Court Odyssey 2001

HR policy-makers should watch the Supreme Court

The workplace has become a breeding ground for constitutional challenges in recent years. Disabilities, reverse discrimination and same-sex harassment are just a few of the millennial workplace-centered issues that have come before the Supreme Court in the last two sessions. Several factors contribute to putting renewed focus on minorities and employment: the labor shortage has brought more minority workers into the workforce; social trends have raised visibility for some groups, such as gays or the disabled; and minorities are increasingly willing to assert their rights.

Hence, diversity managers have ample reason to pay attention to Supreme Court judges and their decisions. Take one of two prominent minority-and-employment-related cases the justices are mulling right now. Circuit City v Adams is indirectly a bias case. Adams, a gay employee harassed by co-workers, sought redress through company channels but got no satisfaction. What’s at issue, however, is not the bias he experienced, but whether the company-mandated arbitration waiver he signed prevents him from seeking redress in court. A ruling for Circuit City would immeasurably strengthen arbitration agreements, which experts predict would become widespread. A ruling for Adams might require many companies to change their waiver policies.

A more prominent current case, University of Alabama v. Garrett, is a direct assault on the Americans with Disabilities Act of 1990, based on an assertion of states’ rights over federal rights. Recent history shows the current court narrowly in favor of the states: the same 5-4 majority has recently protected the states from federal overtime laws (Alden v Maine) and from the Age Discrimination in Employment Act (Kimel v Florida Board of Regents). If the justices find for Alabama in this case, it could bring more challenges to other federal civil rights legislation.

Currently, in lower courts, quotas and set-asides are being challenged. In universities, the pipeline that supplies labor, affirmative action remains under fire. A three-way case in Detroit pits the University of Michigan and minority students against rejected white applicants. The case, widely expected to reach the high court, calls into question one of the rationales for affirmative action or similar programs: that diversity is in itself a worthy goal. A number of companies, including General Motors, have weighed in on the side of the university in valuing diversity.

But the workplace will continue to be a hotspot for constitutional issues. A growing variety of religious faiths require workplace accommodations. Activists are campaigning against bias based on looks (so-called "fat acceptance"). If an economic reversal brings flurries of pink slips, expect lawsuits over the procedures by which these decisions are made.

With the majority these days frequently narrow, widely anticipated new appointments will have dramatic impact. Many observers are predicting that the next president – Republican or Democrat – will appoint a Hispanic to the court. The Hispanic National Bar Association is already making its case for such an appointment to the presidential candidates. Minorities are ill-represented among federal jurists: 75 percent of the nation’s circuit courts have either no African American or no Latino judge and less than one percent of federal judges are Asian or Native American.

It’s no surprise to find minorities at the heart of constitutional law, since a major function of the Constitution is to protect minorities from the tyrannies of the majority. Increasingly, those cases involve corporate policies, and the next few years should see plenty of action.

Shoemaker, ad agency embarrassed by too-hip ad

Advertising agency Wieden + Kennedy and its client Nike retracted an ad and issued apologies for a mordant cutting-edge ad that sparked protest from disabled. The ad, which was running in fall issues of outdoor sporting magazines like Backpacker and Climbing, promoted a shoe that would let users "taunt mortal injury without actually experiencing it." The offending copy read in part, "Right now you may be asking yourself, ‘How can a trail running shoe with an outer sole designed like a goat’s hoof help me avoid compressing my spinal cord into a Slinky on the side of some unsuspecting conifer, thereby rendering me a drooling misshapen non-extreme-trail-running husk of my former self, forced to roam the earth in a motorized wheelchair with my name embossed on one of those cute little license plates you get at carnivals or state fairs, fastened to the back?’" Disabled groups rallied with phone calls and emails, and the companies apologized.

