Diversity policy raises hackles at Acme

In this month's In the Trenches, Acme's exploration of diversity by fiat backfires.

Driven both by an ardent desire to be acknowledged as one of the town’s better corporate citizens and the dismal statistics that reflect its appalling lack of success in that strategic endeavor, Acme management finally decided to get off the dime. The first initiative selected in pursuit of this corporate renaissance was the idea of promoting diversity among its workforce. After all, the concept of peaceful coexistence among all peoples is deeply entrenched in the American psyche. It’s something that ranks just below mom and apple pie as one of this country’s collective motivators. On a more practical level, having a written diversity policy might come in handy for deflecting the ruthless attacks that can accompany discrimination claims filed by any formerly contented, now totally ungrateful, worker on the plant floor.

As nice a goal as diversity might be, Acme faces one main difficulty in achieving it in the true sense of the word. The U.S. Census Bureau reports that only 0.02% of the population within 45 miles of the plant could even remotely qualify for inclusion in a group that a governmental body would classify as minority. Undaunted by this reality, Acme forges ahead, ever upward, reaching an apex in the highfalutin wording intended to convey its brand-new diversity policy. Among the provisions in the grand document of which management is so proud is a statement that binds each Acme employee to “acknowledge, embrace, respect and value the differences we exhibit in our daily lives.”

Acme treated the release of this addition to its employee handbook as a golden opportunity to update and republish the entire manual. The diversity policy appeared at the very front -- Policy No. 1 -- a position that trumped even the standard government wording, found 18 pages later, about discrimination on the basis of gender, age, religion, sexual orientation, race or ethnicity.

Every employee received a new shiny, olive-green loose-leaf binder chock full of policy statements that covered every conceivable question a member of the working masses might have about the time spent in the plant or outside on Acme business. Along with the manual was a single-page Memorandum of Understanding that employees, management especially, were required to sign as a way to acknowledge receipt of the tome, as well as agreement and acceptance of the terms and conditions, rules and regulations set forth in the various policies. In fact, signing the document was a condition of employment.

One of those managers is Zina Fohbeck, living proof that a small-town gal with terrible eyesight and posture can still parlay innate talent and hard work into an ever-widening doorway through the glass ceiling that separates commoners from the stars. She’s the best objective proof so far that Acme is trying hard to achieve a suitable degree of diversity. Make no mistake about it, though; Acme will never be accused of confusing ego or glibness for competence. Zina actually does what she says she’ll do, and she’s ruthless about exceeding expectations. Intimidating might be an apt descriptor here.

Even before the arrival of the company-wide e-mail instructing employees to sign, date and return the Memorandum of Understanding, Zina already had taken the time to read every word of every policy. The last thing she wanted to do was upset her track record by being blindsided by something minor that’s supposed to be common knowledge. Besides, the knowledge might be useful should she find it necessary to derail some rising star in the Acme firmament bold enough to threaten her fiefdom.

And it’s a good thing she read each page. As with every policy manual ever written by the hand of man, Acme’s contained an abundance of ambiguous terms and phrases that probably mean absolutely nothing when push comes to shove. But, that’s not the way Zina operates. Instead, she tagged the ambiguous passages with small Post-It notes and sought clarification from members of the committee that updated the manual. Her efforts uncovered nothing more than different explanations, sometimes contradictory, always vague.

As Zina interpreted her situation, signing the memorandum obliges her to accept and embrace the practice of homosexuality, something she claims is absolutely loathsome, disgusting and completely antithetical to her deeply-held beliefs and family upbringing. She doesn’t know if she’s ever met a homosexual, but she doesn’t want to start meeting any now, policy or no policy.

The morning after she finished reading the manual, Zina went to her supervisor, Perry Stroyka to announce that she could not, in good conscience, sign the Memorandum of Understanding and to explain why. Perry listened impassively, then merely reminded Zina that signifying her acceptance of the tenets of the policy manual by means of a signature was a condition of employment. Perry also expressed the opinion that it would be in Zina’s best interest simply to get with the program, sign the paper and move on. Zina countered with an offer of a heartfelt promise, in writing, not to harass or discriminate against other employees, including homosexuals. But Zina remained unwaveringly firm in her refusal to sign the Memorandum that was included with the policy manual.

During lunch, Zina returned to Perry’s office and dropped two sheets of paper on the now unoccupied desk. The first was the unsigned official memorandum; the second was a signed copy of her promise that reflected the alternate wording she proposed earlier in the morning. She then went to her office, gathered her things and left for the day to go home and decompress.

