For employers, race-based discussions in the workplace may spark fears and risks of spawning claims of discrimination, harassment, or hostile work environments. Current events, however, provide an impetus for employers to not only reassess and revamp their diversity and inclusion programs, but to address the reality that employees of color need more than a formal company diversity initiative to feel included, valued, and safe in the workplace—all of which impact employees’ ability to be productive.
The truth is that, while it may be uncomfortable, employers can and should acknowledge the unique emotional and psychological burdens experienced by employees of color, during this time of crisis or otherwise, and offer assistance to alleviate those burdens.
Employers tend to discourage employees from discussing race issues at work for fear of inappropriate comments, or statements that may be misunderstood or perceived as bias. Employers who fear discrimination claims often foster “colorblind” workplaces where employees are implicitly or explicitly discouraged from having race-relevant discussions, or even acknowledging the differences experienced by different races, in an effort to avoid the appearance of bias.
“Colorblind” practices, however, may themselves be perceived as bias, leaving employers equally vulnerable to lawsuits. More importantly, employees, particularly persons of color, are left struggling to navigate sensitive subjects without appropriate support in the workplace.
A recent Harvard Business Review article outlines ways employers can avoid “colorblindness” and take meaningful action to support employees harboring painful emotions from the civil unrest and injustice around us.
Recognize Effects of Current Events
First, employers should openly recognize the profound effects current events may have on colleagues of color, and reaffirm their support for employees and the values of equality, respect and fairness. Employers should offer empathy and compassion, “open door” policies (particularly important during the isolation felt by so many during the current remote work environment), and a listening ear.
In the words of our own firm’s litigation department chair, Geoff Kahn, “the mere act of airing the issues and trying to unpack and process them [is] cathartic.” Employees need a safe, honest, and constructive space in the workplace to address issues unique to people of color given, on average, we spend one-third of our life at work.
Resources are available to guide employers in encouraging these discussions in a productive manner, while minimizing risk of perceived bias. Employers fearful of liability stemming from such discussions should understand that real exchanges about race and racism aimed at ensuring that everyone feels “heard, supported, and authentic at work,” carry a low risk of hostile work environment claims, which are marked by severe or pervasive discriminatory intimidation, ridicule, and insult.
Be Comfortable With the Uncomfortable
Second, employers should expect and be prepared for discomfort. Allowing employees to discuss the inequalities and injustices that continue to plague our society may result in missteps, misperceptions, and potentially awkward conversations.
To combat this, employers should make clear that their efforts are grounded in care and concern for the well-being of employees of color and others who feel alienated or overwhelmed amidst the current crisis. In addition, employers should remind employees of the company’s complaint resolution process and encourage reporting of any discriminatory conduct.
Third, employers should avoid making generalizations about groups of people affected by public conflict. They should remember—and encourage all of their employees to remember—that one black employee’s views and experiences are not necessarily representative of all black employees’ views and experiences. Employers should also not assume that their black or minority employees want to be involved in company diversity efforts.
Authors of Race, Work, and Leadership Laura Morgan Roberts and Anthony Mayo, recently wrote of the “diversity fatigue” black professionals often feel when it is assumed or expected that they be “cultural ambassadors” for their black peers, requiring them to shoulder the burden of not only the job that they were hired to do, but also being engaged in task forces, trainings, and other initiatives to represent their demographic.
Make Resources Available
Finally, employers should remind employees of available mental health resources, and, even if not required, consider offering employees paid time off to focus on mental health, or participate in peaceful protests or other racial justice and equality initiatives.
This is not an exhaustive list, but one meant to highlight a few ways employers can offer active, compassionate, and non-judgmental support for employees’ physical, mental and emotional health during these difficult times.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Emily J. Daher is a labor and employment lawyer in Ballard Spahr’s New Jersey office. She advises and defends employers in matters involving discrimination, retaliation and whistleblower complaints, harassment, and wrongful termination claims. Daher also assists employers with drafting and reviewing workplace policies.
Sadé C. Calin, also based in the firm’s New Jersey office, is a member of the Litigation Department. Her experience includes the handling of labor and employment disputes, including discrimination cases, and assisting with workplace policy development, as well as handling commercial litigation matters.