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Avoiding Discrimination - Minimize Problems by Being Prepared

Discrimination is a word that conjures up fear, anger, stress, and a whole host of negative emotions.

And complaints of discrimination can severely damage businesses.

When faced with such a strongly negative situation, many managers’ first reaction is often avoidance or denial: “They couldn’t possibly have done that!” or “If we wait a few days, the whole incident will blow over.” Ironically, these reactions can make the situation even worse.

Whether the alleged discrimination has happened or not, whether you think the incident warrants a complaint or not, whether you think it was a one-time mistake, or whatever other “whethers” you can think of, when an incident is reported – deal with it promptly.

Beyond the obvious moral objections to discrimination, many countries provide strong legal protection for employees who are discriminated against, and organizations ignoring or taking insufficient notice of this protection face severe sanctions.

Avoiding a Poisoned Workplace

Just as important, however, discrimination in the workplace creates an unfair and unpleasant working environment. By ignoring it, you risk undermining the effectiveness of your team and losing good team members: After all, who wants to work in an environment where arbitrary discrimination and unfairness are tolerated?

In order to deal effectively with workplace discrimination, it’s important to understand exactly what it means. Workplace discrimination is defined differently in each country and jurisdiction, but the main principles are similar: That employees, and applicants for employment, should be treated fairly in their employment and advancement, based on their abilities, and not based on arbitrary characteristics of color, religion, national origin, sex, age, sexual orientation, or physical handicap.

No one ever wants to hear a discrimination complaint but, even in the best of workplaces, these can happen. So, the best way to protect yourself and your employees is to know how to deal with the situation in the most proactive and positive way available. The situation will unfold with or without your cooperation, so it is best to get on board early and minimize the risks and damage as far as you possibly can.

Here are some of the essential steps to help you do that:

Understand the Discrimination Laws That Affect You

Discrimination issues leave no time to “play ostrich” and “bury your head in the sand”. Even if you are 100 percent convinced that discrimination could never happen at your workplace, you are very likely wrong. Research the discrimination laws that apply to you. It’s your responsibility to know. If you gather the information for yourself, make sure you get the latest information and keep it up to date. If someone else in your organization is responsible, make sure they provide you with information that clearly defines your responsibilities as a manager or employee and the rights of both employers and employees.

Tip: For help in understanding discrimination laws that affect you, check out official government web-sites for your country, state and other jurisdiction. Here are some useful links for small businesses in the United States and the United Kingdom:

Develop and Follow Your Non-Discrimination Policy

Your first line of defense is a clear, properly-formulated non-discrimination policy. When there is a clear policy in place, you have a good starting point for determining whether or not discrimination has occurred: A clear policy will detail the exact procedures and protocols for handling the discrimination complaint. Having a policy ensures that all cases are treated fairly. If your company does not already have an effective non-discrimination policy, it’s time to develop one (or persuade whoever’s responsible to do so): This is the most proactive measure you can take against discrimination.

When developing or reviewing your non-discrimination policy, consider including the following steps and measures, as you move forward with a discrimination complaint.

Register the Complaint

Once the complaint has been raised to you, you need to decide who needs to handle it. If someone in HR is responsible, for example, make sure you involve them straight away. Whether you handle the complaint and investigation yourself, or someone else takes charge, make sure you know how it should be handled, and keep abreast of progress so you can actively support the people involved, whether that’s the person raising the complaint, the ‘accused’ or anyone else who is affected.

The steps and tips that follow may apply to you or the other person responsible for handling a discrimination complaint:

Conduct a Thorough Investigation

You (or the other person handling the complaint) should first talk with the ‘complainant’ to determine the exact nature of the complaint and get the story from their perspective. From there, speak to the person or people accused of discrimination to find out:

  • What was said/done?

  • When did it happen?

  • Where did it happen?

  • What were the circumstances surrounding the incident?

  • Is there a history?

  • Who else was involved or can comment first hand on the incident?

Talk to all the other people involved including anyone who may be a witness. Be sure to take detailed notes and understand that these notes may be used in any legal proceedings that may arise.

Tip: It can be a good idea to review your interview notes with the person you are interviewing to make sure you have written everything down accurately and comprehensively.

