Canadian HR Reporter

CANADIAN HR REPORTER October 16, 2017 INSIGHT 19 Brian Johnston ToUghest HR QUestion Takeaways from 'the Google memo' Dismissal of engineer provides lessons on corrosive behaviour, codes of conduct e Google "debacle" involving an employ- ee's memo on diversity, and his subse- quent dismissal, caused quite a stir. And David Creelman of Creelman Research provided his opinion in the Sept. 4 issue of Canadian HR Reporter. I'd like to off er some additional points for HR practitioners to consider, so we can learn from this incident, plan for similar future circumstances, and be proactive inside our own organizations so we are aligned with the relevant laws and human rights legislation. First, here's a quick recap: A Google employee, James Damore, wrote and posted on Google's in- tranet a 10-page memo to all staff called "Google's ideological echo chamber" in which he decried Google's stated commitment to diversity, using information he claimed was drawn from scientifi c research. An uproar followed, Damore was fi red, and much of the debate has focused on Damore's personal views and their legitimacy, on his rights to free speech and whether they were violated, and what the role of HR in these situations might be. HR is typically reluctant to take on situations that involve infl am- matory opinion, and this situa- tion appears to have been com- plicated by the red herring that Damore was ranked as a superior performer — who just happens to perpetuate gender stereotypes on the side — so "Can we please just move forward?" Um, no. ere are a number of aspects to this situation, which if we take a mo- ment to step back, will provide a clear and objective way forward for organizations and employees. Firstly, Damore was terminat- ed not for holding unusual views but for violating Google's code of conduct, which at Google and most companies is a condition of employment. Google might have had little to say if Damore had been discrete in his views and not brought them to work, but he did and he used company resources and company assets to spread a personal opin- ion that was in direct violation of Google's stated values and code of conduct. e memo also had a negative impact on Google and its cor- porate reputation, and in those circumstances, Google also had a right to act. Employees are sel- dom aware that if their behaviour on the job (and often off the job too) has a negative impact on a company's reputation, there will be consequences. Google was within its rights as an employer to act. So, does your company have a code of conduct? Is it reviewed with employees regularly? Do they have to sign off on it as a condition of employment? Are expectations for on-the-job be- haviour and use of company as- sets made known at the point of onboarding? Something simple and straightforward can save a lot of heartburn later on. Secondly, Damore was de- scribed as a good performer and this brings me to another aspect of dealing with this situation. How many times has HR been asked to overlook corrosive and destruc- tive behaviour on the job because the perpetrator was a "valued as- set" — regardless of the collateral damage he is infl icting on others and the collective drain on colle- giality and collaboration? And looking ahead to when this employee might end up leading a team and managing people, can direct reports to a manager who states that women are "neurotic" and men have a "higher drive for status and leadership" be truly assured that their performance reviews and bonus recommenda- tions are based on evidence and objective consideration? Robert Sutton, professor of management science at the Stan- ford University School of Engi- neering in California, has written superbly about the larger impact of tolerating what he calls "ass- hole" behaviour at work; while a high-performing but corrosive personality is being tolerated, the collective excellence of the rest of that team is squandered and the associated costs to the business and the corporate culture are astonishing. Both of these considerations lead to a number of systemic op- tions involving screening of can- didates and onboarding. If a com- pany is truly sincere in its commit- ment to diversity and inclusion, this will not just be stated on the web page and in the job ad, but be key in the hiring process and the onboarding process. Candidates will be reminded that there are specifi c, inclusive behaviours a company must see if any individual hopes to be suc- cessful, that it's not just a matter of being a crackerjack engineer. So, does your company also screen for soft skills or test for emotional intelligence? Once at work, does your company recog- nize staff who engage in inclusive and collaborative behaviours? Eruptions like this can happen at any time, so how do you pre- pare? Recognize the fact that bias exists, and prepare for how your company wants to respond. Reach out to the human rights commis- sion in your particular province or work with the high-quality in- formation they have available on- line. Take this information back to your organization and turn it into actionable behaviour. You'll need to look at what your code of conduct says (or doesn't say) about behavioural expecta- tions. And if you have vague state- ments like "We will practise mu- tual respect," get your employee groups involved in determining what that looks like for them, in