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Abhimanyu Sharma

Aticle 32

Barriers of Communication

by Keisha-Ann G. Gray | Human Resource Executive Online

1. 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 Iquestion 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 andadministers 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 toissues 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 maintainingconsistency 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 -- bothin 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 shouldalso be consulted to ensure compliance with company rules, guidelines and procedures, including

those contained in employee handbooks or other materials.

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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 employmentpractices. 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 andmedical 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 andcoordinate 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 thecompany'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 companyas a result of your lack of communication with HR and the need to remedy the problem in the

best interests of the organization.

2. 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 lawsuitalleging discrimination is filed?

Answer: The dilemma you address is a difficult one, but I believe it is best addressed byrevisiting 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

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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.

Employers may be liable for discrimination or harassment not only if they knew, but also if theyshould 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 wasaware 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 S. 12940 (k). Thus,

keeping quiet about incidents of bias could subject your company to substantial liability based onyour 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 tothe 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 fromretaliating against employees who oppose discriminatory employment practices under federal

law and many similar state laws.

An employee's reporting of his/her belief that the employer has engaged or is engaging inemployment 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 toreport what you believe, in "good-faith", to be bias in your workplace.

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[About the Author: 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.]