Category: Uncategorized

Titanium Spines & Harassment

Uber, Kay Jewelers, Dollar General, the Oscars.  Everywhere we look these days, sexual harassment is in the news.  The claims are at times horrific, devastating, and utterly amazing.  We have to do better.  We need to grow a titanium spine and deal with these issues before they take down our organizations.

Step Up

In the latest sexual harassment news, HR failed.  HR helped sweep clear harassment under the rug at Uber according to a female engineer.  How could hundreds of women allege harassment at Kay and Jared, and HR not smell a whiff of it?  If the allegations prove true, there’s no sugarcoating this.  HR in these organizations failed to address harassment and by extension, failed the oodles of super, duper HR people with titanium spines who would have done better as now our reputations have taken a hit.

Our jobs involve knowing our employees, developing relationships of trust, and then responding when what’s happening is a risk to our organization.  When HR doesn’t respond, it puts the organization at even more risk.  These cases are an example of that risk.  No matter what the legal consequences (the jewelry conduct is old and Uber might not be sued), the PR liability alone is not nothing.

I get it.  We have to pick our battles.  Sometimes fighting every battle means we go along when there’s risk to the organization.  But sexual harassment is always a battle to pick.  Steel (or titanium) yourself.  We now have countless examples to point to that will support us in fighting harassment when we see, hear, or otherwise learn of it.

Have a Good Policy

Sexual harassment policies have existed for decades now and can protect us.  Good policies define harassment, give examples, and outline what an employee should do.  Sometimes, these policies start by requiring employees “politely and firmly” ask the alleged harasser to stop.  This “please stop” provision comes before the employee is asked to report the conduct to a manager. While telling the harasser to stop indicates that conduct is unwelcome, it places a burden on the employee to take action when that burden really belongs to the employer.  As an organization, we want to know when sexual harassment happens.  Ask employees to tell you without requiring them to deal with it themselves.

Train

Train managers about your policy, sexual harassment in general, and the risks of doing nothing.  The training should challenge managers to identify harassment, ask them what they would do in these situations, and then allow them to ask as many questions they have.  Putting managers in scenarios is the best way to train them to do what the organization needs.

Seek Help

“If someone outside the organization says it, they’ll believe it.”  No doubt, when you pay extra for the advice, you tend to heed it.  So, find someone outside the organization to help support your position.  Attorneys have the magic fairy dust of attorney-client privilege.  Use us.  We can investigate, train, outline risk, and help sound an alarm when one needs sounding.  We want to help your organization be better.

Last month, I gave a presentation on employment law to an HR class at a prominent university.  One of the students asked if a startup could have a culture that allowed casual sexual harassment and just have employees sign a contract that they were okay with it.  It took every ounce of restraint I had not to dress him down in front of all his classmates.  Instead, firmly and politely pointed to American Apparel as an example of an organization brought to its knees because of a culture rife with harassing conduct.  I hope he took that as a cautionary tale, but I fear it fell on deaf ears.  It’ll be up to the HR people he meets to challenge or oust him. I bet they will.

Kate7 Comments

AI & HR: Vendors

Artificial intelligence is amazing.  For HR, AI promises to eliminate the tsunami of transactions that plague us, find us the best of the best candidates, identify internal threats to our organization, and simply make life easier.  Things we all want!

Artificial intelligence is also creepy and super scary at times.  While it’s creepy Netflix’s AI knows what TV shows to recommend and Amazon’s AI predicts what I’ll need when I need it, they are helpful.  Yet, the scary are truly scary.  Microsoft’s artificial intelligent Twitter bot turned into a Hitler-loving racist in less than 24 hours.  Google’s artificial intelligent photo recognition tool identified African Americans as gorillas.  The reasons Microsoft turned off its bot and Google changed its tool was because of the discrimination risk regardless of whether it was a legal or public relations risk.

When HR looks to integrate AI into its operations, the potential for the same risks exist.  Using AI or machine learning to improve our operations and identifying talent means the potential for discrimination exists.  Even when we remove data related to protected class status, the potential still exists.  It is almost inescapable, but it can be manageable.

One of the first things we need to examine is our relationship with vendors and how to appropriately use their expertise to reduce discrimination risk.  We look to vendors to deploy AI.  (HR rarely has the expertise in-house to create and release AI.)  Vendors already help us do many, many things, like manage recruitment through ATSs, create payroll through T&A systems, and manage steps in our performance management process.  We rely on vendors.  Yet, our relationships with vendors does not shift the compliance risk from us to them.  Employers are always on the hook for the decisions they make whether a vendor or technology helped. 

Here are a few things to consider in the AI vendor relationship:

Vendor, Do You Know the Law?

I spend time with data and computer scientists who are on the cutting edge of AI.  Every time I meet with them, I bring up the issue of discrimination, and they give me a dumbfounded look, like “Why would that apply to me?”  Then, they say, “Well, I’ve never seen that.”  (See the image above.)  But as the mountains of evidence that AI and machine learning can discriminate, the more vendors are going to have their feet in the fire on this topic.  Talk with vendors about the risk of discrimination, the EEOC’s requirements, and if they can intelligently respond to your questions and have plans in place to respond to your needs, SUPER!  If they don’t, be skeptical.

Vendor, Explain Thyself

Remember our geometry teachers demanding that we “show our work?”  The EEOC and other state and federal agencies already require employers do the same.  With recordkeeping requirements and investigations, employers must show how they don’t discriminate.  When employers rely on AI to assist with making decisions, the EEOC and other agencies are going to ask how the AI worked and what it did.  When the AI is a vendor’s trade secret, will the vendor share?  While vendors may not need to explain how it works in detail today, you may need them to in the future so you can respond to agency questions.  Put this in your vendor contract.  Also, require vendors to give you input and the authority to change how the AI works.

Vendor Test Strips

Finally, when AI helps you make employment decisions, are those decisions in-line with the Uniform Guidelines of Employee Selection Procedures?  Are the criteria or decision-making of the AI really job-related and a business necessity?  Are you able to explain that?  Require vendors to validate, test, and revalidate their tools to your business and your positions.  The more testing to show discrimination doesn’t exist the more helpful and compliant the decisions will be.

I want to reiterate my HR technology pledge.  I don’t want to hold employers back from using tools that help them improve.  But with every new piece of technology – just like every new employee – risk abounds.  It’s the job of an employment attorney to help make the technology just a bit safer.

Kate1 Comment