Category Archives: Diversity

Favorite Firings: Stray Discriminatory Comments by Management Complicate Litigation


operation-540597_1280In the Wolters Kluwer Legal & Regulatory newsletter for December 4, 2017, there were three cases reported that dealt with comments by management personnel about employees. In each case, when the employee sued, the employer was unable to get past a motion to dismiss or a motion for summary judgment. Thus, in all three cases, the company faced lengthy litigation that might have been avoided, had managers been more careful with what they said.

THE FACTS:

In Creese v. District of Columbia, Case No. 16-2440 (RMC), D.C.D.C., Nov. 11, 2017, a corrections officer alleged that he was fired because he was not “manly” enough. His supervisor had made a few comments such as, “[n]o pretty boys needed in jail, so you need to take your earrings out.” The judge found that plaintiff produced enough evidence of impermissible gender stereotyping to survive a motion to dismiss his Title VII and Section 1983 claims.

In Sestak v. Northwestern Memorial Healthcare, Case No. 16-C-6354, N.D. Ill., Nov. 28, 2017, plaintiff Sestak, a labor and delivery nurse, alleged age discrimination after she was discharged for cause. She claimed that an unidentified individual stated that “older nurses would have difficulty” complying with new guidelines because older nurses “are too slow and spend too much time with patients” and that one of her supervisors stated that “older nurses’ often have difficulty understanding when the mother and baby become separate patients.” The court denied the employer’s motion for summary judgment.

In Carter v. A&E Supported Living, Inc., Case No. 16-00574-N, S.D. Ala., Nov. 29, 2017, a nurse was removed from the shift schedule at a group home for intellectually disabled individuals and then sued for pregnancy discrimination. She cited supervisors’ comments to her as evidence that she was removed from her work schedule because of her pregnancy and/or the related “high risk” conditions that the supervisors believed her pregnancy presented. One supervisor stated plaintiff “was at risk to be hurt and [she] didn’t want that for her or her unborn child, for her baby; nor did [she] want to put the people that [the employer] serve at risk…” Plaintiff was required to provide medical documentation that it was safe for her and her unborn child for her to perform the duties of her position. The judge denied the defendant’s motion for summary judgment.

THE MORAL:

The general legal standard is that stray comments in the workplace do not automatically lead to violations of the discrimination laws. However, they can be evidence of a discriminatory intent. And, of course, the more egregious and frequent the remarks, the more likely courts are to find liability. I’ve written other posts (see here and here and here) about how supervisory comments can get their employers into trouble.

In each of these cases, the employer put forth nondiscriminatory reasons for the actions taken against the employee. But the existence of the supervisors’ comments about pregnancy or gender or age complicated the cases enough to let the judges refuse to grant the defendants’ dispositive motions. The employers may end up winning these cases, but they face lengthy and expensive litigation before they do. Settling the cases may prove to be the better option.

Moreover, in the environment we face today, with heightened sensitivity toward sexual harassment and discriminatory remarks, employers would be well advised to re-emphasize the need to avoid even casual comments about employees’ health, appearance, and any other topics that might touch on a protected status.

It’s a shame that we must be so careful in the workplace and avoid many topics of everyday conversation, but it’s the safest course. As demonstrated by these three cases decided by different courts in recent weeks, supervisory comments continue to present litigation challenges to employers. It is best to involve Human Resources and lawyers if there is any question about what topics are permissible to discuss.

What’s your opinion on the current state of conversation in the workplace?

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Coping with Implicit Bias in Mediation


workplace-1245776_640A few weeks ago I attended a training program for mediators on implicit bias. As the presenter said, we all see every situation we encounter through the lens of our own experience. That’s what gives rise to implicit bias.

One definition I’ve seen of “implicit bias” is “a term of art referring to relatively unconscious and relatively automatic features of prejudiced judgment and social behavior.” This sounds bad, but the presenter at the training program made it clear that he did not think implicit bias is bad or wrong or morally repugnant. In his opinion, implicit bias isn’t the same as prejudice. It is simply the lens through which we see the world. We can’t escape it, but we should be aware of it.

Whether it has a moral dimension or not, implicit bias does impact every step of dispute resolution. To begin with, our view of the world colors how we interpret the events that happen to us. Moreover, the lens through which we see events stirs up different feelings and reactions about what happened in each person involved—each one of us sees the world differently.

So what should mediators do about implicit bias?

Recognize and Manage Your Own Implicit Bias.

The first step in dealing with implicit bias is to be aware of it. As mediators, we should reflect in advance what aspects of the case might trigger our own emotions, as well as those of the parties. We need to be mindful of our own hot spots.

