Canadian HR Reporter

CANADIAN HR REPORTER NOVEMBER 2018 INSIGHT 27 Sharone Bar-David GUeST COMMeNTaRY Defensive management in the age of #MeToo It's 2018. With help from human resources, managers need to carefully consider the new risks facing their personal standing, reputation and job security Ten years ago, I published a commentary piece in this magazine, titled "Defensive management in a bully-saturated era." In it, I suggested managers ought to add defence skills to their competencies tool kit. I cautioned that if they didn't, they might fi nd themselves — inadvertently and despite best intentions — on the re- ceiving end of harassment or bullying complaints. It's now 2018, and managers need to consider new risks facing their personal standing, reputation and even job security. And HR profes- sionals can and should do a better job to prepare, warn, support and equip managers with the neces- sary skills to help them avoid get- ting into trouble. Mostly, the new era requires managers to understand that sen- sitivity to diversity is growing, that gender is no longer a male-female dichotomy, that the #MeToo movement is sweeping through our culture and workplaces, and that the requirement for employ- ers to provide a psychologically safe workplace is a fact of life. As a coach to abrasive leaders and managers who require one- on-one sensitivity training, I en- counter fi rst-hand the devastating results that oblivious leaders can suff er when they fail to under- stand these risks and modify their conduct accordingly. A few examples: •A leader's upcoming promotion to regional manager is put on hold due to one sexually laden comment he allegedly made a decade earlier, which was nei- ther brought forth at the time nor substantiated at present. • A manager who prides herself on maintaining a family-like team culture gets into trouble for at- tempting to support an employ- ee who lost a family member to a long illness, telling the person "it was a good thing, even God's will" that the person had passed away. •A progressive leader faces tough questions after a recently hired visible minority employee re- signs abruptly, citing the cause as a "culturally unsafe workplace." •Another senior leader, who for decades had the habit of lightly touching his (male and female) employees while talking, almost loses his job when a young fe- male employee complains the touch is sexual. In all these cases, these highly intelligent, capable, experienced managers were stunned by the allegations, and embarrassed, hu- miliated and baffl ed by the serious ramifications they faced. They didn't know what had hit them. e good and bad On the positive side, this new era's heightened awareness is sure to curb the behaviour of managers who indeed engage in undesirable conduct. Conversely, well-mean- ing, yet out-of-touch managers might fi nd themselves in serious trouble. On the HR front, there is good and bad news. In all of the previ- ous examples, HR's sole role was that of the bad guy — the investi- gative, punitive force. HR had not been there for these managers in an educational, guiding role that could have prevented the unfor- tunate outcomes. e good news is that HR pro- fessionals can change course and become sought-after partners who help managers avert the risks facing them. For example, in the case of the "touchy" leader, pointing out to him several years earlier that touching is no longer an accept- able practice could have gone a long way. And the death-and-God manager rightfully lamented to me that training focused on ap- propriate boundaries could have saved her from making an igno- rant mistake. High-sensitivity situations Previously, I recommended that managers be über-careful in situ- ations that by their very nature might give rise to complaints. For example, instances where a manager has to closely scruti- nize an employee's poor perfor- mance as part of a performance management process are fraught with the risk of the manager be- ing perceived as discriminatory or harassing. Today, the new frontier fo- cuses on diversity, inclusion and respect issues. Managers should adapt their practices to include and honour the needs of those who are diff erent. ey should do so not only because it is the right thing to do; it is also because those who feel mistreated are, in today's landscape, more likely to launch complaints. Manager's survival kit HR should equip managers with the following advice: Show you're learning: Tell your team you're working to catch up with the times. Encour- age them to correct and teach you. is will help you grow. And it will serve you well in case of a complaint. Practise good hygiene: Dem- onstrate respect and professional- ism at all times. at means keep your conduct squeaky clean. No swearing, no friendly touching, no comments on new haircuts. Make "civility and inclusion" your motto: Avoid behaviours that could be construed as un- civil or excluding. Say "Hello" and "Good morning." Never roll your eyes. Treat team members equally. Understand your location: Your hierarchical authority means you are scrutinized close- ly by those with less power. Even seemingly insignifi cant actions could have an immense negative impact and trigger a complaint. Bring this simple reality into fo- cus, and act accordingly. Update your vocabular y: Educate yourself continuously on phrases and terminology refer- ring to minorities, disability and gender