Monday, January 9, 2012

The Don't Sue Me Stuff: The other Isms -- Race, Age, Religion

When you become a manager, it isn't terribly often that someone sits down and carefully explains all the liability and responsibility you've accepted in so doing. A lot of the time they assume you just know (especially if you've managed people before).

This series of articles isn't about everything that could possibly happen, and it's not legal advice in ANY way. It's just sort of a heads up about what you may have gotten yourself into.

Today's Topic: Isms - Race, Gender, Age, Religion

What happens when an employee tells you that he thinks the person you're considering to hire is too young and immature for the position? What about trying to hire for a 3 year gig and someone who is 64 years and totally qualified applies? What do you do when people start making stereotypical statements along race lines--such as the fact that white men have no athletic ability? Or folks assume the Jewish descendent in your team is better at math? What if you have folks who won't go to team lunches because their religion prohibits the consumption of most meat products? What if you have someone who is a die hard vegan spouting things like "murder" whenever one of your other team members takes a bite of a hamburger? What do you do when you have a strict observing Atheist and a strict observing alternative religion and the two conflict (ie: how do you react walking into the office to find the atheist explaining there is no god and that religion is a myth for clueless people to a person whose face is already purple because he is a devout follower of a religion)? How do you handle religious holidays both observed by your company and those that are not?

In previous blogs regarding not being sued, we've covered sexual harassment, gender issues, disability and medical issues. Often gender issues also fall under the "isms" section, but since they've had a place of honor already, we're just going to cover three other really big topics of potential doom and destruction in the workplace: Race, Age, and Religion.

Per, Ageism is a noun defined as 1) discrimination against persons of a certain age group and 2) a tendency to regard older persons as debilitated, unworthy of attention, or unsuitable for employment.

I have been guilty, in the past, of walking out of an interview to talk to my boss and other teammates and saying, "He's pretty young." What I meant was "He's pretty green and lacks experience." The first statement could be used to sue me for not hiring the individual. The second is A-Okay. My boss quickly schooled me in such things, and so I give you the benefit of his wisdom here today: don't mention age or maturity in an assessment of personal growth regarding anyone. Not in reviews, not in interviews, and not in jokes.

You can say that someone's coding skills are immature, but you can't say their interpersonal skills are immature. Well, you can, but you should avoid it because that's shaky ground. Obviously it depends on where you work (state, county, country, etc.), but the safest route is to avoid discussion of age or age related ability completely. This also means you cannot ask about age in reviews, interviews, daily conversation. You can ask about experience, however. So, for example, "Johnny, were you alive when the Beatles were big?" is out of bounds, but "Johnny, when did you start project managing and what methodology did you use?" is okay.

This also means, as you may have picked up from my previous Don't Sue Me articles, that you need to watch the rest of the team. No jokes about whether or not the new guy is able to shave yet, for example. Also, no "grandpa" jokes or remarks about the Civil War being in operation during the youth of anyone. And yes, I've been there and had to stamp down on these and many, many more. When teams get cozy and comfortable with each other, they tease. Some teasing is fine and endearing and team building; some is sue-worthy and can actually break up the team building vibe they're trying to put out. Remember, hostile work environments are what people judge them to be, and that judgement can occur well after an innocent-seeming remark. Best to talk to the entire team and put some things off the table in terms of discussion.

This also addresses my concept above about a three year gig for a 64-year-old. What if it's a full time job and the 64-year-old is competing against people in their thirties and forties? A natural tendency is to look at the older person and wonder how long they'll stay in the work force, or how healthy they'll remain during their tenure with you, compared to the other folks going after the same job. 65 is a standard retirement date (though typically not mandatory in the US). As you remember from the medical and disability discussion, you're also not allowed to ask them about their health issues unless they are obviously affecting the actual interview itself, right in front of you.

What you need to do, is compare potential new employees (and existing ones going for specific promotions or transfers to other projects or what-have-you) on an even basis, devoid of concern for race, religion, age, and gender. Which is easier to say than to do, given that even, today, people trying to do that (myself included) often have prejudices built into their evaluation system based on life experience.