We can prepare ourselves before a mediation by setting aside our own problems and concerns, so that we can address the parties’ needs. Some mediators engage in other physical activity before mediating. Others practice meditation or other mindfulness exercises. The point is to open our minds to being empathetic to people who come from different perspectives than we do. We need to be ready to engage the parties where they are, and not where you are.

Mediators are supposed to be neutral and impartial. Managing our own implicit bias is critical to our value to the dispute resolution process.

Recognize and Manage the Implicit Bias of the Parties.

The next step is to understand others’ perspectives. As mediators, we need to manage the process and not let the parties act vindictively. But it is important to let their emotions into the process. Let the parties tell their stories.

Asking questions in a calm and respectful manner is a good way to determine what biases each party (and each attorney) brings to the dispute. Sometimes, the parties are less of the problem than their lawyers, so it might be necessary to explore the attorney’s perspective as well as his or her client’s .

As mediators, we have to assess whether it is more productive to have these probing conversations in a joint session or in a caucus. If the parties are working well together, it can be more effective to let each person tell his or her story, then ask the other “Does that ring true for you? If not, why not?” But if they are not behaving respectfully, or if emotions rise out of control, then separation is probably best. Then, however, the mediator must act as the interpreter of the story to the other side . . . which risks bringing our own biases into the discussion.

The key to dealing with implicit biases is to treat them as an unavoidable part of the equation. They aren’t good or bad, they are just another set of variables that will impact the process and the result. Remember that mediation is designed to let the parties resolve their own conflict—biases and all.

When has your implicit bias impacted a dispute you were trying to resolve?

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Alpha Dogs and Leadership


dogs-1231010_1280Because this blog was on hiatus all summer, I didn’t comment on the political stalemates and morasses during those months. And I’m not going to comment directly on the ongoing issues today. But what I saw over the summer—and what I continue to see this fall—reminds me of a situation I encountered many years ago involving “alpha dogs” in a corporate setting.

My work group attended a gender diversity program sometime in the mid-1990s. I was not in management at the time; I was one of several individual contributors who ranged widely in seniority. I was in the middle of the pack at the time.

One of the comments about gender differences that the facilitator made during this gender diversity session was that men often try to be the “alpha dog” in a meeting by one-upping the other men in the room. Women, on the other hand, care less if they are seen as the highest power in the room. (Keep in mind that this program took place decades before Sheryl Sandberg’s “Lean In” philosophy became vogue.)

I might have forgotten this “alpha dog” comment, except that a few days after the diversity program, I was talking about it with a male colleague, one of the more senior employees in our group. He freely admitted, “That’s why I have problems with [our male boss]. He and I both want to be the alpha dog.”

I thought about it. He was right—these two men did both try to be top dog. And trying to be the alpha dog wasn’t working for my colleague, because he didn’t have the corporate authority to pull it off. He wasn’t the boss, but he often tried to be.

I made a deliberate decision. As a fairly young and introverted female, seeking to be the alpha dog wasn’t going to work for me either. Therefore, I would consciously act like I was NOT the alpha dog. I would not overtly try to one-up other people I encountered in the workplace. I would defer to others intentionally. I would seek to provide good service to my colleagues and clients, rather than to command them. That didn’t mean letting others step all over me, but it did mean not being arrogant or seeking top billing on projects.

I’ve written before about “servant leadership,” a philosophy that advocates leading by serving others. I didn’t hear of that concept until ten or more years after the 1990s gender diversity program, but it resonated with me when I learned about it.

How did servant leadership work for me?

Generally, it worked well, at least through the middle years in my career. Over time, there were more and more times when I had to take command and make decisions. And occasionally, I didn’t get as much credit for my work as I thought I should have. But those times were less frequent than one might expect.

However, there were times after I moved into senior corporate roles when more of a command approach might have worked better. There were definitely people—mostly men, but a few women—who took advantage of my understated approach or who thought me weak. I could usually deflect them by being the best prepared person in the room, but there were a few jerks who only understood power, who only thought highly of other “alpha dogs” and sought to be the “alpha dog” with everyone except the CEO. They were never my favorite people, but sometimes I did have to flex my style to deal with them effectively.

dogs-1231008_640Unfortunately, many of today’s leaders—particularly the partisans on both sides of the aisle in Washington—seem to be of the “alpha dog” mentality. One-up-man-ship is all they understand. And so our nation has become increasingly polarized. If more of them would exercise servant leadership, we would all be better off.

What leadership style have you generally used? When have you had to flex your style?

