Recent events and attendant social justice movements have thrust long-standing racial inequities into the spotlight and ignited a national and global conversation. That conversation has not only taken place in the streets, but has naturally permeated the workplace, both domestic and international, and the (virtual) watercooler.
This moment is unique; it presents employers with a fresh opportunity to engage employees in an authentic and constructive dialogue about employee experiences and racial equality.
However, in meeting this unique moment, employers should be mindful of their corresponding legal obligations that may arise from these conversations, including, but not limited to, how they chose to reaffirm their commitment to creating a diverse and inclusive workforce. Considering ways to reach particular diversity goals through lawful recruitment and hiring practices is just one avenue that employers should carefully review.
How have employers fostered a dialogue about race and inequity, and what are the attendant legal risks?
Over the past few months, employers around the country have engaged employees on the topics of race and equity, including through town hall discussions, speaker series with external and/or internal speakers, smaller focus group discussions, and employee surveys. These employer sponsored events present a pathway for employers to broach what has historically been the elephant in the room and to bring greater understanding and awareness of race and equality within the workplace.
Such discussions often prove fruitful both personally and in terms of employee morale; the conversations generate awareness of the impact that implicit bias and microaggressions can have on peers and colleagues, provide an opportunity for often difficult self -reflection on old habits, and bring into focus how to be an ally to historically marginalized groups.
Employers should not shy away from these conversations because nothaving them is a risk in and of itself. Instead, employers should account for the risk s inherent in discussions about inequity which may be perceived to be occurring in the workplace.
An employer should approach the discussions with an eyes-wide-open recognition of its legal duty to investigate claims of unlawful discrimination and harassment of which it becomes aware or should reasonably have become aware.[1] So what steps should an employer take to mitigate the risks inherent in having these difficult and often emotional conversations?
First, remind employees that these meetings are not the place to air complaints about specific incidents at work or individual colleagues. By keeping specific workplace complaints out of these town hall or small discussions where human resources representatives may or may not be present, employers will better ensure that employee complaints do not fall through the cracks.
Also, employers should set a tone for discussions that avoids infringing upon individual privacy rights of employees who may have made informal or formal complaints or calling out individuals for real or perceived policy violations or unlawful conduct. Employers should also remind employees that tape recording meetings is not permitted unless there has been express consent given.
Next, to make sure there is a clearly articulated channel — other than public town hall meetings — to report inappropriate conduct, employers would be well advised to take this opportunity to revisit their anti-discrimination and anti-harassment policies to ensure, not only that such policies are legally compliant, but that the policies meet this moment.
For example, employees should have clear and multiple avenues to report complaints of discrimination and harassment even under virtual or short-staffed conditions. In addition, employees should be reminded that discrimination and harassment prohibitions apply even in a virtual working environment. And, of course, employees should understand what constitutes unlawful discrimination and harassment and how to properly report a complaint pursuant to the policy.
With that foundation, employers should have a higher degree of confidence when conveying that town hall forums and other discussion groups are intended only to foster the sharing of personal experience and learnings regarding racial inequities.
Employers should be clear that these conversations are not designed for lodging formal complaints that should otherwise be raised with HR and/or in accordance with a company's reporting policy and procedures. Employers should be mindful of their messaging in this regard so as to not defeat the utility of these sensitive conversations by impressing upon...
