Roman Ružbacký
June 10, 2016
The workplace has changed
Paul McCarthy once said that the workplace is like a moving chess board (cf. “Bullying Alive and Kicking”, The Weekend Australian, 16 July 2005).
Navigating your way through the complexities of any workplace can be a challenge even for the most resilient. More work, more change, more uncertainty, more competition, more administration, external pressures and an oversaturation of information (including emails) can lead to increased stress levels. Not to mention stress levels when stuck in traffic to and from work. It can take a lot of effort to switch off.
Findings from the Australian Institute’s Hard to Get a Break? survey and report (2013), showed an estimated 2.9 million people losing sleep because of work stress (and $110 billion in free labour). No wonder workplaces are rushing to get on board with resilience and mindfulness training. I recall recently sitting at a manager’s forum where a mindfulness expert took the packed room through some eye-closing, breathing and stretching exercises. I remember squinting at my laptop with one finger on the keyboard trying to finish that excel spreadsheet. I was multitasking with multiple deadlines. Guess mindfulness wasn’t my reality at the time.
Add another layer of complexity – the stuff that happens outside the workplace, usually beyond one’s control and usually not talked about at work. This may include family commitments, being a single parent, teenage dramas, financial strain, mental health issues, being subject to violence, going through trauma, drug, gambling, alcohol addiction, marriage breakdown, etc., etc., etc. (Queen to Bishop 6. Check.)
Add a final layer of complexity – the pressure to be a team player, your work colleagues having different values, belief systems, behaviours, communication styles, attitudes and varying degrees of empathy. The combination of these factors will no doubt, at some stage, lead to potential conflict, real or perceived. They can quickly snowball into unfair and unreasonable behaviours, actions or inactions that may constitute discrimination and/or bullying. It can often start off, or occur, in subtle and covert ways and in some instances be unintentional, but often come to a head in high pressure situations. (Bishop to King 7. Checkmate, I think.)
Having managed discrimination and sexual harassment complaints for some time, I have still not been able to profile the person being subject to bad behaviour or the perpetrator. One may be extroverted, introverted, popular, unpopular, outspoken or highly competent and still subject to discrimination, sexual harassment or bullying during their working life. It happens more than often when there is a power imbalance (not only one to one, but through a chain of command that is complicit or does nothing). It can also occur subordinate to peer. If left unchecked, negative experiences in the workplace can result in serious damage to an employee’s health and wellbeing and professional reputation.
That’s why it is important to be politically astute in the workplace and to have some smarts about you so as not to be a potential sitting duck. Having some knowledge and process can go a long way that allow you to read the agenda, draw clear boundaries to protect yourself and know enough about the law, your rights and responsibilities, and increasing your capacity to care for those around you. So get as much as you can from compliance based activities or demand more if you don’t have the skills to address the issues above.
And what has Paul McCarthy got to do with anything? Well, he is the first person to introduce the concept to me that good strategy reduces compliance. Good diversity and inclusion strategy should address systemic issues and reduce your compliance based activities. Unfortunately, when an organisation slips from a strategic role back into a compliance one they then return to a culture of being reactive and risk averse.
Compliance? Whose box are you ticking?
Does your organisation have a diversity and inclusion strategy? Does your organisation have a diversity specialist? Do they have the authority, autonomy and appropriate resources to implement change? Are they the right management level to implement change? Is your organisation’s diversity strategy evolving? Or has your diversity strategy been mothballed and replaced by compliance based activities? Is your organisation stuck in a world of risk minimising compliance based activities?
Equal Employment Opportunity training (usually on-line), EEO policy development and revision, Discrimination Contact Officer networks and managing discrimination and sexual harassment complaints are essential compliance based activities that help educate, prevent and address discrimination, sexual harassment and victimisation. The organisation is vicariously liable for the actions of its employees (in the course of their employment) unless it can show that it has taken reasonable precautions to prevent unlawful discrimination or harassment. This means having appropriate policies and procedures in place, employees agreeing to comply with these policies, providing training and instruction on how to comply, monitoring the workplace to ensure compliance and ensuring that complaints are responded to appropriately. Employers and employees need to understand their rights and responsibilities in relation to discrimination and sexual harassment and compliance based activities ticks all the boxes, but whose boxes?
Compliance based activities (on their own) are a shallow strategy. These activities are often seen by employees as a tick the box exercise that ultimately protects the employer. Some may believe that the organisation is conducting EEO training to minimise its risk or to meet its minimum legislative requirement. Employees may be reluctant to engage in compliance activities and it’s usually the people who need to be there that don’t show.
If you’re going down compliance road, then teach us something useful!
An effective way for organisations to engage its employees in training (and teach them something useful) is to design a face-to-face training program that gives managers and employees practical skills to apply knowledge and process gained from the training room into their own work environment and context. This involves skilling up employees to be able to articulate the subtleties and giving them the clear language to do so. Putting a name to it. Calling it out. This also involves skilling up employees to challenge subtle, covert and inappropriate behaviours, stereo-typical attitudes, dominant cliques or systemic discrimination. This also involves increasing the manager’s competency (cultural, gender, disability), to consider the different lenses one looks through when resolving complex issues, to avoid racially blind or gender blind practices. This means testing the gap between ‘rhetoric and reality’ and ‘policy and practice’.
