Preconceived Notions: Do They Cause Us to Miss Things

I came across an interesting story. It concerns an experiment that involved one of today's premier muscians, violinist Joshua Bell. He is a virtuoso with the violin and sells out concerts around the world. This experiment involved Bell dressing in street clothes and playing his violin in a subway station. As detailed in this Washington Post article, entitled Pearls Before Breakfast, the question was whether or not anyone would pay attention to the man with the fiddle. Leonard Slatkin, music director of the National Symphony Orchestra, was asked this question. His response? "Let's assume," Slatkin said, "that he is not recognized and just taken for granted as a street musician . . . Still, I don't think that if he's really good, he's going to go unnoticed. He'd get a larger audience in Europe . . . but, okay, out of 1,000 people, my guess is there might be 35 or 40 who will recognize the quality for what it is. Maybe 75 to 100 will stop and spend some time listening."  When asked how much the musician would make his response was $150.

The reality of the situation was much different. Few people stopped, he only made $32, and as the following video shows only one person recognized him.



For the writers and commenters this raised the question "Are our lifes so rushed that we cannot slow down to appreciate the beauty in them?" To me it raises a question of preconceived notions. In this case we assume that if someone has to ply their musical trade in a subway they are not very good. We don't even bother to listen to see if our preconceived notions and assumptions are true or not. In this case they were not. Bell is superb, yet few bothered to even give him a glance.

How about you. Do you have preconceived notions that should be reconsidered? Do you look at someone because of their age, race, color, education, etc. and assume they could not/should not work for you?

THINK ABOUT IT.

Photo credit: Mike Haberman

What Companies Are Getting Sued Over!

Thanks to Jon Hyman over at the Ohio Employer's Law Blog who wrote the other day on Do you know? Employment Litigation Expected to increase in 2010. It was an eye opener. I clicked through from his blog to the Fulbright & Jaworski Fifth Annual Litigation Trends Survey and Highlights and read through the employment law section. Here is some of the information I gleaned from that report, but I would recommend you look at Hyman's analysis and also the actual report itself.

The report deals with multi-plantiff cases (aka class-action suits?) and here are some of the results (Note: I am only report results from the U.S., but there are results from the U.K. as well):

• In the U.S. largest increase in multi-plantiff cases where in FLSA wage & hour (19%), discrimination (14%), and Americans With Disabilities Act (10%).
• Increases in FLSA wage & hour cases were highest in California, the South and the Midwest.
• Education and retail had the highest increase in wage & hour cases.
• Discrimination increases where highest in education, financial services and retail.
• ERISA cases were highest in the Midwest and retail and engineering/construction sectors.
• Age discrimination cases rose the highest in education, financial services, retail, and technology/communication.
• Privacy cases were most common in California, but were generally a smaller percent of the overall cases.
• For small companies discrimination was the biggest issue followed by wage & hour. For big companies the reverse was true.

The costs associated with dealing with these cases, excluding settlements often exceed $50,000 per case and almost a quarter of the time exceed $100,000. For a small company that can be devestating. The areas that cost the most to deal with are race, sex and wage & hour cases.

What are we to conclude from these facts and figures? Well the overall conclusion of the report is that companies are going to be spending more on litigation in 2010. Other conclusions that I reached are:

• Education is having some difficulty. That arena made it on just about every list. Anyone have a reason for this? Suggest some.
• Small businesses probably need to do alot more training and education to both supervisors and employees, with race and sex discrimination still being the big expensive issues.
• There is still alot of misunderstanding of the Fair Labor Standards Act, which has only been around since 1938. My experience has been that many companies unknowingly and knowingly violated the FLSA.
• The recession is probably driving alot of this litigation. As people are let go and then have difficulty finding work they start grasping at straws to provide income. One way to do that is to sue your former employer. All the TV ad lawyers will tell you that.

How can you avoid some of this litigation increase? Three things pop to my mind.

1. Understand the laws, train supervisors on the laws, train HR on the laws and abide by the laws. (I can hear all the bitching and moaning about compliance now.)
2. Document that training, document your decisions, especially your compensation decisions (Ledbetter requires it) and document your actions with employees.
3. Treat people with respect and dignity, even when you are firing them for gross misconduct. People are more likely to sue you when they feel like they have been mistreated.