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Favorite Firing: Do Not Terminate a Disabled Employee Without a Reasonable Accommodation Dialogue


EEOC sealBack in May 2016, Lowe’s, the home improvement store giant, agreed to pay $8.6 million to settle a lawsuit brought by the EEOC over Lowe’s firing of many individuals with disabilities when they exceeded the maximum amount of disability leave Lowe’s provided. The problem, as the EEOC saw it, was that Lowe’s failed to engage in reasonable accommodations beyond the standard disability leave policy. See U.S. Equal Employment Opportunity Commission v Lowe’s Companies, Inc., et al., C.D. Ca., Case No. 2:16-CV-03041-AB-FFM.

The Facts: This lawsuit began with three charges of disability discrimination filed by three employees of Lowe’s back in 2007 and 2009. These three plaintiffs alleged that Lowe’s violated the Americans with Disabilities Act (ADA) by terminating their employment when their medical leave of absence exceeded Lowe’s 180-day (later extended to 240-day) maximum leave policy. The plaintiffs claimed that failure to engage in any discussion about further accommodations beyond the maximum leave violated the ADA. They wanted extended leaves of absence as a reasonable accommodation.

The EEOC agreed with the plaintiffs and also claimed that thousands of other Lowe’s employees were in the same situation. The EEOC ultimately filed a lawsuit in the Central District of California, the terminated Lowe’s employees were found to be a suitable class, and the case proceeded as a class action.

It was settled in May 2016, and the Court approved the settlement on May 12, 2016. (A copy of the Consent Decree can be found here.) Lowe’s admitted no wrongdoing, and the Consent Decree is not an admission. However, the company did agree to settle the lawsuit for $8.6 million and also consented to comply with a variety of non-monetary provisions. Lowe’s agreed to contact the terminated employees in the class and pay their damages out of the $8.6 million fund, as calculated by the EEOC, and to donate the remainder (if any) to non-profit organizations benefiting the disabled.

Lowe’s also agreed to amend its policies so that it would “engage in the interactive process with any employee with a disability who requests leave as a reasonable accommodation.” And the company agreed to retain Equal Employment Opportunity consultants approved by the EEOC for four years. These consultants will advise on policies, track all requests for accommodation, and educate managers on their duties under the ADA.

The Moral: There are few bright lines when it comes to working through disability situations. If an employee requests an accommodation, the employer ignores that request at its peril. A firm policy regarding leaves of absence is no longer a firm policy—exceptions must be at least considered if the employee claims to be disabled and to need more time away from work.

When the ADA was first enacted in 1990, I worked with managers to parse through how to simultaneously comply with disability leaves, worker’s compensation laws, absence policies, and the like. The situation grew even more complex with the passage of the Family and Medical Leave Act in 1993. I used to tell managers to stack up all the applicable laws and policies like slices of Swiss cheese. Only if an employee’s situation fit in gaps in every layer could the employee be discharged with minimal risk.

What the Lowe’s case shows is that some of the legal layers have no gaps—all employees requesting a reasonable accommodation should at least be given consideration, and an employer cannot have a blanket rule prohibiting certain accommodations. The EEOC will not accept any mandatory maximum leave policy.

The Lowe’s case is also interesting because of the broad relief granted pursuant to the Consent Decree. The provisions in the Lowe’s decree are the types of relief that the EEOC is likely to seek in every disability case it decides to take to court. Employers should consider whether and when accepting these types of interference in their business are worth disposing of a lawsuit, particularly a large class action case of the type that Lowe’s faced. It doesn’t take a loss in court to cause upheaval in the business; settlement can also be onerous.

It is best, therefore, to avoid as many lawsuits as possible. Therefore, engage in an interactive reasonable accommodation dialogue, document that engagement and all options considered, and be clear on why the employee’s requested accommodation is not reasonable and would constitute an undue hardship on the business.

When have you dealt with a difficult reasonable accommodation case?

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Bad Networking Advice to Young Women Professionals & Seven Better Ideas


gear-67138_1280A young woman I’ve been mentoring for a few years told me about a women’s professional forum she recently attended. She is not the type who sees gender issues in every office interaction, and, in fact, she didn’t have much interest in attending this women’s forum.

I come from an earlier generation. As a young female attorney thirty years ago, I was glad of opportunities to speak with older women about how they had handled problems in the workplace and in balancing work and home activities. I appreciated the stories they told of how they coped—with clients, with colleagues, with managers.

The working world is a (mostly) easier place for women now than thirty years ago. But I still believe there is a need for senior women to mentor more junior women. We can all benefit from hearing how people like us have survived and thrived in difficult circumstances—and every career has its share of difficult circumstances.