Coke’s efforts don’t stave off fat payout

After taking numerous steps to address bias internally, the Coca Cola Company agreed to pay $192 million to settle a major class action discrimination suit brought by African Americans, easily outstripping the $176 million paid by Texaco in a landmark 1996 race bias case. In the month prior to the settlement, Coke had announced that all 9,000 employees would be required to take a two-day diversity course, and that the company would create special interest groups for employees. The moves were the latest in a series of measures, including a new diversity committee, new diversity director, new mentoring program and new policies on performance evaluations. An independent committee will monitor Coke’s progress. The bulk of money goes to compensate employees, with $43 million set aside to adjust salaries over the next 10 years and $36 million earmarked for monitoring. Separately, Coke pledged $50 million to minority communities.

Who’s that foreigner driving our Ford?

When the news broke that Firestone tires and Ford autos were a dangerous combination, Ford Motor Co. didn’t try to hide. The U.S. automaker quickly produced a commercial featuring its CEO, Jacques Nasser, apologizing and reassuring customers. Apparently some customers were less than reassured by Nasser’s Australian origins. According to a tiny item in The New York Times, an anonymous executive says viewers called, dismayed that this national icon of business was being run by a foreigner or befuddled by what they called his "Crocodile Dundee" accent.

TV Shocker: Age bias is rampant offscreen as well as on

A class action suit filed in Los Angeles District Court accused the television industry of systematic bias against older writers. Backed by Sprenger & Lang, an employment law firm based in Washington, D.C., more than two dozen TV writers are seeking upwards of $200 million in damages from the major networks, producers and talent agencies. The complaint cites numerous ageist comments allegedly made by agents, producers, directors and executives, as well as statistics showing a dearth of jobs for older workers. In the 1998 season, two-thirds of TV shows employed no writer over 50. The Screen Actors Guild has just begun its own study of ageism in primetime programs, on-camera and off, with results to be released next spring.

Viacom makes a big BET on black audiences

After much press speculation, Viacom announced that it would buy BET Holdings Inc., for about $2.35 billion in stock, taking $570 million of BET debt. BET Holdings, which owns Black Entertainment Television, is the nation’s tenth-largest black-owned business. Both Robert Johnson, BET’s chairman and CEO, and Debra Lee, president and COO, will continue in their roles with Viacom for five years. While Johnson held that his new position as a major Viacom shareholder would give him power, some African-Americans criticized him for abandoning them. Johnson also said that the AOL/Time Warner merger inspired him to ally with a major media company. Viacom chairman Sumner Redstone said he had long had an eye on the largest black-owned cable network and its sister properties. Viacom is expected to use its clout with cable companies to expand BET’s reach, thus boosting the potential for ad revenue.

People in the news

Paula Madison, one of the top black females in television news in the country, resigned as news director of WNBC-TV in New York, which she had helped build into the market’s top station. Madison, 47, moves to Los Angeles, where she will become president and general manager of that city’s NBC affiliate, KNBC-TV...... Muriel F. Siebert, one of the top women on Wall Street, recently bought two women’s finance websites, www.wfn.com and www.herdollar.com. The sites, which offer financial information to women, will be folded together......Heidi Miller, one of the nation’s top women in finance, is leaving the job she took at Priceline.com just eight months ago. Miller, who left a lucrative and prestigious position as CFO of Citigroup, hopes to return to "a more established business environment."...... Robert Knowling, one of a miniscule elite of African Americans in Silicon Valley, resigned his $16 million dollar job as head of Covad Communications Group, a broadband wholesaler of high-speed internet access. Knowling was forced out by the founders who hired him just three years ago, in the face of a tumbling stock price, missed financials and shareholder lawsuits......True North Communications named Mannie Jackson, chairman and a majority owner of the Harlem Globetrotters, to its board of directors. A former Globetrotter himself, Jackson is also a director of Ashland Oil Co., Reebok International, Stanley Works and Jostens. Prior to taking over the Globetrotters, he spent 25 years at Honeywell, rising to become senior vice president......Dell Computer Corp. has name William H. Gray III, president and CEO of the United Negro College Fund, to its board of directors. Prior to joining the UNCF in 1991, Gray spent 12 years as a congressman for Pennsylvania......Lloyd Ward, one of the highest-ranking African-Americans in business, resigned from his post as Chairman and CEO of Maytag Corp. after just 14 months in the top slot. Ward, who was hired from PepsiCo. in 1996 as president of the major appliances division, had been credited with innovative strategies for turning around the ailing home appliances maker. Disagreement with the board over strategy sparked the move, the company said. Maytag stock has been in the doldrums and the company is rumored to be a takeover target. Heidrick & Struggles is searching for Maytag’s new chief.