To counter those prejudices, it's best to look at things in a strictly pro/con fashion. Review the pros and cons for things that are illegal to discriminate on, and then cross those off.

Note that you can review a person on their expected length of service if you don't base it on age. For example, I worked with a wonderful development lead who tended to work until he had a nice nest egg, then take off a year to do his other passions. I totally respect that and would love to do it myself, but it seriously affected long term planning when considering having him on my team. Paradoxically, just because someone is of retirement age doesn't mean they'll cut and run as soon as they hit 65--a lot of folks get a lot out of working (I define a considerably amount of my self worth by my work, which, if you're following along at home, is not necessarily the healthiest thing), and given recent downturns in the economy, might not be in a position to stop working and take a vacation, let alone retire (as someone much younger might be able to do with help from family or the fact that they have a long work life expected in front of them).

I'd also say that you should note that, while it's illegal to discriminate on age--too young or too old, or whatever--people who are not you, will do so. I don't just mean in your organization, either. Older technology specialists I've talked to have explained that when you start showing twenty or more years of experience, suddenly it's not the benefit it once sometimes seems to affect their ability to get a new gig. From personal experience, I have the pleasure of having looked quite young for my years for several years--as a result, people who didn't see my resume until the interview with me (which is a lot of people, because most people aren't eager to quit their current deadlines and read a document about a person who does not yet work at their company), would assume I didn't have the qualifications for the job because I looked so young...and made the mistake of telling me so. Fortunately for them, I'm not a sue-happy kind of girl. I am happy, however, to point to multiple lines in my resume to get them on board and back on topic with why I'm there.

I mention the prejudice of other groups outside your own because ageism is the kind of ism that, while bad if you practice it, can be good if you don't (you know, besides the "not being sued" thing); you get loyal employees who work hard for you if you are blind to things that other people haven't been.

For example, I hired a lovely Chinese lady when I was in my early twenties to work for me in Quality Assurance; she'd had a devil of time, even in a record-low employment rate, getting people to even meet her in person. She had a heavy thick accent that made her hard to understand, and her English construction was non-standard. Her resume, however, rocked my socks. I hired her, and we worked out a system of repeating what we'd heard from the other--which the rest of the team picked up immediately--and she was one of my finest, most tenacious and brilliant testers. She came in extra hours for me, and I bought her a lot of thank you gifts and tried to get her time off for those extra hours. It was synergy. Because I gave her a chance where other people had been prejudiced. This leads nicely into the next section on Racism, which is what she was experiencing.

Racism is defined by as 1) a belief or doctrine that inherent differences among the various human races determine cultural or individual achievement, usually involving the idea that one's own race is superior and has the right to rule others. 2) a policy, system of government, etc., based upon or fostering such a doctrine; discrimination. 3) hatred or intolerance of another race or other races.

In my example above, the lady I employed was being discriminated against; most people said it was because to do the job of quality assurance she needed clear communication skills. However, after talking to her for ten minutes, it was clear she had them. I have no proof if they were discriminating based on her accent, but it sure seemed like that was the issue; and that's discrimination based on racism.

It is illegal to deny a position, promotion, perk, etc. to someone based on race and/or(and most of the time) on culture. To do so leaves you open to a law suit as well as the company you represent. You can disqualify someone based on the fact that they have poor communication skills, but you need to have specific examples. For example, in one interview, I asked the same question four times of the applicant who never actually answered it once. That was a clear example of communication issues.

It seems unlikely today that if you are reading this blog, you probably aren't going to prevent someone from having a job or promotion or perk because of the color of their skin or the original nationalization of their ancestors. I like to think folks who read this blog are more enlightened. But to clarify: yep, that's illegal.

What's more likely to happen is among the team (and you may fall prey to this yourself). Calling out positive traits associated with race can be construed as racism to those not of that race, or, could even offend those of that race. So, teasing a white person on the team for not being athletic, praising a black person on the team for being an excellent basketball player, and/or assuming a person of Jewish descent is good at math, WITHOUT CORROBORATION NOTED BY YOURSELF OR SOMEONE PRESENT, is racism.

