Legal Clinic

Barriers of Communication

What should a supervisor do when the HR director refuses to communicate about workplace issues? And what should HR do when he or she witnesses what appears to be intentional bias in hiring. These are the issues addressed in the Legal Clinic this month.

Monday, December 27, 2010
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Question: What are the options, as a supervisor, when the HR director refuses to communicate with you? She also will not allow any contact with other HR employees. We are in the same protected class. There is no basis for this treatment except for the fact that she is new and I question some of the mistakes made in HR. As a supervisor, I feel it is my responsibility to make sure things are done correctly, especially when it involves my department and HR. If I have no contact with HR and the EEO Officer (who works for HR) refuses to speak with me -- what are my options?

Answer: The situation you describe creates the potential for numerous problems within your company or organization.

There are many reasons why open communication between supervisors and the HR department is critical in managing your company's personnel. The HR department establishes and administers policies and practices on a company-wide basis to ensure that the company's needs are met within the framework of applicable laws and regulations.

Supervisors are generally familiar with issues involving employees "on the ground" and are typically the first responders to issues that arise among employees -- and in responding, must employ the policies and practices established by the HR department.

Because neither can do an effective job without the other, and because fostering and maintaining consistency of policy and practice is important to the workplace, it is necessary for HR professionals and supervisors to communicate, coordinate and cooperate with each other.

For example, where employee disputes, complaints or performance problems arise, it is most essential for supervisors to coordinate with HR. In these cases, a prompt and impartial investigation of the facts underlying the complaint, dispute or problem must be initiated -- both in order to obtain the most reliable evidence while the incident is fresh on the minds of those involved and to help insulate the company from claims that any necessary follow-up action taken was merely pretext to conceal unlawful bias.

However, it is often the case that a supervisor is not in the best position to conduct such an investigation because he or she may be implicated in or may otherwise be too close to the people or matters involved to conduct an impartial inquiry.

This is one common and critical example of when coordination between supervisors and the HR department is necessary. Similarly, when disciplining employees becomes necessary, HR should also be consulted to ensure compliance with company rules, guidelines and procedures, including those contained in employee handbooks or other materials.

This will help give effect to such company policies by facilitating their uniform enforcement and application, as the HR department is usually most familiar with these standards and how they have been applied and enforced previously.

Failing to consult with HR on such disciplinary matters may result in inconsistent treatment of employees that can expose the company to claims of discrimination or other illegal employment practices. Further, HR typically manages employee personnel files, and documentation of employee discipline must be included in those records.

Communication between supervisors and HR is also important outside the context of complaints, disputes and discipline. For example, working with HR to craft messages transmitted to employees in performance reviews can help avoid claims of discrimination or retaliation based on comments made in such reviews.

HR is also very useful in ensuring compliance with applicable wage-and-hour, leave and disability accommodation laws. It is both inefficient and inappropriate for a supervisor to keep track of and determine an employee's eligibility for sick leave, vacation time off, or family and medical or other legally-protected leaves of absence.

Moreover, a supervisor is not the appropriate person in the organization to determine the appropriate way to accommodate an employee who claims to be disabled.

For these and other reasons, it is indeed your responsibility as a supervisor to communicate and coordinate with the HR department. Thus, you should attempt to explain to the HR director the importance of maintaining a working relationship between you.

However, if the HR director continues to avoid contact with you, you may consider expressing your concerns to the company's legal department and/or the person to whom the HR director reports.

Such concerns should be couched in terms of the numerous potential risks faced by the company as a result of your lack of communication with HR and the need to remedy the problem in the best interests of the organization.

Question: Can you talk about the dilemma faced by mid-level HR professionals when they observe what seems to be illegal bias but decide not to report it because they fear that their reporting may result in a personal career setback? Are there any actions mid-level supervisors can take to protect themselves if they decided not to report observed bias and an actual lawsuit alleging discrimination is filed?

Answer: The dilemma you address is a difficult one, but I believe it is best addressed by revisiting the importance of your role as an HR professional in recognizing and preventing workplace discrimination. HR professionals play an absolutely vital role in upholding anti-bias laws.

Those in the HR department are usually most keenly aware of the employment practices and conditions that are prevalent in the organization and are often in the best position to recognize and alert the organization to discriminatory, retaliatory or harassing conduct.

However, as you point out, HR professionals can understandably feel pressure to remain silent in the face of perceived bias in the workplace for fear of jeopardizing their own career advancement. However, it is critically important -- both for the benefit of your organization and for yourself personally -- to promptly report all instances of workplace bias.

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Employers may be liable for discrimination or harassment not only if they knew, but also if they should have known of the discriminatory or harassing conduct occurring in the workplace. See e.g., Swinton v. Potomac Corp., 270 F. 3d 794, 804 (9th Cir. 2001).

Specifically, knowledge of such unlawful activity may be imputed to the company if a "management level" employee was aware of it, and HR professionals are generally considered "management level" employees. See Huston v. Proctor & Gamble Paper Products Corp., 568 F. 3d 100, 107-08 (3rd Cir. 2009) (employee's knowledge of harassment may be imputed to employer where the employee is specifically employed to deal with harassment issues).

Some state laws also create a distinct cause of action for failure to prevent discrimination. See e.g., California Fair Employment and Housing Act (FEHA), Cal. Govt. Code ยง 12940(k). Thus, keeping quiet about incidents of bias could subject your company to substantial liability based on your knowledge of such conduct.

In addition, remaining silent in the face of perceived discriminatory misconduct can cause you to be named personally in a discrimination or harassment lawsuit filed by an employee. Many states -- including California, New York and Massachusetts -- have statutes prohibiting individuals from aiding and abetting workplace discrimination.

These laws often create personal liability for individuals who are found to have violated them. While it is unlikely that merely failing to disclose perceived biases at work would rise to the level of "aiding and abetting" discrimination under such statutes, it may nonetheless cause a plaintiff who becomes aware of your prior knowledge of the bias to include you as a named defendant in his/her lawsuit.

Thus, the potential damage to your career resulting from remaining silent may be greater than the possible negative effect of reporting the perceived bias. Employers are prohibited from retaliating against employees who oppose discriminatory employment practices under federal law and many similar state laws.

An employee's reporting of his/her belief that that the employer has engaged or is engaging in employment discrimination almost always constitutes legally-protected activity. Crawford v. Metropolitan Gov. of Nashville & Davidson County, Tenn., 129 S.Ct. 846, 851 (2009).

Therefore, you should feel confident that you cannot legally be retaliated against if you decide to report what you believe, in "good-faith", to be bias in your workplace.

Keisha-Ann G. Gray is senior counsel in the Labor & Employment Law Department of Proskauer in New York and co-chair of the Department's Employment Litigation and Arbitration Practice Group.

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