The end goal is to discover what really happened so be sure to consult impartial sources and gather physical evidence such as notes or emails.

Document your entire investigative process. What did you do? When? What sources did you consult for information? This will be your evidence that you handled the complaint appropriately and efficiently.

Act Quickly

Time is of the essence in any investigation. You (or the person handling the complaint) should get as many facts as possible quickly: The longer you wait, the less reliable the information you get may become. Also, when you act quickly you send the message that you take this seriously and that speedy resolution is important to you.

Keep an Open Mind

Yes, even the most trusted, loyal, long-term employee can be engaging in discriminatory practices. And, no, you may not have the slightest hint it is happening. Whenever you get a complaint of discrimination you need to assume that it may have happened and then take the steps necessary to determine what actually did occur. The most serious mistake you can make is not to investigate because you just can’t believe the allegation could be true.

When you are in investigation mode, be sure to remain impartial. If you allow yourself to take sides before you have all the facts, you risk skewing all the information you gather. There is a strong tendency for people to blame the person who has complained because they upset the status quo in the office. You may not even be aware of this natural bias, but it can get you in a lot of trouble.

Tips to remember here are:

  • Treat the complainant and the accused equally and as you always have.

  • Do not retaliate against either party through obvious methods such as termination, demotion, discipline, or pay cuts. Any such action needs to be carried out in a measured way following a fair investigation.

  • Guard against subtly changing work responsibilities, or not including either party in regular work functions.

Act Confidentially

When someone makes a discrimination complaint, the last thing you want is rumors and gossip going around. Employees will begin choosing sides and the whole situation has the potential to devastate your workforce. Even worse, allowing incorrect or unfair information to circulate can irreparably destroy the reputations of either party and can open you up to defamation lawsuits.

If you insist on confidentiality at every step of the process you can curtail much of this destructive chatter. You have to follow this rule yourself and ensure that you only involve those that need to know or that have legitimate information to bring to your investigation.

Some tips to improve confidentiality include:

  • Make sure your notes are secure

  • Hold meetings behind closed doors

  • Explain the need for confidentiality with everyone you speak to

  • Institute consequences for breaches of such confidentiality

Be Compassionate

Both or all parties in a discrimination complaint are likely to be feeling angry, vulnerable, anxious, frustrated, and afraid all at the same time. By recognizing the difficulty each is facing you show that you care and that you truly desire to set things right, whatever the outcome might be. Certainly, you need to make sure the complainant feels heard and satisfied that you are going to act. Don’t forget, though, about the needs and feelings of the person who accused. They're going through an equally difficult time, and whether the allegations turn out to be true or not, they deserve respect and compassion throughout the process as well.

Work With External Agencies If Applicable

Depending on the nature of the discrimination, the employee may go to a government agency to file a complaint as well. In such cases, it is advisable to get legal or other professional advice. Within reason, you will want to allow agencies access to the materials and information they need to do their job: After all, this agency has the same goal as you do – to uncover the truth. Your professional adviser will help you work most effectively with the agency, and help you manage any risks that you or your organization may face as a result of the discrimination.

Effect Resolution

When the complaint has been fully investigated, you need to take action and remedy the situation. Depending on your policy and local laws, this may involve disciplinary action up to and including termination, should discrimination have been proved to have taken place. You may also need to determine an appropriate consequence for a false complaint. The remedies for either party should be clearly outlined in your non-discrimination policy so it is “simply” a matter of following through and applying the policy fairly, appropriately, and promptly. Finally, document your actions in your investigative notes and keep the information on file for future reference.

Key Points

Discrimination complaints can be handled effectively when you are well-prepared and take a proactive approach to dealing with discrimination in your workplace. Certainly, the goal is to prevent such behavior from occurring, but unfortunately even the most well-intentioned people sometimes make regrettable mistakes. As a manager or employer, however, you cannot afford to make the mistake of thinking discrimination will never affect you: There is no excuse for not being well prepared. Take time now to review or develop a solid non-discrimination policy and include in it a set course of action, in case of an investigation. By doing so you will protect your employees, your team, yourself, and your business.

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