Is It Discrimination, or Just a Failure to Communicate?

​One of the most famous lines in movie history comes from the 1967 picture "Cool Hand Luke." After the prison warden (played by Strother Martin) uses a club to strike a rebellious convict (played by Paul Newman), the warden looks at the other convicts on the chain gang and says, almost apologetically, "What we've got here is failure to communicate."

Failures to communicate happen frequently in the workplace. During my years investigating and defending discrimination claims, I encountered numerous situations in which, although alleged, a person's protected characteristic—age, sex, race, religion, etc.—was not, in my view, the reason for a terminated workplace relationship. Instead, it was a breakdown in communication and trust.

This is not surprising. If something goes awry between supervisor and employee, in my experience, the supervisor is not likely to deal with it directly and constructively. Nor does the supervisor handle disciplinary action from a "feedforward" framework or by having a "crossroads conversation." Instead, communication breaks down. Mistrust follows. The employee is left to speculate as to why things got so bad. In the absence of more direct communication, it's neither unpredictable nor unreasonable that the employee fills in the information void by concluding that hostility toward one of his or her protected characteristics caused the breakdown.

My view then and now: The overwhelming majority of discrimination claims would not happen if proper communication was maintained. Moreover, the problem often isn't simply at the manager or supervisor level. It extends to HR. When dealing with problematic situations where there are differences in age, race, gender and so forth, many HR professionals go into defense mode. They say to themselves, "Uh oh! This could result in a lawsuit. We'd better be careful."

The unfortunate result of such thinking is that instead of an intervention designed to help people resolve problematic relationships, HR starts to think from a legal perspective: "We have to protect the organization from liability. Let's bring in an attorney to do a formal investigation with findings and conclusions."

Paul Buchanan, an employment lawyer in Portland, Ore., who represents both employers and employees, noted that "employers who, out of fear of litigation, go into an overly defensive posture often end up making all decisions with their in-house or outside employment lawyer behind the cloak of the attorney-client privilege. Then, when the employer is challenged in litigation, they find that they have no non-privileged record of their decision-making. That, in itself, is likely to look sinister or at least suspicious to a plaintiff's lawyer, a judge or a jury." 

By trying to ward off litigation, Buchanan said, "Employers sometimes end up creating the monster they feared." He advised that employers avoid what he describes as the "circle the wagons, fear-based approach." Instead, he suggested that employers should "earnestly seek to understand the nature of the problem and to address and resolve any issues in a forthright manner." He added, "If you make good facts, and if your documents reveal that you were trying to get it right, then, if you find yourself in litigation, 'The truth sets you free.' "  

"Words mean everything," said Michael O'Brien, a Utah attorney who represents management. "When clients tell me an employee has complained about a possible hostile work environment, I recommend they find out more and especially whether the cause of the hostility is alleged to be based on race, sex or other legal protected classes. If protected classes are not the alleged reason for the hostility, there still may be a significant employee relations issue to sort out, but at least there may not be the threat of a legal claim hanging over everyone. This may open the door to tried-and-true HR solutions rather than to lawyers, investigations, etc."

This advice isn't to dismiss discrimination out of hand. During your investigation, do be mindful and aware of any signs of discrimination and act accordingly.

"Take the time to speak with the employee who has complained," recommended Colleen McManus, SHRM-SCP, a senior HR executive with the government of the state of Arizona. "Often, we can get to the root of any problem and, many times, even resolve it. Under the Americans with Disabilities Act, the employer has an obligation to interact with the employee with a disability to best understand the employee's concerns, questions and needs and, if possible, to provide reasonable accommodation. This type of approach can be very constructive with other types of concerns. 

"Remember that even if something doesn't rise to the level of unlawful discrimination or harassment based on a protected characteristic, there may be a management, training and/or communication issue that needs to be addressed. I try to look at these as opportunities for learning and trust building within the organization. If this more communicative and interactive approach is not possible or not effective, we can always seek legal involvement." 

Conclusion

As someone who has conducted many attorney-led workplace investigations, I'm not saying they have no place. However, I think the approach is often overused and overly formalistic. It focuses on minimizing legal risk rather than finding solutions to a problematic relationship—whether that solution is hitting the relationship reset button or initiating a respectful, dignified transition from employment.

When faced with a problem that has potential legal ramifications, the primary response should not be: "How do we protect the company?" Instead, it should be: "How do we resolve this situation in the most beneficial way for all parties involved?" The two questions don't contradict each other. In fact, by focusing first on the latter, you increase the likelihood of achieving the former.

As readers of my column know, when management and HR truly put humanity into HR compliance, everyone wins.