The Cobbler’s Children Have No Shoes

During the last few months, we have explored a number of protected groups that are sometimes forgotten or ignored: veterans, pregnant employees and employees with credit or criminal history woes, to name a few. As diversity executives, we are supposed to be a helping hand to solve workplace discrimination problems. But who is watching over us?

The fact is, diversity, human resources and legal departments are no different than any other division of an organization — they are composed of employees and managers, and they hire, discipline and fire. And, just like any other unit, mistakes can happen, and sometimes HR executives make decisions for erroneous or even illegal reasons. Think human resources gets a pass on the rules? Think again.

Human resources employees will not only be held to the same standards as other management personnel, they are typically viewed with greater scrutiny. A “they should have known better” dynamic develops, if not in the eyes of judges, then certainly in the eyes of a jury. The stakes are higher for diversity executives and human resources as well. HR is often consulted in many employment decisions, or makes the ultimate hiring/firing/discipline decision. Under federal law, decision makers cannot be held liable for unlawful employment decisions. Not so under state and local laws, many of which have statutes or court decisions which allow for personal liability for unlawful employment decisions.

Further, human resources employees are often armed with an arsenal of information not typically available to other employees. They have access to pay and benefits information. They know how the company responds to discrimination claims, including the strengths and weaknesses of each claim. With this knowledge, they often make formidable partners with the EEOC or a private attorney.

One need not look far for examples. In June, FedEx Freight settled a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission to the tune of $115,000. FedEx’s employee relations manager allegedly turned down three qualified women for a human resources position at its Phoenix facility, favoring a male candidate instead. According to the EEOC, the FedEx HR department hired a male employee who did not have the posted education and experience qualifications, whereas all three female candidates did. Indeed, one of the women not selected previously held an HR position with a sister company of FedEx Freight. FedEx denied the allegations, but the settlement involving HR was highlighted in an EEOC press release.

Human resources was in the spotlight earlier in the year in a high-profile case in New York involving venture capitalist Christopher Burch. The plaintiff in that case, Jamie Ardigo, claimed that even though he is gay, he was fired as director of HR after he challenged his boss’ penchant for hiring “gay men and beautiful women.” Again the allegations were denied, but human resources was once again squarely in the limelight.

Even the agencies responsible for enforcing the nation’s anti-discrimination laws are not immune to attack. Indeed, in the EEOC’s 2011 fiscal year, it had 21 complaints filed against it related to allegations that it violated the very statutes it is charged with enforcing.

In August 2012, the Ninth Circuit Court of Appeals revived a lawsuit against the EEOC brought by Mary Bullock, a former EEOC administrative law judge. In that case, Bullock alleges the EEOC discriminated against her in failing to accommodate her disability of multiple sclerosis and systemic lupus. Further, Bullock alleges that after she complained about the discrimination, the EEOC retaliated against her. Although the EEOC has denied any wrongdoing, the allegations highlight the challenges employers face.

The lesson here: human resources, diversity executives, and in-house counsel are charged with keeping a watchful eye over their flocks to avoid discrimination issues. Ironically, this makes them particularly vulnerable to attacks related to their own employment decisions.

Employers should link HR with other operational staff to ensure employment decisions are governed by checks and balances like any other division of a company.

Rebecca P. Bromet is a partner at law firm Seyfarth Shaw. She can be reached at editor@diversity-executive.com.