The next morning, Perry intercepted Zina when she walked in and escorted her to a conference with Rhoda Dendreen, the HR Director. When Perry handed Zina the memorandum and asked for her signature, Zina refused. Rhoda reiterated that signing the document was a condition of employment. Zina tried to engage Rhoda in a convoluted philosophical argument that was supposed to justify her refusal to sign. Rhoda replied that making an exception in this case undermines the whole purpose of the policy manual. Then, Zina reiterated her need for clarification of terminology. Rhoda tolerated about 90 seconds of Zina’s droning before cutting her off to tell her that she is terminated for failing to accept the policy manual, effective immediately.

What could Acme and Zina have done to avoid this confrontation? How could Acme have accommodated a conscientious objector? Could it be that signing the memorandum constitutes a hardship for Zina? Does it even make sense to have a diversity policy, given Acme’s geographic location? Are there better ways to reduce the number of worker discrimination claims?

A corporate consultant says:

C'mon now Acme! If one's employment is conditional on signing a document, that document ought to be clear. I'm not saying employees should be able to wordsmith a policy, but it sounds like this document was more than a little ambiguous.

Making employment contingent on a policy that is ambiguous is asking for legal trouble. HR should have worked with legal counsel to either clarify the language or to clarify the legality of termination based solely upon one's refusal to sign. "Sign or be terminated" really does harken back to the Inquisition after all.

We've all met pedantic, irritating hair-splitters who make mountains out of mole hills. Sounds like Zina was of that ilk. But Zina's anal nature is irrelevant to Acme's objective, and HR should have realized it. The objective was to implement a diversity policy at Acme, not in the personal lives of each of its employees. Appending a consequence as severe as termination for failure to sign should have raised the bar on the pre-publication vetting process. Having done so would likely have revealed that adding the words "while conducting business on behalf of Acme" may have avoided the whole problem.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
fmdalton@daltonalliances.com

An academician says:

Interesting case. We’re seeing more and more diversity statements, not only for businesses but for organizations ranging from the Boy Scouts to retirement communities. Should Acme have one even though there are few minorities in their geographical area? Definitely, because diversity statements cover the tolerance of differences in gender, religion, sexual preference, age, race as well as other employee characteristics. The point being that diversity statements are not only for those we typically classify as “minorities.”

However, diversity statements (and diversity training) aren’t free of controversy. For example, some conservative Christians have objected to such statements because they perceive the statements endorse gay, lesbian or transsexual lifestyles, or “new age beliefs,” which contravene their religious beliefs.

I don’t feel qualified to comment on the legal aspects of this case. However, I note a couple of points. First, any form of discrimination based on gender, age, religion, race, sexual preference and the like is prohibited by law. You can’t do it legally, period. And that’s what most diversity statements cover -– an acknowledgement that intolerance won’t be tolerated.

Companies get into problems, in my opinion, when they go beyond the basics and talk about “embracing,” or “honoring” differences. This language could be interpreted as meaning that the employee, perhaps a conservative Christian, is being forced to endorse something that is against their religious belief. Or, putting the shoe on the other foot, it might appear that a gay person or atheist is being forced to endorse conservative Christianity.

My advice would be for companies to stick with a basic statement, which lays out in some detail that “all employees will be treated with dignity, fairness etc. without regard to race, gender, etc.” I don’t see any evidence that broader statements (which talk about honoring or embracing) have much effect on anything. I appreciate that the intent of these latter statements is to take a proactive approach to diversity and to build a culture of inclusion. However, I’m not convinced that the wording itself has much effect on tolerance.

Finally, I don’t see the need to ask anybody to sign anything. Company policy is company policy, and it’s the employee’s obligation to comply with the policy as a condition of employment. Certainly employees should be aware of the policy -– but their signature is unnecessary.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

An attorney says:

It seems to me that Acme has thrown the baby out with the bath water. While the company’s efforts to institute and emphasize a diversity policy are laudable, Acme’s unwavering stance over this policy cost it a valued employee and demonstrated that Acme was unwilling to tolerate a particular philosophical stance.

The language in the policy that Zina found unacceptable, to “embrace” and “value” differences among employees, is fairly standard language in a diversity policy. One step beyond a discrimination policy, the diversity policy encourages workers to value the cultural, religious and ethnic differences among employees in the workforce. That pushed Zina too far.

Acme had every legal right to terminate Zina for refusing to accept the terms of the new policy manual. However, it could have tried to achieve some compromise with her. For example, Acme could have worked with Zina to expand her offer to promise not to harass or discriminate against homosexual employees. Had she added a promise to work with homosexual employees and to value their opinions and efforts as employees, that should have been sufficient for Acme. To achieve diversity in the workforce, Acme didn’t need a commitment from Zina that she valued homosexuality.

Apart from Zina’s objections, it makes perfect sense for Acme to have a diversity policy even with its geographic location. In all likelihood, Acme’s workforce consists of employees of different ages, ethnic backgrounds and religions, all of whom bring a different perspective to the workplace. After all, that is what diversity is all about.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

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