real behavioural terms. While the Damore memo was embarrassing for Google, it also provides an opportunity to bring these issues to light and talk them through. is won't be the last time something like this occurs, and we now have a chance to be better prepared for the next time. Celia Featherby is an HR consultant and was previously the diversity man- ager and senior development consul- tant at Hydro One. She can be reached at caf@bell.net. e Google "debacle" involving an employ- ee's memo on diversity, and his subse- quent dismissal, caused quite a stir. And David Creelman of Creelman Research provided his opinion in the Sept. 4 issue Celia Featherby GUest CoMMentarY Eruptions like this can happen at any time, so how do you prepare? Figuring out employee co-operation during accommodation process What happens when a worker refuses to supply needed medical information? Question: If an employee requests specifi c accommodations but refuses to supply any information about her medical issue or restrictions, is the employer obligated to meet the requests? Answer: No. If the employer's request for information was rea- sonable and necessary to allow it to evaluate the need for and ap- propriate form of accommoda- tion, and the employee refuses to supply that information, the employer does not have to meet the employee's requests and will be relieved of its duty to accom- modate her. While the burden of finding an appropriate accommodation lies primarily with the employer, workplace accommodation is a two-way street. e law seeks to balance the employee's right not to be discriminated against with the employer's legitimate interest in a safe and productive workplace. e Supreme Court of Canada has been clear that employees have a duty to assist in and facili- tate the search for accommoda- tion, as seen in the 1992 case Re- naud v. Central Okanagan School District No. 23. It is not only an employer's right but its responsibility to seek suf- fi cient information so it can verify and understand the need for ac- commodation and to identify spe- cifi c accommodation needs. is may include medical information and documentation. For their part, employees re- questing accommodation have to provide reasonably suffi cient information to facilitate the pro- cess. For example, if an employee makes a request not to work at particular times on the basis of a disability, the employer may be entitled to relevant medical in- formation supporting the need for this specifi c accommodation, as seen in the 2013 Human Rights Tribunal of Ontario decision Rhi- jnsburger v. Wal-Mart Canada Corp. And in the 2015 Bottiglia v. Ottawa Catholic School Board decision, the Ontario Human Rights Tribunal dismissed the complaint after fi nding the em- ployee had failed to participate in the employer's reasonable re- quest for medical information in the form of an independent medical exam. In a well-known Nova Scotia case, the 2006 Halliday v. Mi- chelin North America (Canada) Ltd., a board of inquiry denied a complaint of discrimination on the basis of disability. Despite ini- tiative taken by the employer, the employee provided only a "very confusing and vague picture" of the source of his disability. e board determined that at the stage of examining the em- ployer's duty to accommodate, the employee had an obligation to identify the disability with some specifi city and a treatment plan. e vague information provided did not enable the employer to ful- fi ll its duty to accommodate. In the accommodation process, the employer "cannot begin look- ing for (accommodation) unless it knows what it is looking for," said the board. Limits to requests Of course, there are limits as to what information an employee must provide. When an employ- er unjustifiably requests medi- cal information, the employee's refusal to provide the informa- tion does not justify a failure to accommodate. For example, in the 2007 Cole v. Bell Canada decision, the Ca- nadian Human Rights Tribunal found that the employer's de- mand for medical information supporting an employee's request for modifi ed working hours to allow her to breastfeed her child was unjustifi ed. No supporting information was required in the circumstances given that the employee had just returned from maternity leave. Ultimately, the information re- quired to allow an employer to un- derstand and explore appropriate accommodations will vary from case to case. Employers should only request information that is genuinely required in order to understand and assess the request for accommodation. In the view of the Alberta arbi- tration board in the 2006 Capital Health Authority v. U.N.A., Local 33, some types of information that can reasonably be required include: • the nature of the illness or disability • whether it is permanent or temporary • any restrictions and limitations • how the medical conclusions were reached (for example, were any objective tests performed or was most of the information self-reported?) • any treatment or medication that might impact the accommo- dation or the employee's ability to perform her job. Of course, each case will turn on its circumstances, including the particular form of accommo- dation requested. Brian Johnston is a partner at Stew- art McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohn- ston@stewartmckelvey.com.

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