By any other name Benevolent discrimination is still discrimination

By any other name

Benevolent discrimination is still discrimination

by Stanton Law LLC

Start with diversity training

The co-authors noted that diversity training with emphasis on helping employees work together more effectively and fostering dialogue is a good place to start.

But asking employees to sign a pledge or directing employees to meet with a person of another race to discuss racism, while well intentioned, could be going too far. While the employer’s efforts might be considered unbiased and progressive, the latter instances could violate antidiscrimination law, the attorneys stated.

Even the most well-meaning statement or policy won’t satisfy all constituents. Ultimately an employer’s active involvement could add unnecessary complication to an already delicate situation while also running afoul of discrimination laws.

Amid the on-going national and local

headlines about protests, social injustice and police reform, employers have grappled with whether to make public statements or otherwise take action. Consider internal as well as external ramifications before taking any stand, making a statement or encouraging employee action, wrote Todd Stanton and Amanda Farahany of Barrett & Farahany in a July 10 Fulton County Daily Report article.

Even the most well-meaning statement or policy won’t satisfy all constituents. Ultimately an employer’s active involvement could add unnecessary complication to an already delicate situation while also running afoul of discrimination laws. “Encouraging employees to be mindful of racism is fair game, but requiring specific action based on race is problematic,” Farahany and Stanton wrote.

Focus on things you can control

The co-authors encourage employers to focus their efforts in areas over which they have some control. 4

First, eliminate explicit race-based directives from any message and instead, prioritize equality, the ultimate goal of Title VII of the Civil Rights Act. Know that while you

may feel a moral obligation to start an internal conversation, you have

no legal obligation to do so. Keep any conversations uplifting and not too specific, while abiding by employment laws, the coauthors noted.

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Discuss the company’s and leader’s actions to maintain a positive work environment and demonstrate the company’s commitment through equitable employment practices. Finally, consider involving your attorney in the review process of any new policies, internal or external statements.

Rally employees with positive activities

Supporting positive activities and causes can be effective means of rallying the company and employees, Farahany and Stanton noted. Matching employee contributions to predetermined charities and volunteering in under-served communities are positive actions that are far less likely to have a polarizing effect.

Consider and engage with the employee’s perspective

The attorneys acknowledge that in today’s climate making a donation can be perceived as a political statement. While the importance of an open dialog with employees should not be discounted, expressing support for employees does not obligate the Company to engage with outside causes. Employers should help employees understand that the absence of monetary support for a specific organization doesn’t equate to ambivalence about current cultural issues. “You can still be 100% against racism and not contribute to BLM, or propolice and not contribute to a PBA,” Farahany and Stanton noted.

The attorneys agreed that employers should help employees to realize if they feel discriminated against, it is their right and responsibility to report it immediately. Then, as the employer, it’s your obligation to listen and react accordingly. On the one hand, it is unrealistic to think you can keep the topic of social injustice out of the office, on the other, “if you want to make a statement or implement a new policy or program, consult your attorney and consider all ramifications before moving forward,” Farahany and Stanton advised.

You can read the entire article on the Fulton County Daily Report website (subscription required). stantonlawllc.com/benevolent-discrimination-is-stilldiscrimination-2/

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