As we approach the midpoint of 2020 amid an essential national focus on racial and social justice while continuing to navigate the COVID-19 pandemic, HR departments are front and center in talent management during these challenging times.
The U.S. Equal Employment Opportunity Commission (EEOC) issued a resolution June 9 to condemn "the senseless deaths of George Floyd, Breonna Taylor, Ahmaud Arbery and countless others." The agency will "redouble" its "efforts to address institutionalized racism, advance justice and foster equality of opportunity in the workplace," according to the resolution. The EEOC enforces Title VII of The Civil Rights Act of 1964, which makes it illegal for employers to discriminate based on several protected classes, including race and gender.
HR leaders have the task of complying with Title VII, and, at the same time, must also protect the company. As the Talent Strategy Group put it in a recent report: "HR is a function at odds with itself."
So what can an HR leader do if they find themselves subjected to retaliation for opposing discrimination? And what about push back when it comes to diversity and inclusion (D&I)? Chandra C. Davis, a co-founding partner of The Employment Law Solution based in Atlanta, who previously served at the EEOC, provided insight on a complex situation.
Understanding the manager rule
There are some situations in which an HR professional may not have the same rights as other employees, Davis explained.
"In some employment contexts, such as cases involving the Fair Labor Standards Act, courts have barred retaliation claims based on the application of the 'manager rule,' which states that managers will not be viewed as having engaged in legally protected conduct if they disagree with or oppose the actions of an employer in the course of their normal job responsibilities."
And while some early rulings applied this rule to HR managers in retaliation cases brought under anti-discrimination laws, courts are increasingly declining to do so, Davis said. For example, a federal district court in 2017 refused to dismiss an HR manager's retaliation claim, saying a jury should decide whether she was fired for opposing alleged race discrimination. The manager claimed she was instructed to hire only white employees and to fire a Black employee because of his race; when she refused, the employer allegedly eliminated its HR department, which consisted of the plaintiff and one other employee. The parties ultimately settled the claim.
"What this means is that HR professionals will not be automatically excluded from anti-retaliation protections simply because there is some overlap with their official duties and the potentially protected conduct," Davis explained.
There could also be state laws with whistleblower statutes that may provide additional protections, Davis noted.
D&I professionals in conflict with leadership
Opposition to violations of federal law may be somewhat clear cut, especially when compared to D&I advocacy. HR pros tasked with advancing D&I goals have only a few options when leadership isn't on board.
Twitter users recently witnessed an example of such a conflict when Jerry Falwell Jr., president of Liberty University in Lynchburg, Virginia, posted an image May 27 of a face mask showing figures in blackface and dressed as a Klansman. The mask bears an image that originally appeared on Virginia Gov. Ralph Northam's medical school yearbook page. "I was adamantly opposed to the mandate from @GovernorVA requiring citizens to wear face masks until I decided to design my own," Falwell wrote, according to Religion News Service.
Falwell apologized on Twitter June 8 and deleted his original tweet. He said that after listening to Black leaders at the university, "I understand that by tweeting an image to remind all of the governor's racist past, I actually refreshed the trauma that image had caused and offended some by using the image to make a political point."
After Falwell's tweets, LeeQuan McLaurin, director of diversity retention at Liberty's Office of Equity and Inclusion, submitted his resignation, leaving the university effective July 2.
"My decision to resign from my position lies in conflict of my job description, and basic expectations as a higher education diversity professional, and the reality of inaction and suppression of tangible support for our minority student populations," McLaurin said in a letter he posted on Twitter June 9. He and several other Black employees decided to resign following several years of alleged "racial trauma," according to local news reports.
When a D&I professional feels at odds with company leadership over diversity, equity and inclusion, they "should draft a letter to leadership articulating how its decisions or business practices have contradicted the mission or goals of the company," Davis recommended.
"The letter should also include an explanation about how the company is prohibiting the D&I leader from doing their job of creating a more diverse environment for all," she explained. "It would also be helpful if the letter included examples of what business practices are not beneficial to curating a diverse environment."
The goal, Davis said, is to challenge leadership and give them the opportunity to rectify issues prior to any decision about leaving the company.
If the decision is to ultimately resign, a D&I professional should give the employer a chance to address the issue, have an exit interview to give constructive feedback and recommend possible replacements, Davis said. "If the company is as committed to diversity and inclusion as stated in their goals as well as the mission statement, then it would be advantageous to implement the recommendations," she said.
But with the proper support of an organization's leadership, HR and D&I leaders have the opportunity to help shape company culture, making a huge difference in the lives of employees, especially during difficult times.