But some of the advice given at women’s forums is appallingly bad. At the conference my young friend attended, there was a session on networking. Many of the young women in attendance expressed their discomfort with the small talk that networking requires and wanted to know what to talk about.

What were they told? Compliment the women on their hair and shoes; talk to men about sports.

Why would senior women perpetuate this stereotyped view of men’s and women’s interests? Why would experienced women professionals tell their younger colleagues to focus on women’s appearance?

It so happens that my friend is a better athlete than most of her male peers. It so happens that if men were given similar advice—talk to men about sports and women about hair and shoes—they would risk charges of sexual harassment.

Why are we still segregating men and women with the advice we give them?

Here are some much better conversation openers:

1. When meeting someone at a conference, ask what they thought of the last speaker. Or if the introduction takes place before the sessions begin, ask what they hope to get out of the conference.

2. Ask if they’ve ever been to this location before—depending on the circumstances, you could ask about the city, the hotel, or the conference center. Then ask follow-up questions about what they like or dislike about the venue.

3. Try to find shared experiences with the person you are trying to speak with. You can use their clothes as a clue—if you are a runner, ask a person in running clothes if they know of a good running route in the area. But I wouldn’t comment on the “cute top” they have on. If you’re not a runner, stay away from the topic. Remember, the point is to find shared experiences.

4. Another technique is to build empathy. If someone drops something, pick it up, and say, “They’ve given us way too much to carry here.” If someone looks like they’ve lost something, ask, “Can I help you find something?” Be friendly and helpful.

5. You can also find ways to let the other person shine—if they made an intelligent comment during a meeting, let them know, and ask another question on that topic.

6. Once the ice is broken, ask where they grew up. Perhaps you’ve been to that city or state and can take the conversation toward sights you’ve seen there. Or comment on what you’d like to see there. Or ask what they liked best about growing up in that location.

7. If nothing else, talk about the weather. It’s safe. Religion and politics are not, unless you’re at a meeting related to those topics.

But avoid conversation about hair and shoes and clothing and any other personal attributes. At least until you know them better.

Remember, if you couldn’t make the comment to someone of the opposite gender, it probably isn’t appropriate for any networking situation.

For a list of questions that might help (though some of these seem outlandish to me for a first meeting), try 48 Questions That’ll Make Awkward Small Talk So Much Easier, by Aja Frost at TheMuse.com. Even if these particular questions don’t work for you, it is a good idea to have some topics prepared in advance when you know you’re going to have to meet new people.

What bad networking advice have you heard over the years?

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Favorite Firing: When a Supervisor’s Actions Make a Termination Difficult to Defend


4th cirI am typically suspicious of lawsuits in which a plaintiff employee alleges every possible form of discrimination against his or her employer. It seems unlikely that an employer is motivated by many different forms of bias when deciding on a disciplinary action or termination—race and gender and age and pregnancy can’t all be the basis for the decision, can they?

And yet, when an employer and its supervisors screws up a case so badly with multiple derogatory statements over a lengthy period of time, and when they then fire the employee shortly after she complains about the harassing conduct, the case is likely to get heard on the merits and will cost the company a lot of money to defend.

Such a case, Guessous v. Fairview Property Investments, LLC, No. 15-1055 (4th Cir. July 6, 2016), recently came before the Fourth Circuit Court of Appeals. The Fourth Circuit reversed the lower court’s grant of summary judgment to the defendant, and now the employer must gear up for a trial.

The Facts: In Guessous v. Fairview Property Investments, LLC, Monica Guessous, a female Muslim-American bookkeeping assistant of Moroccan descent, sued her employer, a property management firm, after she was discharged. Her complaint contained multiple claims, including discrimination based on religion, national origin, and pregnancy, hostile work environment, and retaliation.

Shortly after she was hired by Fairview, Ms. Guessous began reporting to a new supervisor, Greg Washenko. She alleged that Mr. Washenko began making offensive remarks when they were first introduced, when he said he had previously worked with a “bunch of Middle Easterners and they are a bunch of crooks who will stop at nothing to screw you.”

As their work relationship continued, Mr. Washenko allegedly discussed Moroccans, Muslims, and Middle Easterners repeatedly in disparaging and offensive ways, and asked Ms. Guessous questions about Middle Easterners, about suicide bombers and other terrorist acts, and about Islam. When Ms. Guessous told Mr. Washenko that Muslims were not terrorists, Mr. Washenko responded, “Yeah, sure. Like my buddy says . . . not all Muslims are terrorists, but most are.”