matters (and why they are important). Be prepared to stretch your language, right down to shifting pronouns from "he-she" to "they." Learn to apologize: You're human, you will make mistakes. A well-constructed apology will go a long way to mitigating your exposure. Start at hiring: Ask new hires what they need or want — and what you can do — to make the work environment psychologi- cally and culturally safe for them. Ask for help: When in doubt, always consult human resources. Our cultural ship is in the midst of a major course change. Wise managers should hop on board to ensure they remain safe and eff ective. Sharone Bar-David is president of Bar-David Consulting, a Toronto- based training and consulting fi rm specializing in workplace incivility and rehabilitating abrasive leaders. She can be reached at sharone@ sharonebardavid.com. Fitness requirements and age discrimination How can an employer evaluate older workers' abilities for safety-sensitive positions? Question: If an employer with certain physi- cal requirements for a safety-sensitive position is concerned about workers' abilities declining with age, how can it implement evaluations while avoiding age discrimination liability? Answer: An employee who is more advanced in age may have a case of discrimination if he expe- riences adverse eff ects as a result of being unable to meet physical fi tness requirements. Canadian human rights leg- islation generally prohibits dis- crimination on the basis of age. An employer should therefore be prepared to consider poten- tial measures to accommodate an employee who is unable to meet fi tness requirements. e duty to accommodate will only arise once grounds for ac- commodation are established. is puts the onus on the em- ployee to demonstrate a prima fa- cie case of discrimination — proof he suff ers from a disability or an- other prohibited ground, adverse treatment, and a connection be- tween the prohibited ground and the adverse treatment. Once established, the onus shifts to the employer to demon- strate the alleged discriminatory requirements were reasonable, taken in good faith, and he could not be accommodated without undue hardship. An employer's physical fi tness requirements will need to be spe- cifi cally based on the actual re- quirements of the job. If the em- ployer's requirements are based on the capabilities of the average 30-year-old, rather than the actual job requirements, an employer may be off side of human rights laws. e Saskatchewan Court of Ap- peal recently considered physical fi tness requirements in SGEU v. Saskatchewan (Environment). Although this case was heard in an arbitration, the takeaways from this case would apply both inside and outside the unionized workplace. SGEU involved a group of fi re- fi ghters referred as "Type 1" — required to meet rigorous fi tness standards in order to maintain their employment and perform their tasks safely and effi ciently. At issue was a fi tness test that used a "cut score" (a minimum time) within which prospective and existing employees had to complete a series of physical tests to qualify as a Type 1 fi refi ghter. e arbitrator concluded that the cut score was arbitrary and although the fi tness test was a rea- sonable work requirement, there was no evidence justifying the use of the cut score. e Court of Appeal agreed and cautioned that a timed fi tness test based upon physical attributes runs the risk of being prima facie discriminatory. us, a universally applied min- imum standard may be viewed as arbitrary unless the employer has clear evidence that individuals who fail to meet the minimum time cannot perform their work safely and effi ciently. Just as standardized tests in school can be ineff ective in deter- mining a student's true abilities, standardized physical fi tness tests can also be ineff ective in assessing an employee's true capabilities. A fi tness evaluation specifi cally tailored to the requirements of the position will therefore be easier to justify than a standardized one. For employees who cannot meet certain fitness require- ments, the employer will need to consider whether the employee can be accommodated. e employer will want to con- sider the employee's ability to con- tribute meaningfully to the work- place and business needs — the duty to accommodate does not require that the employer create an entirely new position. The content of accommoda- tion will ultimately depend on the specifi c workplace. However, common measures to facilitate participation in the workplace include the modifi cation or real- location of duties, a reduction in hours, or re-assignment. It is also important to bear in mind the employer's duty is one of reasonable accommodation — perfection is not the standard. Further, an employee has a shared duty to assist in the search for reasonable accommodation. See SGEU v. Saskatchewan (En- vironment), 2018 CarswellSask 303 (Sask. C.A.). Leah Schatz is a partner at MLT Aikins in Saskatoon. She can be reached at (306) 975-7144 or lschatz@mltaikins.com. HR professionals can change course and become sought-after partners who help managers avert the risks. Question: If an employer with certain physi- cal requirements for a safety-sensitive position is concerned about workers' abilities declining with age, how can it implement evaluations while avoiding Leah Schatz TOUgHeST HR QUeSTiON

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