So, if you saw that white person attempt to play baseball and whiff every swing, trip on the way back to the dugout, and generally have trouble putting on their shoes, its tacky to tease them about it, but not racism (as long as you aren't generalizing to all white guys). If you saw the black person on the team play tackle football and lead their team to success, its okay to say they're good at football, but not to generalize to all sports (as that could be construed as racism). Finally, it's never okay to assume that just because someone has a particular nationality in their background that they will be good at anything--so even if the guy of Jewish descent always manages the math for the group lunches, you can't attribute that to his Jewish heritage; you can, however, say that he is personally a math wiz and that you find that awesome.

Religious Discrimination
(okay, not actually an ism, but go with me here)
Religious Discrimination is defined by Wikipedia: valuing or treating a person or group differently because of what they do or do not believe. It then goes on to talk about religious persecution, et all. The gist: religious discrimination is discriminating based on the religious beliefs of an individual or group of individuals.

So, in my above examples, picking only restaurants that mainly serve meat for group lunches could be construed as being religiously discriminatory to folks whose religion prevents the consumption of meat. Also looking at my example above, this does not include people who opt not to eat meat because of reasons other than religion. I worked with an otherwise very nice person who was happy to repeat, as each team member took a bite of meat, that they were contributing to murder on a large scale. While totally uncool, making the only team options primarily meat or burger places is not discriminatory, as she based her dislike of meat on grounds other than religious.

In that particular case, the team spoke with her about not liking to be called murderers. Their concession was to allow her to pick future restaurants for team lunches, so long as the restaurants catered to her needs and those of the folks who did not eat meat and provided some meat options for the rest of the team. We, as a team, ate a lot of pasta, but no one was discriminated against and we were able to move forward, together, as a team.

Having more than one team member (yourself included) can also mean that you may encounter a team with multiple religious practices or beliefs (or none at all). Having managed a team with a die hard atheist, self-proclaimed pagan, two Muslims, and the rest claiming to be "agnostic" but still expecting presents on Christmas, a discussion had to be had to avoid anyone discriminating against anyone. It was a team meeting where we discussed tolerance and no one was asked to talk about their religious beliefs, but were instead asked to discuss how best to be tolerant of everyone's beliefs. The team worked out the rules: people saying "Merry Christmas" were not being disrespectful and that was okay, as was Happy Holidays, or Happy Winter Holidays. No overt religious symbology of any sort was used in the team group areas (we had to all agree on a holiday tree, but no angels, for example). When we were done everyone was allowed to discuss things with me as the team manager, or my direct supervisor, if they were uncomfortable. No one took me up on it and we settled into a very tolerant process that lasted for the entire project.

Note, just because you cannot discriminate on religion doesn't mean you cannot show an interest, which was a tacit part of our tolerance discussion. So, if someone really wanted to know why the atheist was an atheist and they instigated the discussion by asking, the atheist was free to express his beliefs in a polite manner. Likewise, when one of the folks asked us about Christmas celebrations and why the tree, etc. people were allowed to answer back. The important part, to avoid a discrimination issue in the future, was that everyone had to be very polite, and, for security, typically asked at least one more person to be part of the conversation; like sexual harassment, its always possible to realize later you were offended by something religiously discriminating and the team agreed that having an impartial person present for each of these discussions met their needs to keep discussion open an alive, but reduce the chance of misunderstandings and lawsuits.

Finally, your company probably has specific days off around traditional country holidays--Thanksgiving, near Christmas, etc. Also, you may have employees that celebrate other holidays, like the Holiday of Lights, which may not specifically have days reserved on the company calendar. When in doubt, talk to your HR person about what to do. Typically they're going to suggest allowing that holiday observance off for your employee, though they may ask to trade a holiday day from one of the other observed holidays for that time. But, each case is unique, and your Human Resources department will know what's specific to your company policy.

So there you have it: racism, ageism and religious discrimination(ism). Typically you think you know what these are, but I hope I've provided some examples that might sneak up on you. As always, when in doubt talk to your boss and the human resources department, but the general rule of thumb to walk away with is not to discriminate against anyone for any reason other than actual hard, facts to which you can point.

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