So there you go. As Jon concluded in his blog post about this topic "What does all this data mean for your business? Your legal budgets will likely increase next year. The question you need to answer is whether you want those funds to pay to defend lawsuits, or to proactively audit your internal personnel and employment practices to limit your litigation costs?" I vote that you be proactive! And of course I know a good consultant that would be more than happy to help you. LOL. 

ISM Number Seven: Ugly-ISM

Discrimination against the physcially unattractive has a long history. It has been written about for ages, as far back as Aristophanes’ play, The Assemblywoman, a Greek play about Athens being taken over by women and their attempts to even society out by making ugly people mate with beautiful people. The carnivals that roamed the country used to have sideshows that featured the bearded lady, or Siamese (conjoined) Twins, or some other "freak of nature" that was sure to facsinate and repulse people at the same time. The Elephant Man, Joseph Merrick, was one of the more famous ones, even having a movie of his life made starring John Hurt.

More recently we have had the popular movie Revenge of the Nerds and the series of knockoffs it spawned. And currently running on prime time TV we have Ugly Betty. All of these shows have as there theme the disadvantages of being physically unattractive. Real research has shown that less attractive people make less money and have fewer job opportunities than attractive people. The research was unsure if this was discrimination or if the fact that the more attractive people developed better social skills and more confidence that less attractive people. Body image, as mentioned in my FATISM post, plays a big role in how people feel about themselves.

The movies and TV shows people overcoming these difficulties. But I am not sure to what extent that actually happens. If you start off in life with less opportunity due to your physical appearance do you ever really have a chance to overcome that disadvantage? We would like to think so.

From an HR standpoint there is no law that forbids discrimination based upon ugly. At least none of which I am aware. There may at sometime be such an attempt, but Kurt Vonnegut's Harrison Bergeron, first published in 1961 showed the darkside of trying to be too politically correct. As the plot summary states "In the story, social equality has been achieved by handicapping the more intelligent, athletic or beautiful members of society. For example, strength is handicapped by the requirement to carry weight, beauty by the requirement to wear a mask, etc. This is due to the 211th, 212th, and 213th amendments to the United States Constitution. This process is central to the society, designed so that no one will feel inferior to anyone else. Handicapping is overseen by the United States Handicapper General, Diana Moon Glampers."

The best HR solution is to have a culture of civility and to focus on job performance. Forget about artficially trying to make things "equal".

Ageism in the Workplace

As I was watching the reflection of my hair being cut the other day I thought out loud "Holy crap, look at all that gray hair." The woman cutting my hair consoled me with "At least that is better than loose." Not the greatest of consolation, but it got me to thinking. As many of you know, I had my birthday on July 7th, my 58th such day. Not a hallmark age by any means. But I guess it is better than not getting there.

Age is important to us, especially it seems in the US. And AGEISM exists everywhere. According to the WiseGeek, ageism is a term coined in 1969 by Robert Butler. Most of us think of it in terms of discrimination against older people, especially in the workplace. As The WiseGeek says "Many people use this term specifically to refer to discrimination against older people, but ageism can strike people of all ages." Teens can feel shut out of the workplace with "adultism", a preference for older workers, and older workers feel shut out by "jeunism", where workplaces prefer younger workers.

The legal protection in this country against discrimination based upon age is provided by the Equal Employment Opportunity Commission's (EEOC) enforcement of Age Discrimination in Employment Act (ADEA)of 1967. The law states that it is illegal to discriminate against anyone over the age of 40 in all aspects of employment, unless age is a Bona Fide Occupational Qualification (BFOQ). There is no protection for workers under the age of 40. However, the fact that this law exists does not stop the discrimination from occuring, as you might have guessed. The EEOC reports that in 2008 it "...received 24,582 charges of age discrimination. EEOC resolved 21,415 age discrimination charges in FY 2008 and recovered $82.8 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation)." This is almost 25% of the total number of discrimination claims of all types.

