How Leveraging Difference Keeps You from Getting Sued for Discrimination

February 22nd, 2010

If the title of this posting caught your attention because you are being sued, you should read, but not much that I write is likely to help you overcome your lawsuit. I was saying just that to a potential client recently. They had invited me to meet with senior executives in the company and, other than knowing that their interest was diversity-related, I did not know what they wanted from me. As it turned out, I learned that they were fairly certain they would be sued for racial discrimination. I wasn’t of much help to them, mostly because I have no legal training and they needed good legal counsel. But I shared with them a way of preventing future suits that I have uncovered in my experience with dozens of companies on the brink.

Treat people fairly. I don’t think they were all that impressed by this truism, but as we kept talking I think I made my point more clearly. Treating people fairly certainly means not denying one group of people a benefit that other groups receive. That dictum is relevant when it comes to compensation, promotions, exposure to clients, or selection of sales territories. But what about more intangible benefits?

Like feedback, for example.

The research is clear: women and people of color often perform below par, relative to their white male counterparts, because managers are reluctant to provide the timely and accurate constructive feedback that helps improve performance. Part of the reason this happens is because delivering bad news—telling someone their actions are off-base—can be difficult for managers, no matter what the situation. But when it comes to giving feedback to someone who is different from the majority, a manager can freeze up for fear of saying the wrong thing and offending the person, or even worse, saying the wrong thing and having a complaint filed. Indeed, on the surface, it looks like the answer to the dilemma of not getting sued is to keep your mouth shut when it comes to dealing with women and minorities.

Not according to a panel of corporate lawyers I interviewed.

When, in the planning of a leadership development curriculum on diversity, I asked these lawyers if it was acceptable to teach managers skills for talking about difference, even though the company was mired in a lawsuit, they gave me the go ahead and offered a surprising reason for their recommendation. “We’re not getting sued because a manager said something offensive to a minority. We’re getting sued because too many managers weren’t willing to say anything to help minority employees perform better.” They argued that minority managers were suing the company because there was not enough skillful feedback provided equitably to all employees. As a result, minority employees kept falling further and further behind their white counterparts in performance, until they felt they had no other way to alter the status quo other than filing a lawsuit.

What could that company have done differently? Begin to foster a culture of feedback. Instead of sanctioning excessive politeness, backroom politicking, and suppressing differences of perspective, encourage and reward people for speaking their minds, especially when it comes to making the real work of the company better. This can’t happen overnight. In addition to asking people to be more forthright, you also have to help them build the skill. When it comes to giving effective feedback to people who are different, eight important skills enhance any manager’s toolkit:

  • Assume a learning stance—remember your subordinate has a perspective on the situation that you can learn from.
  • Listen effectively
  • Self-disclose—be transparent about your goals for the feedback conversation.
  • Inquire about your subordinate’s perspective on the situation.
  • Take an alliance attitude (as opposed to adversarial attitude) toward subordinates and seek to be supportive (even if it requires tough love.)
  • Be willing to initiate discussions about differences relevant to your subordinate (e.g., race or gender.)
  • Ask for and receive feedback from your subordinate.
  • Problem-solve together: your path forward may not always be the best one. Work with your subordinate to craft the best action plan for him or her.

Some of these skills are familiar (who hasn’t attended a good “active listening” seminar somewhere down the line). Others are more challenging (how do you broach a sensitive topic like race or gender in a professional way)? The key is for managers to learn the skills, practice them as much as possible, and find institutional support for this new way of interacting.

And by the way, these skills aren’t just for giving feedback to people who are different. Try them out on all your subordinates and see what happens.

One Response to “How Leveraging Difference Keeps You from Getting Sued for Discrimination”

  1. James S. Williams Jr. says:

    In my current role as Business Diversity Manager for the University of Chicago Medical Center, I build business relationships with minority- and women-owned companies across the enterprise.I write because for years I have advanced the notion of leveraging the strength of diversity for competitive advantage. In fact, my graduate studies at DePaul center on Leadership and Diversity. As such, I am particulary intrigued by your work on leveraging difference and look forward to your upcoming book.

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