News & Insights

DiscriminationAugust 14, 2020by Stanton LawBenevolent Discrimination is Still Discrimination

Amid 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, it could make a touchy situation worse while also running afoul of discrimination laws, they warned.

Start with diversity training

The co-authors noted that diversity training focused on helping employees work together more effectively and fostering dialogue is a good 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 anti-discrimination law, the attorneys stated. “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

Instead, focus on areas over which you have some control, the attorneys stated. Eliminate color from any message and discuss equality, the ultimate goal of Title VII of the Civil Rights Act. Keep any conversations uplifting and not too specific, while abiding by employment laws, the co-authors noted. Discuss the company’s and leader’s actions to maintain a positive work environment and demonstrate commitment through equitable employment practices.

Positive activities rally employees

Positive activities and causes are ways to rally the company and employees, Farahany and Stanton noted. Matching employee contributions to predetermined charities and volunteering in under-served communities are positive and unlikely to have a polarizing effect.

When you make a donation in today’s climate, the perception is that you’re making a political statement, the co-authors noted. 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 pro-police and not contribute to a PBA,” Farahany and Stanton noted.

Help employees to realize if they feel discriminated against, it is their right and responsibility to report it immediately, stated the co-authors. Then, as the employer, it’s your obligation to listen and react accordingly.

In today’s climate, it’s impossible to keep the topic of social injustice out of the office. “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).