Employees need be confident in raising concerns, without fear, and develop the skills to leverage effective positive change whilst not fracturing the relationship (maintaining professional and harmonious working relationships). Complaints can be good things. They highlight a need for change or improvement. They target the behaviour that needs to change. Effective training and practice can sharpen an employee’s skill in detecting issues early, giving them the ability to chase it down and act swiftly. Often, a complaint is lodged too late in the piece which results in an exhaustive complaints process with harmful effects on the complainant and respondent and professional relationships most likely being fractured.
Employees need to walk away from training with a clear understanding of what constitutes unlawful discrimination, bullying, harassment and victimisation – how to identify it, how to define it, how to articulate it, how to eliminate and prevent it, how not to engage in it, how to challenge it, how to map out potential risks, how to use the policies and processes strategically and effectively; how to protect themselves, how to manage good working relationships and how to inspire positive change. Employees also need to understand that such conduct is against the law and that they, as well as the employer, may be held liable. Organisations have an increased responsibility to ensure that their managers, supervisors and team leaders receive adequate training, as recent case law shows.
The NSW Administrative Decisions Tribunal Appeal panel dismissed an appeal by a KFC franchise against findings of vicarious liability for sexual harassment (Sharma v QSR Pty Ltd d/as KFC Punchbowl [2010]). KFC Punchbowl led evidence that it had a policy in place and trained its employees about sexual harassment. However, the Tribunal held the fact that the Assistant Manager was able to make sexual comments and engage in sexual harassment openly in the store, demonstrated that KFC Punchbowl had implicitly authorised the conduct. The employer has not taken all reasonable steps to prevent the conduct as the training and the monitoring of employee compliance with policies at management level were insufficient to detect the conduct. Ms Sharma was awarded damages of $15,000.
The training and/or trainer also needs to take into consideration the employer’s context, culture, challenges, constraints and environments which are often layered with complexity. What is really going to work if I have a complex issue I need to deal with? Interpretation of policy and application of procedures requires strategic thinking and solutions that are tailored for the individual and their environment. The training should provide an opportunity to learn and utilize practical skills to unpack complex issues and gain knowledge and process in addressing discrimination, sexual harassment and bullying. Bearing in mind that one driving lesson does not make once a competent driver.
What your EEO face-to-face training might look like?
In a previous life I developed, in collaboration with another highly skilled employment and discrimination lawyer and facilitator, an interactive face-to-face EEO and diversity awareness training program for managers, team leaders and supervisors. This training program offered participants practical strategies to address discrimination, harassment and bullying and armed them with knowledge and process that allowed them to navigate and manage their way through complex issues and complaints.
A pre-requisite to the face-to-face training was a basic EEO on-line training module (but not essential). This second tier of training allowed for more in-depth discussion around at a pace that allowed reflection, consultation and self-determination, exploring as many ‘grey’ areas as possible and considering the manager’s workplace context. Training focussed relevant Equal Opportunity legislation including the Fair Work Act (reverse onus of proof), discrimination, sexual harassment (including reverse onus of proof), roles and responsibilities of managers and non-managers, policies and procedures; but more importantly, how to act on policy, effective intervention and prevention strategies, procedural fairness, confidentiality, natural justice, practical complaints handling strategies and support mechanisms available to all employees.
An interactive program included managers working together in small groups to address 25 quiz questions of various complexity and ambiguity. Under the guidance of the facilitators, the managers were asked to provide reasoning as to why they answered a question in a certain way (yes, no or don’t know), discuss this with the participants and provide solutions using their current knowledge and skills base.
Here are some sample questions:
- Sexual harassment is any unwelcome sexual behaviour which could be expected to make someone feel offended, humiliated or intimidated, if a reasonable person looking back at and knowing all the circumstances, would think that a possible result.
- Genuine compliments, social invitations or a man holding the door open for a woman are examples of sexual harassment.
- My manager has told me she has received an anonymous complaint about my behaviour but won’t give me details, yet is interviewing all my staff. This is a breach of natural justice.
- A group of students in a tutorial is discussing a group assignment in a different language. You ask them if they would speak English so that you can join in the conversation. This is racial discrimination.
- If disability is disclosed at the time of the performance review as the reason for not meeting agreed performance targets, the supervisor must allow for this in assessing the staff member’s performance, otherwise it is discrimination.
- If variations in standard work arrangements are made for a team member because of a disability or family responsibilities, the rest of the team deserves an explanation to avoid resentment or discontent.
The facilitators guided participants through the questions, providing their legal and practical expertise, resulting in a clearer understanding of the legal as well as ethical framework and greater confidence in proactively managing issues. The clear message at training was, “Doing nothing is not an option”. It was a highly interactive session that aimed to get all participants enthusiastic about making the workplace safe and happy.
The bigger picture
Compliance based activities should be part of a bigger diversity and inclusion picture that considers the legal, business and social responsibility case. However, if compliance is your only ‘stick’ in your organisation, you’re going to have to be a little creative. You can always imbed your diversity strategy into your compliance activities. I hope I have ticked your boxes!