I witnessed an act of "ageism" personally the other day. I was not the target, but I was involved. I was at a local Starbucks (I name the company, but not the location, because hopefully someone in their HR department will read this and realize they have some further education to do. I am sure it is more widespread than this one spot) and I was ordering coffee and trying to pay with my coffee card. However, it needed more money put on it so I also gave the gentleman a credit card. I asked him to load money on my coffee card and to then pay for the drinks with my coffee card. Perhaps I was not clear, but he did not understand me. We went back and forth a couple of times and finally he had to ask for some help. Now the guy was probably about my age or within 5 years. But we were clearly not communicating. So a younger worker, who did pick up on what I wanted, helped him complete the transaction.

End of story? No, the next day I was sitting in the same store, with my under 30 adult daughter, and one of the baristas came over and apologized for "the confusion yesterday." In that apology she said "What can you expect, he is old." Now, being in HR and of similar age, I immediately bristled at this and gave her a mild rebuke. (I would have given her a lecture, but my daughter gave me a look that said "don't go there.")

All this leads to my musings on age. Age is important to us. It colors our perspective on everything. In the US we celebrate "youth" more than older age. Witness the statement "50 is the new 30", or whatever variation you use. I was reading an article as I was waiting to get my haircut about how women over 40 can avoid behaving old. (Text with your thumbs not your index fingers and never wear a watch, among other advice.) Magazines are knocking actresses who are not wearing "age appropriate" clothing. We curse at old people who are driving the car in front of us and we avoid going to Kroger on Wednesday. None of us are immune. I swear at AARP everytime I get their offers to join. At least there are signs that some aging is being accepted. December/May romances between older women and younger men is more acceptable and "Cougars" are being celebrated.

The important thing, however, from an HR perspective is that discrimination in the workplace on the base of age (albeit older age) is illegal and it will cost the company money. Workers need to be trained to be more aware of what they say, how they say and what they do. You need to focus on JOB PERFORMANCE. In my Starbucks example, if the "older" worker was let go due to his actual poor performance, the "innocent" statements of "what can you expect he is old" may cost the company alot of money. So be aware and train your employees.

Ledbetter: The Perpetual Paperwork Act

On Thursday the 19th of March I attended a good seminar at at great venue. The seminar was hosted by the lawfirm of Drew Eckl & Farnham and was held at the Georgia Aquarium in Atlanta. One of the sessions was lead by a long time aquaintence, Joe Chancey. The format for this session was different any other session I have attended. Joe and his fellow attorneys used a scenario presentation that brought home the point they were trying to cover. The scenario that really caught my eye was the following:

• Ten years ago, my supervisor game me a bad review because I had complained about him sexually harassing me. I received no raise that year, as a result. He was fired shortly after that, and I've gotten good raises since then, but I don't think I've ever caught up. Can I do anything to recover the difference?

How do you answer this? What do you think? Well prior to the Lily Ledbetter Act the answer would have been "no." The statute of limitations for reporting the act of discrimination, 180 days, would have long been passed. But now, with the passage of the Ledbetter Fair Pay Act the answer would be different. As Joe and his collegues responded "Every new paycheck tainted by the discrimination is a new violation and restarts the statute of limitations clock." Thus our employee in the above scenario would now be able to go claim sex and pay discrimination and recover some of the money she feels she had missed out on. I say some, because the law only allows retroactive claims back to May 28, 2007.

To make a further point, if this woman had already retired, and was receiving a pension check based upon the amount of her income, then potentially she may still have a claim, since each pension check is a repeat of the act of discrimination and thus resets the statute of limitations clock.

What does this mean for HR? You:

• Must make sure that pay and promotional decisions are documented and are business related, including the business justification for having made that decision.


• May not be able to purge paperwork files for much longer periods of time. If you have someone receiving wage or pension payments in any way shape or form you must retain that paperwork in case someone decides to file a claim. Thus, my title of The Perpetual Paperwork Act


• You need to review any possible such situation you may currently have and see what paperwork or justification you have in the file.

So get to it. Get that work done now before someone files against you. Besides, we have more laws coming later in the year and if you don't do this now you may not have the time.

Bad News and Good News for Women in Human Resources

An article in the Wall Street Journal on Oct. 23rd talked about wage disparities. (Link requires subscription.) This is not unusual. The wage disparity between men and women is well documented and much discussed. The potential reasons are many: discrimination, career interruption, and predominately "female" careers among them. What makes this article noteable, however, is that Cari Tuna is writing about the field of Human Resources, where you would expect wages to be more equitable. And here is the bad news.