Reaching Spanish-Speaking Workers

Some tools for better management - by Carol A. Hastings

Carole Hastings is a translator, interpreter and corporate trainer as well as co-founder of Corte Hispana, a Santa Monica-based firm which offers culturally appropriate training products and services to companies with Spanish-speaking workers. An intrepid traveler who perfected her Spanish at the University of Salamanca in Spain, she has also worked in Mexico and Costa Rica, and is intimately familiar with cross-cultural working environments. Along with her partner, Efrain Logreira, an experienced writer and video producer, Hastings started a cable program to educate Spanish-speakers in southern California about legal issues. Their segment on harassment evolved into"No!... Basta Ya de Acosarme," a video about sexual harassment in the workplace. Hastings can be reached at 310-458-6998 or via cortehispa@aol.com.

Markland Industries, a motorcycle parts manufacturer in Santa Ana, CA., couldn’t survive without its 250 Hispanic workers. Outnumbering Anglos at the company 10 to one, they do the bulk of the low-skill work – assembly, packaging, sanding and welding. Some of them have worked there for 10 or 20 years. They do present one small challenge to Keith Reineke, Markland’s general manager: almost all are Spanish-speakers with minimal knowledge of English.

Latinos are the latest tide of immigrant stepping in to take jobs Americans disdain. Although the popular image is the migrant fruit picker or illegal domestic, many foreign workers are long-term residents or relatives of U.S. citizens, complete with green cards. Spanish-speakers from Latin America fill positions in manufacturing, construction, food processing, and hospitality – virtually every industry where entry-level employees are needed. And not just in southern California. They pack meat in Iowa plants and clean shopping malls in New England; assemble plastics in North Carolina and dig ore in Idaho. Although Spanish-speakers are not the only non-English-speaking workers in America, they are the largest language group.

Not only do these Hispanics speak a different language than American-born workers; they have different views toward work. Employers who understand that and act accordingly gain productivity and loyalty. Employers who do not do so run the risk of faulty procedures that may lead to legal violations or flawed production. Other, more complex, problems conspire to waste benefits and increase costs. While setting hard and fast rules relating to cultural traits is risky, there are key strategies for successfully managing native-Spanish-speaking workers. Some apply to managing other nationalities of immigrant workers as well.

Start with language, the obvious immigrant hurdle. Training in a comprehensible language can be imperative in ensuring compliance with legal rules, such as OSHA’s on safety or the EEOC’s on harassment – never mind getting the widget made right. One construction company in Phoenix started giving Spanish lessons to its foremen (easier and cheaper than teaching the workers English), and found productivity improved dramatically. Even experienced companies can get tripped up. Markland had long offered training in Spanish, but recently added sexual harassment training in Spanish after a near brush with the legal system.

Operating in foreign language has some pitfalls, however, even if management does know some Spanish. Poor translations can spark frustration and misunderstanding. Also, levels of formal education vary widely among immigrant workers; many have no more than a grade school education in any language. Well-devised visuals and demonstrations may be necessary. When possible, use bilingual employees as liaisons. Keith Reineke notes that the one-to-two percent who do speak English become leaders.

