Canadian HR Reporter - Ontario

CANADIAN HR REPORTER September 4, 2017 INSIGHT 31 David Creelman Guest Commentary Colin Gibson Toughest HR Question How to avoid Google's diversity debacle Memo controversy not just about HR – but HR has important role to play It's hard for me to find the words to convey how important and heart-wrenching the Google diversity memo crisis is. I hope you'll take time to grapple with this is- sue because to get it wrong will hurt us all. If you "missed the memo," essen- tially, a Google employee wrote a letter in August that was critical of the company's diversity policy and was fired as a result. e best way to make sense of this emotional issue is to work from the assumption that two things are simultaneously true: 1. A worker violated the company's diversity policy and was fired. 2. An employee expressed a dis- senting opinion and was fired. People tend to agree, fervently, with either point one or point two, but the crisis exists because both are true at the same time. No mat- ter how much you believe point one, that doesn't erase point two. No matter how passionate you are about point two, you have to grap- ple with the truth of point one. Having fired someone for ex- pressing dissent (point one not- withstanding), Google has done severe damage to its reputation and to the relationship between genders. Its working environment has even been called a Goolag (a reference to the "gulag" prisons for Soviet dissenters). Of course, if Google had ignored the issue, it would have faced similarly dire outcomes. Since HR's job is to help an or- ganization prevent dire outcomes, it needs to get past the headlines. When we see "Engineer writes anti-diversity screed claiming women genetically inferior," we don't want to read any further — we know the right (and righteous) answer. e trouble is that the situation is more ambiguous than the headline implies, and we need to apply our best, dispassionate reasoning, to find the right course of action. What is the right course of action? I won't take a side given that both points are simultaneously true. What I will suggest is if Google had approached the issue with some subtlety, rather than trying to make one side or the oth- er wrong, it would have avoided such a disastrous outcome. It, and we, need to approach such situations as learning op- portunities that will bring people closer together, rather than op- portunities for one side to oblit- erate the other. In this specific case, we have an excellent employee (he got a "Su- perb Rating," the highest possible level, and one can just imagine how skilled someone must be to stand out as superb at Google) with no history of causing trou- ble, who was sincerely trying to think through the complex issues around diversity. Perhaps he was wrong, perhaps he violated policy, but after the memo, there was a real opportu- nity to talk it through and, if it was wrong, persuade him as such. Why didn't that happen? Be- cause sometimes people fall into a mindset that is deeply com- mitted to punishing oppressors. When they loudly argue, "is is an attack on women," it's hard for people in the middle to push back and say, "Let's talk and learn from what each side feels." And here's the heart-rending problem for most of us. All our lives, we could simply support diversity initiatives without much thought, and be on the side of good. We've now reached a point where some diversity ini- tiatives are productive and some push it so far that they are deeply counterproductive. e ones that push it too far focus on coercion, punishment and blame. e "righteous anger" mindset trains people to be hy- persensitive. at angry mindset is bad for business and breeds dis- trust between groups. is means a situation like the Google one requires some diffi- cult thinking and careful orches- tration to find our way between the disasters of blithely ignoring the issue or brutally crushing dissent. ose of us in the middle need to realize we can no longer sim- ply accept the loud voices claim- ing something is sexist or racist are unambiguously on the side of good, nor can we ignore that constant effort is still required to create an inclusive environment. We in the middle are the vast majority, but we are deeply com- mitted to diversity and inclusion, so any hint that we are racist or sexist hurts us to the core. We have to find the courage to say, "Let's really talk this through from all sides, let's use this as a learn- ing opportunity; punishment will make things much worse." If we don't fight for the middle, for a world where different groups can talk and laugh together, then we will split into camps of extrem- ists who have no path forward. at's why I began by struggling to convey how important this is- sue is — it's not just about HR. What should HR do today? Read the memo itself, then watch a few of the interviews with the author of the memo, James Da- more, such as one on YouTube with Bloomberg. But here's the important point: Don't listen with a view of agree- ing or disagreeing, to choosing between point one or point two. Listen with a view to how you as a leader would take the people who fervently support Damore and the people who fervently denounce him, and bring them together. HR's job is to create that middle ground out of thin air; it's a difficult job, but the alternative is to end up with two extremist