First an important fact. The majority of human resources professional are women. "About 70% of the country's 238,000 HR managers and 731,000 HR specialists are women, according to 2007 data from the U.S. Bureau of Labor Statistics." So, you would expect in a field that is predominately female that wages for women would be ahead of men or at least on par. But, "...37 of the 50 highest-paid HR executives at Russell 3000 companies were men, according to a survey of 2007 proxy statements by Equilar, Inc., a California-based executive compensation research firm." And "The median weekly pay for male HR managers in 2007 was $1,581 – about 47% more than female managers took home. Among rank-and-file employees, men earned $1,037 per week, about 28% more than their female counterparts."

This is puzzling and there could be any number of reasons. A couple of new ones were suggested in the article, including who is tapped to fill HR exective positions, and the fact that many top HR positions are "combination" positions. A combination position is one such as VPHR and General Counsel. These apparently are staffed more often by men and who are thus paid more.

But so much for the bad news. Now the good news. Next year this is going turn around! If you are in human resources and you are female you have reason to CELEBRATE! With a Democrat controlled congress women in HR are going to benefit from the passage of three compensation acts designed to eliminate "historic discrimination". With the Paycheck Fairness Act, The Lily Ledbetter Act, and the Equal Pay Act women in human resources (and other professions) will get increases to put them on par with all the men in the profession. Pay disparites, for whatever reason, will be outlawed. Isn't that great news??? Plan the changes in your budgets now! This means that regardless of location, education, years in the job, and performance everyone in a single job title will be paid the same. It will certainly make compensation systems easier. Of course it might eliminate any incentive to try to get ahead. And the value of a degree and certification will potentially disappear. But who cares? Equality is a good thing.

So celebrate the good news! More money for everyone! Assuming the jobs still exist that is. Guess we will see.

NASCAR Sued For Harassment: What a Wreck for HR

The headline screams Former official sues NASCAR over harassment claims. Is anyone in HR surprised by this? A black woman official suffers multiple incidents of both racial and sexual harassment. She complains and then is fired. So now there is retaliation as well. This is going to cost NASCAR big time!

But no one, especially HR folks should be surprised this occurred. The history of sexual harassment is rife with example after example of women taking on roles in traditionally male oriented fields or jobs and being subjected to countless acts of hostile environment harassment. And the history of racial harassment has been the same way, only there it was both disparate treatment and disparte impact.

Given this history, that is over 30 years long, you would think that when NASCAR, a bastion of white males, has a black female (or female of any race) join the fold they would be prepared for situations. You would think HR would be sensitive and would not only head off situations but would certainly respond quickly and vigorously to any complaint. But apparently not because the HR manager is named in the lawsuit. Shame on them. They should never work in HR again!

The lesson to the rest of us, if you have not learned it before now, is that when you are going to mix races and sexes in areas where they are not traditionally mixed you had better be prepared for trouble. Training, response time, investigation, discipline all need to be planned for and instituted as quickly as possible. If you don't you will probably get what you deserve. In my opinion NASCAR is going to take a big hit, one that it definately deserves.

GINA: Not Just About the Genetics

President Bush signed into law, on May 21st, the Genetic Information Nondiscrimination Act. Beyond the expected healthcare provisions it also had two very HR related provisions:

1. It prohibits discrimination in all areas of employment on the basis of genetic information of the employee or employee's close relatives. This includes hiring, firing, compensation, terms or priviledges of employment. An employer would also be prohibited from limiting, segregating, or classifying an employee in any fashion that would deprive the employee of any employment opportunities or adversely affect the status of the employee because of the employee’s genetic information (or the genetic information of the family member of the individual).


2. A change unrelated to genetic information is the amendment to the Child Labor section of the Fair Labor Standards Act (FLSA). GINA provided for fines of up to $100,000 for any child labor violation that leads to the death or serious injury of any employee under the age of 18.

To me preventing the death or injury of any employee is of paramount importance, but especially if you have children working for you. If you needed anything else there is also this significant financial "incentive." So make your workplaces safe, have rules that are enforced and watch those kids. They think they are "bullet-proof" and may be inclined to short cut the rules.