What’s less obvious is that some concepts need extra explanation, even in Spanish, because they are culturally unfamiliar to non-Americans. This is particularly true with benefits. Think of the new world of health insurance, which is confusing even to native-born Americans. HMO, PPO, co-pay – many of these are entirely new concepts to foreigners. Spanish-speakers who don’t understand the system often resort to the emergency room or local clinics. Employers with an influx of workers who don’t understand their health care plan procedures can find claims inappropriately attributed to worker’s compensation rather than health plans, leading to hefty, sometimes sudden, premium raises – from $100,000 to $500,000 per year, in one case.

Another tricky area is payroll deductions. Many Hispanics are wary of financial institutions and instruments, and hence reluctant to participate in 401k plans. In addition to putting the employee at a disadvantage when he or she retires, lack of contributions from lower employees may hit legal thresholds that impact management’s ability to contribute. An employee who does not understand and receive the value of his or her benefits may cross the street for an additional 25 cents per hour, even if there are no benefits. The employer has to pay for recruiting and training a replacement – roughly $8,000 to $10,000 for a manufacturing worker.

Of course, it can be hard to know when explanations are understood. Most newly arrived foreigners are not prepared to say that they don’t understand, out of pride or fear of being criticized or fired. Employees need reassurance that they will not be punished for requesting clarification. It could be worth the extra training time to have employees demonstrate newly-learned procedures to the trainer, so they learn that "getting it" counts more than a positive reply.

Likewise, "yes" may not mean yes and "right now" might mean later. Americans tend to be deed-oriented and aggressive. Hispanics (like Asians) prefer to be diplomatic, agreeable; "yes" is often a knee-jerk non-confrontational response, not necessarily a commitment to action. Encourage Hispanic employees to specify when a task can realistically be completed, rather than simply saying "yes." And don’t bark orders! That’s another side of the non-confrontational nature: if YOU are confrontational they won’t like it either and you may not get the results you want.

Sometimes, that non-aggressive nature is taken as laziness or passivity. I worked at a free clinic which treats mostly Mexican patients, many of whom were able to work to one degree or another. The U.S.-born medical personnel, all of whom were volunteers, often complain that the Mexicans didn’t offer to help. "Do they take this free medical care for granted?" my colleagues would whine. It turned out the Mexicans are just waiting to be asked, not wanting to presume. Hispanic culture carries an ingrained respect for authority. An American supervisor may need to take extra steps to encourage initiative.

Finally, in Latino cultures, family still comes first and work is much more personal. Respect is given more to individual managers than to institutions. A Salvadorean worker may come by the office on his day off to pick-up his paycheck, with his wife, mother, and children in tow. Most Americans would probably leave the family in the car, but the Central American considers it appropriate to bring them into the factory. The respect shown by the supervisor who takes time to meet and greet the family will be repaid with dedication, trust and loyalty.

We all want respect. Because Spanish-speaking employees don’t always understand doesn’t mean they are incapable of understanding. We have learned new skills to adapt to our computers, because we know they are an invaluable workplace tool. Our bottom line benefits from this cadre of Spanish-speaking workers. Developing the skills and understanding to work with them may be critical to happier employees, less turnover and increased productivity.

Global At U.S. Global

Texas finance firm is ‘like UN’... sort of

Since then, as chairman and CEO, Holmes has been head cheerleader for a multi-ethnic workforce that mixes local Anglos and Latinos with a generous smattering of international riff-raff. Holmes takes pride in cultivating U.S. Global’s image as a truly global company, inside and out. He is also convinced that the global reputation is a competitive advantage. Irene Hernandez, vice president for human resources, says she has not had difficulty finding workers, "even in this economy." Holmes’ comments here are excerpted from a recent conversation with Diversity Monitor.

I’m originally from Toronto. Just to put things in context, Toronto has been voted the most cosmopolitan city in the world for several years running. There are four Chinatowns. My high school was 30 percent Asian. Toronto also has large Jamaican and Italian populations. So when resumes come in from afar, from Pakistan or Sweden, it’s natural for me to say, "Let’s interview them."