sides each try- ing to obliterate the other. at would be the worst out- come of all. David Creelman is CEO of Creel- man Research in Toronto. He can be reached at dcreelman@creelman research.com or for more information, visit www.creelmanresearch.com. The "righteous anger" mindset trains people to be hypersensitive. Redundancy during disability leave The delicate process of employee dismissals without risking discrimination Question: If an employee is on disability leave but her job becomes redundant, what must an employer do to termi- nate the employee without risking discrimination? Answer: An employer must al- ways be careful when it is consid- ering the dismissal of an employee who is on disability leave. Human rights statutes in all Canadian jurisdictions prevent an employer from discriminating against or dismissing an employee on the basis of protected grounds, which include physical disability and mental disability. To succeed with a human rights complaint, an employee must es- tablish he was dismissed or oth- erwise treated adversely, he has a protected characteristic (a physi- cal or mental disability), and there was a link or nexus between the adverse treatment and the pro- tected characteristic. Where an employee files a human rights complaint on the ground that she was dismissed while on disability leave, the evidentiary burden will usually shift to the employer to estab- lish that the employee's disability had nothing to do with the deci- sion to terminate the employee's employment. If the human rights tribunal or commission finds the dismissal was connected in any way to the employee's disability or disability leave, the employer will be found to have violated the statute. Where an employer closes its operation and dismisses all of its employees, including those on disability leave, there should be no basis for a human rights complaint. But in a redundancy situation, where an employer terminates only part of its workforce, it will be important for the employer to establish that its decision regard- ing the positions or employees who were declared redundant was not in any way influenced by disability-related considerations. In Morris v. British Columbia Railway Co., the B.C. Human Rights Tribunal awarded signifi- cant damages to a former BC Rail manager, after finding the em- ployer's decision to terminate his employment as part of a restruc- turing was influenced in part by his disability. e tribunal stated: "I accept BC Rail was, throughout the late 1990s, engaged in ongoing re- structuring and downsizing. But at the same time, I find that at least some part of BC Rail's motivation in choosing Mr. Morris as a target of that downsizing was the fact that he was disabled." "His disability played a role in BC Rail's decision-making in at least three ways. One, it affected his performance, which led to Ms. Deveaux's dissatisfaction with his performance and her desire not to have him as part of her team. "Two, it played a role in his re- fusal to take on the SAP Project work which was offered to him in an attempt to provide him with some further employment. "And three, the fact that his dis- ability might recur and require him to make a future disability claim, thereby exposing BC Rail to future liability, was a factor in BC Rail's decision to terminate his employment, rather than of- fer him continued employment in some other capacity." A similar conclusion was reached in McKenna v. Atlas An- chor Systems (B.C.) Ltd. ere, the employer made a decision to re- duce its workforce from 36 to 20 employees for economic reasons. e BC Human Rights Tribunal found that although the employer had some legitimate reasons for including the complainant — who was on disability leave — in the group selected for termination (which included the fact he was neither productive nor well-liked by his co-workers), the employee's disability played a part in the em- ployer's decision to select him for termination and, accordingly, the employer had breached the Hu- man Rights Code. Employers must also be mind- ful of the risk that terminating an employee who is on disability leave may lead to a court action seeking punitive damages and aggravated damages, based on the principles outlined by the Su- preme Court of Canada in Wal- lace v. United Grain Growers Ltd., Honda Canada Inc. v. Keays and, more recently, Bhasin v. Hrynew. To avoid the risk of legal action, it will be important for an employ- er to ensure it will be able to prove the termination decision was not connected to the employee's dis- ability. e employer should be able to point to objective factors unrelated to the disability that led to its decision to select the em- ployee for termination. For more information see: • Morris v. British Columbia Rail- way, 2003 CarswellBC 2002 (B.C. Human Rights Trib.). • McKenna v. Atlas Anchor Systems (B.C.) Ltd., 2011 CarswellBC 3641 (B.C. Human Rights Trib.). • Wallace v. United Grain Grow- ers Ltd., 1997 CarswellMan 455 (S.C.C.). • Keays v. Honda Canada Inc., 2008 CarswellOnt 3743 (S.C.C.). • Bhasin v. Hrynew, 2014 Carswell- Alta 2046 (S.C.C.). Colin Gibson is a partner at Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson @harrisco.com. The employer should be able to point to objective factors unrelated to the disability that led to its decision.

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