To many lawyers and others, this represents a welcome reduction in risk and a sign of progress. Compared to practices and conduct of past decades, it is.
Yet, I’m betting if you were to walk into many organizations that had a minimal number of claims and lawsuits, employees would tell you there’s a serious issue lurking just under the surface. It’s a source of internal charges, complaints, negative engagement survey feedback and daily frustration. But, the behaviors involved do not hit the compliance radar. For that reason, they are not taken seriously by many.
Essentially, individuals from different groups are raising issues of exclusion, e.g., being ignored in daily conversations, being spoken to dismissively, not getting the same social and professional welcome as their colleagues, and being limited to formal, if not wooden, levels of communication and interaction. To them, unfairness and isolation are obvious and painful, restricting their opportunities for mentoring and advancement.
Whose view of the workplace landscape is right? Both are. Legal risk over “traditional” EEOC claims is clearly declining, in large part, due to improved employment practices. These have been built on years of experience and a commitment to fairness and compliance following a 50-year history of statutory civil rights enforcement and awareness. In fact, many of the worst slurs, behaviors and actions are relatively rare as more employers have enacted strict policies, implemented workplace training and reporting mechanisms, and continue to scrutinize individual actions for evidence of disparate treatment and statistical impact.
There’s a big gap between illegal and exclusionary conduct. Here’s why: in most parts of the U.S., if you remove tangible actions and overt forms of mistreatment, such as blatant disparate treatment or outrageous verbal or written actions, it’s nearly impossible to raise viable claims of discrimination.
However, the impact of what’s being termed “subtle behaviors” is real. Surely we can all remember instances when we were excluded based on such interactions. And, in our workplaces today, at least from what many surveys and opinion polls indicate, perceptions of racial gender, sexual orientation, and ethnic and age alienation still remain based on such conduct. As Hamlet said, “… there’s the rub.”
The way we communicate and how we interpret our interactions is largely based on tone of voice, body language, eye contact and casual social interactions — all of these give us the perception we’re either part of — or excluded from — groups. And, these groups include our workplace assignments. Though negative interactions don’t lend themselves very well to “legal” proof, they still have the power to demotivate and demoralize and definitely affect performance, quality, retention and other important business metrics.
Think about your co-workers. Even though you share the same organization, that doesn’t necessarily mean you’ll share the same perceptions of certain workplace comments and behaviors.
Unless employers mean that inclusion is limited just to behaviors that can spark compliance liability, it’s vital to see both sides of the picture in our workplaces. This is the only way to fully address our organizations’ commitments to fairness, civility, inclusion – in essence, the intended purpose of laws dealing with fair treatment at work.