Our IT person is from Jordan and his father is from Russia. We have a kid from Romania in the technology department. The foreigners are mostly in portfolio, marketing or the technology department. People hear about us from friends and we’re known for being very mixed. Especially where we’re located, I think it’s a competitive advantage. Looking for people who understand investments and technology in San Antonio is a challenge. Tourism is very big. Military and biotechnology are very big. Otherwise, there’s really not the right talent pool to draw upon.

We embrace our multiculturalism and promote it as a learning opportunity. People are made to be sensitive and respectful about different cultures. We’ve got Jewish holidays, Muslim holidays, Hindu holidays. People become interested in each others’ traditions.

For people from areas like New York our diversity is a non-event. It’s more the Texans who are amazed at all the nationalities in our office. They usually comment, say we’re like a United Nations. Other companies are exploring this strategy because I’ve been successful in attracting talent. I know one of the local banks is now recruiting people from India to its technology department.

The firm used to go away for think tank sessions. One of the first years after I bought this business I said, "Let’s go to Mexico City. It’s the largest city in the Western hemisphere, incredible history, beautiful museums." None of the people from Texas had been there. Some of them had taken holidays in Baja, but they’d never gone to the capitol. These are educated people and I was really shocked. The attitude was often, "I’m not interested in China," you know? "That’s over there." Then someone like Jerry Liu, who was born there, will start talking about it, where it has come from, where it’s going. That gets people interested. Our employees hear the positive side.

The only real difficulty has been accents, mostly when people have to communicate quickly on important things. If there is any frustration, that’s it. Sometimes when you get the Russian talking to the Chinese guy they have to slow down because English is the medium. People sometimes joke about accents. You know Asians have difficulty saying "l". They say election with an "r." When we talk about the polls they’ll tease the Chinese guy and everyone gets a good chuckle out of it. It’s not done in negativity, it’s done in jest. It just gets everyone laughing and then we move along.

But the bigger part is, people will rip out articles on China. People will see an article about how 30 percent of Microsoft’s programmers are Indian and pass it on. So they’re relating. People who grew up in little towns in Texas, some really bright, but who never experienced mixed culture, never got to talk with someone from India. Now they’re ripping out articles and avidly discussing world affairs. That’s the positive part.

The most friction we ever had was two Chinese guys arguing over their ping pong game. They were both PhDs, one from Beijing and one from Shanghai. Somehow ping pong came up and one said, "You’re not very good. I beat you with a dessert plate." Then they both started going at it. We were in the middle of an interview with a candidate from England. He laughed and said, "I can’t believe this. Yeah, I’ll join."

Best Practices – Bar None

A non-profit group called Lawyers for One America (LFOA) has spent much of the last year studying diversity in the legal profession and how to improve minority representation. "Bar None" a recently released report summarizing the results, offers sample policies and model programs. Based mostly on input from law firms, bar associations, and legal professional groups (although corporate leaders such as BellSouth, Wells Fargo, and Merck also gave input), the report’s "best practice" recommendations nonetheless have wider application. Substitute words like "manager" or "senior executive" for "partner" or "senior partner" and their prescriptions could apply in any type of company.

START WITH STRATEGY

Strategy must be the foundation. Ensure that strategic plans include provisions relating to minority hiring, retention, and advancement, with concrete programs focused on specific goals. In an LFOA survey, lack of specific commitments to diversity in strategic plans was frequently cited by minorities as a reason for leaving. Provide senior managers and executives with the names of clients who have requested evidence of diversity, so that everyone recognizes the bottom-line impact.

Commitments need concrete backing. Monitor and measure progress with respect to those specific goals. Maintain a well-funded minority retention committee that meets regularly, preferably chaired by a senior executive with clout. Publicly recognize and reward employees who show outstanding performance in managing diversity. Award ‘bonus points’ to those who actively recruit minority workers. Use these measures in calculating compensation. Periodically require diversity training for everyone in the company, to examine how assumptions evolve, how treatment of others can be inadvertent, and how behavior and perceptions based on stereotypes can be altered. Minorities often feel oppressed by the burden of dispelling unconscious assumptions and perceptions.

