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CANADIAN HR REPORTER MAY 2018 FEATURES 31 We need feminine minds, not just bodies Understanding Asian traditions can unmask the missing link in organizational diversity In the Indian yoga tradition, the human body is recognized as a confl uence of energy path- ways, referred to as nadis. Among these are Pingala, described as analogous to the male energies, and Ida, described as analogous to female energies. Yogic experts insist that male and female do not so much mean gen- der but they refer to certain quali- ties. e core objective of yogic systems such as Hatha yoga is to fi nd a balance between these en- ergy systems. We see a similar philosophy in the Chinese yin and yang, where yin refers to female qualities, and yang to masculine qualities. Nei- ther is superior, and both must ex- ist in balance and harmony. I think that is the biggest link we are missing as we strive to make organizations more diverse. Saying that organizations don't have enough women working for them, especially for leadership positions, is only a part of the problem. Employers not only have fewer female bodies, they also have few- er feminine minds. is is where the understand- ing of male and female derived from ancient traditions found in India and China is very helpful. Consider a very simple aspect of organizational culture today. ink of the words often used in conversations: "shout-out, go for the kill, nailed it, go rogue, throw under the bus, dog eat dog or cutthroat." These words actually have a positive connotation at the work- place. And the more often they are used, the more driven, business- minded a person is likely to be perceived. Ironically, what kind of words have a negative connotation? What refl ects poorly on a person, if used by them? "Soft, sensitive, emotional, caring or vulnerable." When was the last time some- one was promoted to a leadership position, man or woman, who was well-known for having any of the latter set of qualities? ese are not merely words, these are attitudes; attitudes of yang and yin, which can be dem- onstrated by both men and wom- en. But yin is taking a beating in the workplace today. And there are strange dualities. Externally to media, leadership rhetoric is being laced with yin language of empathy and con- sideration. However, inside the boardrooms, in practice, it is pre- dominantly yang. And leaders who are showing their yin side are doing so only after their leadership position is irrefutably established. One of the most beautiful ex- amples of yin demonstrated by a business leader — and male at that — was Microsoft CEO Satya Nadella's account of how bringing up his special-needs child helped him connect better with people. It endeared him to many people's heart as a leader. But if Nadella had come out with this story much earlier in his career, what are the chances that — while people may have appre- ciated it — he may just have been perceived as a dad with great re- sponsibilities at home? And surely this means he is very emotional and attached to his family, so how can he become a CEO? There is an incentive in the workplace today to accentuate yang behaviours, and subdue yin behaviours — until the time that a person "has arrived." is manifests even in women professionals. Women who are making it to the top on merit of- ten feel compelled to demonstrate yang behaviours to an extent that might not be true to their nature. It is like wearing a mask to fi t in. is is why putting women in leadership positions alone will not solve the diversity problem, until they learn the value of yin and yang qualities in equal mea- sures in the boardroom. Because until then, women will naturally or falsely demonstrate the same behaviour, leading to low mental and attitudinal diversity. Often, it is argued that gender does not matter in leadership. I absolutely agree. Physical gender does not matter — at any level of the organization. But, the mas- culine and feminine qualities do matter, a lot. As another example, look at the contrast between two Uber leaders. Former CEO Travis Ka- lanick demonstrated overwhelm- ing yang qualities of aggressive- ness, cutthroat competition, and a complete disregard for people. Make no mistake, it did make Uber grow fast. And irrespective of what happens when things go out in the media, investors prefer such people — as long as other things can be "managed." However, not only did the peo- ple aspect at Uber go completely wrong, later, a lot of expensively incorrect business decisions (such as a coverup of a data leak) came to light — emanating from the same disregard for people and rules. In contrast, new CEO Dara Khosrowshahi seems to bring some balance of yin qualities. He has shown respect for rules and a vulnerability to accept mistakes. It remains to be seen, however, whether this is mere rhetoric or true nature. We will indeed hope for the latter, because the contrast and need for leaders to have yin qualities is evident. We have seen business casual- ties of an overtly yang approach in Wall Street. Investigations after the 2008 crash revealed a culture of disregard for people, dignity and ethics. Yin is business-critical. I hope there are brave leaders out there who are not just brave enough to own and acknowledge their own yin qualities, but encourage others in their team to do so. We have to start to looking be- yond gender as a physical form. Gender is a continuum, it is not an either/or. It is a continuum of diff erent energy systems interact- ing with each other, manifesting in diff