law exists and only a few local or state laws exist. However, the area of weight discrimination is beginning to present some challenges to human resources departments. With the changes in the ADA late last year, where disability has been redefined, overweight individuals who feel they have been the victims now have the potential for claiming protection under ADA. Up to this time only morbid obesity could be claimed to be disabiling, but now people may be able to claim protection because of the physical problems that arise from too much weight, such as diabetes and heart disease.

Additionally, numbers have shown that some minorities have higher incidence of obesity, thus claims may be made under Title VII and disparte impact. Sex may also play a factor, since overweight women suffer a higher rate of discrimination than do men, allowing a claim of sex discrimination based upon decisions made on weight. And lastly, age and weight may be a factor, since older workers also have a higher incidence of "overweightness."

So making decisions based upon weight is becoming much more problematic for companies and I predict there will be an increasing number of law suits that will provide some defintion to this arena.

Your best protection to keep from becoming a landmark case? Make your decisions based upon qualifications and productivity. If you keep it work related you will stay out of trouble far more often than not. And all good HR people already know this. Don't you??


BTW, if your reaction to the picture was disgust, well then read this article again and then look in the mirror.

Ageism Part 3: What HR Needs to Know

Age was not originally part of the protected catagories as defined by the Civil Rights Act of 1964. It was added with the 1967 passage of the Age Discrimination in Employment Act. And unlike the CRA where coverage starts at 15 employees, its coverage does not start until 20 employees. (This lack of consistency drives HR people nuts.) The law protects workers age 40 or over. It does not provide any protection to workers under 40. It allows employers to favor older workers, even if the "younger" workers are over 40 years of age. This was determined by the Supreme Court in the General Dynamic Land System v. Cline case.

The ADEA prohibits discrimination in all usual areas of employment, but also includes areas not generally considered, such as training and apprenticeship programs and time-off. Harassment based upon age, such as "old" jokes, "old" cartoons, "old" slurs, is also prohibited. So watch the "gray beard" or "old dog" remarks.

There are some areas where age can be a factor. These include:

• State and local governments may institute a mandatory retirement at age of 55 for firefighters and law enforcement officers.
• Employers may require a high-ranking employee to retire if:
• the employee is at least 65
• the employee has worked for at least the previous 2 years as a bona fide executive or is in a high policy making position, and
• the employee is entitled to an immediate, nonforfeitable annual retirement of at least $44,000 from the employer.
• In some cases an employer may reduce benefits paid to older workers if done so in accordance with a bona fide employee benefit plan.

And that leads us to the other law that protects older workers, The Older Worker Benefit Protection Act (OWBPA). This was passed in 1990 and says:

• Employers must offer older workers benefits that are equal to or, in some cases, cost the employer as much as, the benefits offered to younger workers. The rules for determining whether they are equal depend on the type of benefit offered.
• A waiver of the right to sue for age discrimination is valid is only if it meets certain standards to ensure the waiver is knowing and voluntary.

There are alot of exceptions to the rules on pensions and other benefit plans, so each HR professional needs to be aware of these, as there are too many for this post.

I do want to cover the waiver issues however, because in  today's world more HR managers are dealing with them. Waivers have to be knowing and voluntary and the rules for this are:

1. It is part of a written agreement between the employee and employer.
2. It is written in language that is understandable to the employee or the average of the group.
3. Specifically refers to the worker's rights under the ADEA.
4. Does not require the employee to waive any rights or claims that may arise after the agreement is signed.
5. Gives the employee something of value, over and above to what they may already be entitled. This is typically a severance.
6. The employee must be be advised, in writing, to consult an attorney before signing the agreement.
7. Must give the employee at least 21 days to consider the agreement, or 45 days in a group termination.
8. Give the employee at least 7 days after signing to revoke the agreement.
9. If the waiver is in connection with a group termination the employer must also provide the information on the demographics of the group(s) selected for the program.

So there are the rules. Here are a few comments.

• By 2010 it is predicted that half the workforce of the US will be over the age of 40.
• You can tell this law was passed by a group of people who used to think 30 was old. If we were doing this today 40 would not be OLD!
• As someone well past 40, I still rankle at the idea that someone thinks it takes me an extra 21 days to make a decision and that I have to have help to do it.
• Age discrimination is one of the fastest growing areas of EEOC suits, so it is going to get worse before it gets better. 
• The law allows disparate impact lawsuits, so make sure you are checking the impact of your layoffs. They may end up being more expensive than you think.

Finally, when I reached my 40th birthday I celebrated big time because I had finally reached a protected catagory. LOL

AgeISM Part 2: The Roots of the Bias

Just to get this out of the way... I am not a sociologist or a social anthropologist. So the statement I am about to make is pretty much my impression of social trends. Today, U.S. baby boomers, who are the most frequent complainers/targets of ageism, are suffering the results of their own making. Prior to that generation there was more respect for older workers, more respect for parents, more respect for the wisdom of experience that came with age. Of course there has always been displacement of the old, that is a course of nature. Young male lions drive off the older male pride leader. Younger stallions drive off older stallions. But I think the Baby Boomers were a different case with a more widespread disdain for all things "old." BTW, "OLD" was delineated by the age of 30. We spawned the Love Generation, Hippies, Painted Micro buses, free love, heavy drug use, Vietnam protests and more. All things that flew in the face of older generations and our parents in particular.

Wikipedia says about the Baby Boom generation "One of the unique features of Boomers was that they tended to think of themselves as a special generation, very different from those that had come before. In the 1960s, as the relatively large numbers of young people became teenagers and young adults, they, and those around them, created a very specific rhetoric around their cohort, and the change they were bringing about. This rhetoric had an important impact in the self perceptions of the boomers, as well as their tendency to define the world in terms of generations, which was a relatively new phenomenon." It goes on to further say "Boomers grew up at a time of dramatic social change. In the United States, that social change marked the generation with a strong cultural cleavage, between the proponents of social change and the more conservative." Additionally, "In general, baby boomers are associated with a rejection or redefinition of traditional values.... As a group, they were the healthiest, and wealthiest generation to that time, and amongst the first to grow up genuinely expecting the world to improve with time."

Now successive generations have picked up our distain of all things "old" and unfortunately we are now the object of that disdain. Rather than accepting our age we fight it with statements like "50 is the new 30" and book titles like Younger Next Year. So even though we (and I am one) dislike ageism, we continue to dislike all things old.

So we aging baby boomers are struggling with conflicted emotions. We dislike being "old" but still feel valuable and we turn to laws to provide us protection in the workplace in order to try to stay employed.

Next post will be about the laws that protect older workers and what HR departments need to be aware of. Stay tuned.