REVIEW AND REVISE

Ongoing minority tracking will help determine the success of company policies in retaining and promoting employees of color. Perform exit interviews of minority workers using minority interviewers. Provide the diversity committee with the results of those interviews. Review and revamp internal policies and practices that affect minority retention rates – methods for assigning work and clients, for example – to eliminate bias. Stylistically, smaller practice groups, centralization of assignments within the group, and rotation between groups work well with minorities, as do efforts to avoid "channeling" them into less advantageous jobs.

Require management training for all supervisors. Many issues that have a disproportionately negative effect on minorities stem from poor management. Review and revise policies to eliminate bias in performance evaluations. Educate managers on the most appropriate ways to measure performance, conduct effective appraisals and deliver feedback. Train employees in how to elicit and receive constructive feedback. Monitor evaluations to determine if there is a difference in the kind and number of comments about white employees and minority employees.

RECRUIT FAR AND WIDE

Broaden the pool of schools from which the company recruits. Institute mentoring programs at local schools and colleges to attract people of color to the business. Include minority managers as interviewers whenever possible. Provide active administrative and/or financial support to minority students and minority professional associations.

Hiring minority laterals can be an excellent way to build a critical mass of minorities in senior positions, just make sure those coming up through the ranks know that the company also intends to promote from within. When using executive search firms for senior hires, insist on having minorities on all candidate slates. Managers can also develop a network of potential hires by holding informational interviews. Encourage current minority employees to recruit for the company from their personal networks.

GOOD MENTOR HEALTH

Mentoring is widely acknowledged as a key element of keeping minorities in the fold. Implement a formal mentoring program, but select mentors carefully. The group should include powerful and influential executives, but exclude those whose personality or biases make them inappropriate as guides for junior minority workers. Training for mentors and mentees on what to expect and how to conduct the relationship will help the program take hold. Stress to mentors the importance of including mentees in social settings with clients, including dinners, golf outings, and in-office meetings. Establish specific goal-oriented plans jointly with mentors and mentees. Ensure that department heads and HR managers regularly check with minority mentees to learn their perspectives on their progress. Let them give feedback on which features of the program work and which could be improved.

Is Haggling Inherently Biased?

The last remaining bastion of the consumer haggle, buying a car, has a well-established reputation as a painful ordeal. Auto salesmen – mostly men – were long seen as sleazy purveyors of overloaded lemons on the unsuspecting. There were charges of bias. Women, among others, did not fare well in car purchasing.

No surprise, then, that auto sales – specifically auto loans – are at the heart of a class action case that asks whether haggling leads to discrimination. Financing subsidiaries of Nissan and General Motors stand accused of encouraging racial bias in auto lending. Whatever the facts and legal details of these particular disputes – the Nissan case, the first to go to trial, isn’t scheduled to start until next September – bias in negotiation is a thorny philosophical issue. Haggling is the essential principle of a free-market economy; fairness a central tenet of American democracy.

Auto loans through dealers work thus: the buyer’s credit information goes into a race-blind credit-scoring system. The finance company offers a base fee and interest rate. But the offer is not revealed directly to the buyer. The dealers get a cut of anything in excess of the finance company rate that he or she can negotiate.

This rewards dealers for exploiting customers. It also gives the salesmen (and, increasingly, women) enormous personal discretion in determining prices.

Unfortunately, salespersons are not blind to the attributes of race, gender and age in buyers, who are right there at the local dealership. Since credit issues are addressed in the blind scoring, the only basis on which the dealers would offer different rates are superficial criteria such as race, gender and age, or even more whimsical criteria, like hairstyle, or a resemblance to Uncle George.

Even if not motivated by bias, those are not generally considered appropriate criteria for setting prices.