How to expand acceptance policies to avoid employee discrimination issues

Kristina Chung, Partner, Ropers Majeski Kohn & Bentley PC

Having diversity in the workplace not only brings a sense of harmony but also new perspectives that allow for creative development and collaborative innovation. Promoting acceptance and encouraging people with different backgrounds to be active in your company is just good practice — and it may keep you out of unwanted trouble.

Kristina Chung, a partner at Ropers Majeski Kohn & Bentley PC and an expert in employment law, says employee diversity can be a big boost to business, thanks to all the benefits that come with it.

“Having a diverse work force increases your own understanding of the greater world beyond,” she says. “We live in a diverse economy and global community now. This creates a clear business case for diversity to better understand our clients and customers. We also learn internally from different life experiences and perceptions of our colleagues to foster creativity, innovation, outside-the-box thinking and, ultimately, better service and products.”

Smart Business spoke with Chung to find out how to successfully build a diverse work force in your company.

Beyond race, religion, gender, sexual orientation and national origin, what are some concepts or characteristics that are related to employment diversity? 

There can be implicit biases attached to physical appearance such as weight, unattractiveness and body markings like piercings and tattoos. The same can be said for voice and speech impediments or for a person’s lifestyle choices or beliefs.

These biases can create an obstacle to promoting an inclusive environment. If you harbor preconceptions or subconscious notions about how bright, capable or productive a person is based on his or her outward appearance, speech or lifestyle, then you can harm your business because you may exclude someone who could be a significant benefit to your workplace.

What actions should an employer take to demonstrate support for a diverse workplace?

It’s important to show visible support and to take affirmative action. That can mean promoting qualified people who are of more diverse backgrounds into management-level positions or by engaging in community programs that focus on a diverse audience, including helping to provide scholarships and participating in mentorship and pro bono/volunteer services programs.

How can an employer avoid legal problems stemming from discrimination?

The importance of making available information about an employee’s rights, and providing updated training to and consistent monitoring of managers and supervisors, cannot be overstated. Companies should review their employee handbooks on a regular basis to make sure they are complying with their state’s respective laws, particularly as to their nondiscrimination clauses and prohibited conduct. And as to diversity, some companies are now incorporating a ‘commitment to diversity’ provision, although that is not required.

Companies need to ensure that their managers are properly trained, not just in the law, which is constantly evolving, but also for the actual handling of complaints and conducting of investigations. In California, larger companies are required to provide sexual harassment training and expanding those programs to help prevent discrimination could potentially help to reduce liability and damages awards. Diversity training goes hand-in-hand with an employer’s efforts to maintain a discrimination-free workplace. This type of training can include identifying, acknowledging and eliminating the implicit biases mentioned earlier.

Where should a business owner go for this type of training?

Seek the help of a trained professional with the proper background and experience in employment law. The benefit of using the services of a practicing attorney is that he or she will be up to date on recent legal developments. For example, California’s nondiscrimination laws relating to gender recently changed to specify gender identity and gender expression as protected categories. So now, employment handbooks can spell out their policies more clearly, which means employees can better understand their rights and employers can better understand what the law means and are better able to comply with it.

What should business owners do if a discrimination claim is filed against them?

Be open minded to hear everything that the employee has to say about the complaint first as part of a full-scale investigation. If the owner simply makes assumptions, it may lead him or her down the wrong path, such as litigation, that the employee never really even wanted. The owner should fully understand basis for the complaint and what the employee is looking for in terms of resolution.

During the investigation, the complaint should be taken seriously. That is why the person conducting the investigation must be properly trained so that he or she knows what is legally mandated and to make sure that all bases are covered. The owner should contact legal counsel to make sure he or she is complying with all rules and regulations, including not destroying documents and meeting required deadlines.

Kristina Chung is a partner with Ropers Majeski Kohn & Bentley PC. Reach her at (650) 780-1706 or [email protected]

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