erent measures of attitudes and more than the physical form. When organizations recognize this and how it impacts business results, they should seek to induct not just more female bodies but more feminine minds. Swati Jena is the founder and CEO of GhostWritersWorld. For more infor- mation, visit www.ghostwritersworld. com. Leadership rhetoric is laced with yin language of empathy and consideration. However, inside the boardrooms, it is predominantly yang. Recording employee misconduct Can a manager take pictures or video of employees without their consent? Question: If a manager sees employees participating in misconduct, can he take pictures or video with his smartphone without the employ- ees' consent and use it as evidence of misconduct? Answer: Videotaping or photo- graphing employees in order to gather evidence of misconduct raises both employment law and privacy law issues. It is fi rst im- portant to bear in mind that em- ployees in the workplace have a reasonable expectation of privacy. In general, Canadian employers can only collect, use and disclose personal information for pur- poses that a reasonable person would consider appropriate un- der the circumstances. Capturing evidence on a smartphone in this spontaneous manner can raise some real issues for the employer in both the employment law and privacy law realms. e manager's actions in this case would likely raise serious concerns that employees would be vulnerable to arbitrary intru- sions on their reasonable expec- tation of privacy. A four-part test has been articulated by Canadian courts and applied by privacy commissioners in many jurisdic- tions in determining whether this type of video or photographic evi- dence is reasonable. e key considerations include whether the use of surveillance is demonstrably necessary to meet a specifi c need, whether it is likely to be eff ective in meeting that need, whether the loss of privacy to the people being fi lmed is pro- portional to the benefi t gained, and whether there is a less priva- cy-invasive way of achieving the same end. Generally, based on this analy- sis, surveillance is only found to be acceptable where an employer can prove that a serious, legiti- mate business reason necessi- tates surveillance (such as safety and security, theft, vandalism or drug use or traffi cking), and that surveillance was appropriately implemented. Gathering evidence on a man- ager's smartphone would be con- sidered an intrusive encroach- ment on the employee's expec- tation of privacy. In fact, privacy commissioners in Canada gen- erally recommend organizations consider all less privacy-invasive means of achieving the same end before resorting to this type of evi- dence gathering. In the present instance, an em- ployer would already have strong evidence of the misconduct since the manager personally observed the misconduct and could attest to it. Recording the misconduct in this manner would likely be con- sidered an unnecessary invasion of an employee's privacy, when the employer can already person- ally attest to the conduct at issue. e use of surveillance in Can- ada is considered a form of col- lecting, using, and disclosing the personal information of the indi- viduals under surveillance. is triggers a number of obligations on the part of the employer under privacy laws which should be con- sidered in the event that an em- ployer ever fi nds its actions scruti- nized by a privacy commissioner. Privacy commissioners gener- ally take the position that an orga- nization should have a video sur- veillance policy if it is using this type of surveillance. In fact, this is a key component of legal com- pliance with privacy legislation and is often the main document that is reviewed by a commis- sioner when a complaint is made about a program. Among other things, it would typically set out the specifi c purposes of the video surveillance, access restrictions, and criteria to be met for camera installation. If the specifi c form of miscon- duct raises serious concerns such as safety and security, theft, or criminal behaviour, then the em- ployer could consider implement- ing a surveillance policy. However, it is important to bear in mind that an employer will need to complete its due diligence before doing so. In order to satisfy its obliga- tions under applicable laws and mitigate risks associated with a prospective policy, employers should, as a starting point, con- sider whether there is a serious, legitimate business reason for surveillance in the circumstances. If so, employers could draw from the 10 privacy principles articu- lated in the Personal Information Protection and Electronic Docu- ments Act (Canada) (PIPEDA). Although this does not apply to all employers on a wholesale basis, privacy commissioners generally recommend employers use these 10 principles as a touchstone in developing surveillance policies. Leah Schatz is a partner at MLT Aikins in Saskatoon. She can be reached at (306) 975-7144 or lschatz@ mltaikins.com. Question: If a manager sees employees participating in misconduct, can he take pictures or video with his smartphone without the employ- ees' consent and use it as evidence of Leah Schatz TOUgHeST HR QUeSTiON As a starting point, consider whether there is a legitimate business reason for surveillance in the circumstances. In the Indian yoga tradition, the human body is recognized as a confl uence of energy path- ways, referred to as nadis. Among these are Pingala, described as analogous to Swati Jena GUeST COMMeNTaRY

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