Think a Second Time About Discrimination in the Workplace

All responsible tribal employers take unlawful discrimination seriously by defining those characteristics which will not be utilized in making workplace decisions.  Those things are almost always defined as race, religion, national origin, gender, age, disability, sexual orientation, pregnancy, marital status, political affiliation, veteran status, military leave and other categories.  Once defined, responsible employers enforce the policies necessary to send a clear message that discrimination will not be tolerated.  The question is whether this is enough to be fair?

Said another way, when employers clearly define those characteristics which will not be used in employment decisions, are those employers doing enough to eradicate discrimination from the workplace?

Here are the arguments which sell the idea that employers need to do more.

Some employers work hard at following a strict regimen of interview questions to avoid inquiring into those areas which may generate answers which reveal a candidate’s protected status.  For instance, those employers do not ask about a candidate’s age, pending child bearing activities or disability.  However, those same employers surf social media sites where the hiring employer learns about the candidate’s religious practices, number of children and sexual preferences.  In a recent study, Carnegie Mellon University created dummy resumes and social media sites and submitted the dummy resumes to employers seeking employees.  The University study found that up to a third of employers surfing the net to gather information and unfortunately the information gathered was used to discriminate.  It is difficult to square the careful screening of permitted interview questions to avoid discrimination with the internet investigation of prospective employees.  The use of social media to gather information about prospective employees is not illegal, but the gathered information may be used in an unlawful way.

Some employers follow the letter of the law in the hiring process but turn a blind eye to obvious violations of those rules once the employee has been welcomed (or not) into the workforce.  In my experience, human resources has a more active role in the hiring process which increases the scrutiny regarding best practices.  However, once the employee is hired, human resources is not engaged until after there is a problem.  An increase in the frequency of training, human resources audits, and other tools can raise awareness regarding the importance of practicing under the zero tolerance rule regarding workplace discrimination.

Some employers buy into the antiquated idea that there are jobs better suited for men and other jobs better suited for women.  We must concede that women are better suited to model wedding dresses but for most jobs gender is not relevant.  Look around your tribal office or your casino and consider the role gender may be playing.  Has the receptionist position always been filled by a woman?  Are there a disproportionate number of men on the police force and serving in the department of natural resources?  Over at the gaming enterprise, are there any female slot technicians?  I am not arguing that by simply counting heads and comparing the numbers of female and male employees that there is evidence of discrimination.  Instead, I am asking you to consider the possibility that you are contributing to the idea that some jobs are better suited to one gender or the other.

Even if you have sifted out all of the supervisors which overtly buy into the idea that certain jobs should be filled by men or women, what about our hidden biases?  In the book Blindspot: Hidden Biases of Good People (Delacorte 2013) the authors argue that the brain contains an unconscious warehouse full of associations between certain people and personal characteristics which cause us to misidentify applicants for employment.  The authors call these mindbugs and these bugs are at the intersection of hidden bias.  For example, when you think about a mental image of a surgeon (stop and think about a surgeon) is your mental image a male?  The authors of Blindspot argue that for most of us our mental image of a surgeon is male because that is our brain expressing one of those unconscious associations.  That mental image may have no effect if the candidates for a job are both men, but if we have a man and a woman with similar resumes, will our blindspot be the tie breaker as the authors believe?  What other blind spots do we share when considering race, religion, gender, sexual orientation, age and many other protected classes?

Familiarity breeds contempt.  Sometimes tribal employers know too much about the candidates seeking a second or third opportunity to perform in the workplace.  As a manager hiring for an open position, you will encounter a candidate who has previously worked for the tribe, but you may not have access to the old personnel file.  Sometimes, instead of relying on the employee’s previous work experience with the tribe, the manager buys into the rumors regarding the previous employee and those rumors may, or may not, be accurate.  If the negative rumors are not accurate or do not provide a fair and balanced perspective, the previous employee may never get a second or third chance to serve the tribe.

Some employers with strong discrimination policies do not do enough to protect employees from retaliation when an allegation of discrimination is raised in the workplace.  An allegation of discrimination against a colleague or against management can create strong personal feelings.  And when those strong personal reactions are held by tribal council or the management team at the gaming enterprise, hurt feelings disguise what may be discrimination.  The presence of retaliation in discrimination cases increases the likelihood of more discrimination.  This is exactly backwards.

Some tribal employers are confused that the exercise of Indian or tribe-specific preference preference is a form of discrimination.  Tribe specific preference is, in my view, a lawful choice to leverage the talent within the tribe by giving tribal members the first opportunity to fill a job opening.  Some misinformed individuals argue that preference is a form of unlawful discrimination but the courts almost always disagree.  Check your preference policy to determine if you contribute to this confusion.  In many tribal nondiscrimination policies there is a tacit consent to the argument that preference is another form of discrimination.  Those policies read:

Except for the use of tribal preference, the ABC Tribe does not discriminate on the basis of race, religion, national origin…………..

Consider editing the first phrase of the policy to remove any concession to the idea that preference unlawfully discriminates:

The ABC Tribe does not discriminate on the basis of race, religion, national origin………

Some managers are more tolerant of some discrimination than other discrimination.  For example, managers may recognize that discriminating against a disabled candidate obviously violates the employer’s rules, but at the same time the manager may be more tolerant of refusing to hire candidates from different countries because of the notion that those people are “stealing our jobs.”  Employers need to send a clear message to managers that all unlawful discrimination is obnoxious and will not be tolerated.

Recommendation:  Clearly define unlawful discrimination within your workplace, engage everyone in meaningful training, enforce the policy across the board and challenge yourself to do more.  Look at each of the arguments set forth above and determine where you can eradicate the overt and subtle discriminatory conduct in the workplace.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.