The Fourth Circuit opinion goes on for pages about Mr. Washenko’s comments. According to the Fourth Circuit, Washenko consistently conflated Ms. Guessous’s identity as a Moroccan Muslim with other Middle Eastern identities, so that the court had difficulty determining whether his remarks related to race, ethnicity, national origin, or religion.

When Ms. Guessous became pregnant, Mr. Washenko didn’t want to grant her a three-month maternity leave, and she had to tell him she was legally entitled to a 12-week leave. When she returned from maternity leave, her work duties had been assigned to other staff. Two months later, she asked Mr. Washenko for her old duties back and complained about his past behavior. Just 75 minutes after this meeting, the company president asked Fairview affiliates if they had openings for Ms. Guessous, because Fairview did not have enough work for her.

Then Ms. Guessous was terminated in March 2013. She was told the company did not have work for her. Her responsibilities were transferred to an outside accountant and to Mr. Washenko.

The Moral: This case demonstrates several problems for employers.

First, of course, is the alleged behavior by Mr. Washenko. In summary judgment rulings, the facts must be considered in the light most favorable to the plaintiff—in this case, Ms. Guessous. It is possible that a judge or jury after a trial will find that Fairview did not discriminate against Ms. Guessous. But with the allegations described in the Fourth Circuit opinion, Fairview is facing an uphill battle on liability.

Second, the Fourth Circuit indicated that the fact that Fairview didn’t have work for Ms. Guessous was not sufficient rationale to defeat her claims of discrimination. The Fourth Circuit said that the lower court had granted summary judgment for Fairview solely because the company did not replace her after she was fired.

“The court offered no elaboration in its opinion, but its logic appears to have been that, because the work was absorbed by Fairview’s other employees, Guessous cannot show that there was enough work to justify keeping her on staff and she therefore cannot prevail. If that is, indeed, the court’s reasoning it is a fallacy: because Fairview has shown it could operate without Guessous does not mean that it would have done so absent the protected activity.”

Thus, once an employer or its supervisors have engaged in discriminatory or harassing behavior, a restructuring of duties to get rid of an employee is also discriminatory. It seems unlikely that an employer can show any evidence to defend itself in such a situation.

In this case, the facts were particularly egregious. As the Fourth Circuit said,

“A reasonable jury could easily conclude, however, that the termination decision was made only seventy-five minutes after Guessous’ complained to Washenko about past comments and treatment, and that it was therefore motivated by the complaint itself.”

Thus, the Fourth Circuit said that a reasonable jury could find that Fairview’s argument that it lacked work for Ms. Guessous was a pretext for discrimination.

The morals to this case, then, are that (1) employers, including all supervisors, should refrain from disparaging comments about employees’ national origin, religion, and other protected categories; (2) employers should provide employees with all mandated leaves and other benefits without question; and (3) employers should not respond to employee complaints by immediately doing away with the employee’s job.

More broadly, the moral of this case is that employers need to be sure that discussions in the workplace about political and newsworthy events remain civil and that no racial, ethnic, or other protected group is mentioned in disparaging ways. A good moral for us all to take to heart in the middle of this political season.

When have you encountered managers who behaved inappropriately?

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Workplace Culture and Psychological Safety


teamwork-383939_1920

Photo from Pixabay

One of the Human Resources topics I follow is workplace culture. I was struck this past week by an article discussing Google’s Project Aristotle, which analyzed what workplace culture best leads to high-performing teams. In this post, There’s No Quick And Easy Fix To Building A Successful Workforce, by Carol Anderson, April 26, 2016, on TLNT.com, the author discusses another blog post by Aamna Mohdin that concluded:

Google now describes psychological safety as the most important factor to building a successful team.

In short, just be nice.

See After years of intensive analysis, Google discovers the key to good teamwork is being nice, by
Aamna Mohdin, February 26, 2016, on Quartz.

Ms. Anderson disputed this conclusion, arguing that psychological safety and “niceness” are not the same thing. I agree.

I once worked in an organization where people were almost always “nice” to each other, but the important decisions did not get made, or did not get made in a timely fashion, or were not communicated effectively to the people who needed to know. In fact, “niceness” got in the way of good communications and decision-making. People were too afraid of hurting others’ feelings to make the tough calls and then explain their decisions to each other. The problem began in the executive suite and trickled down through most divisions in the organization.

According to a New York Times article entitled What Google Learned From Its Quest to Build the Perfect Team, by Charles Duhigg, published February 25, 2016, in Project Aristotle, Google realized it was important for teams to have norms and to communicate those norms.

The right norms . . . could raise a group’s collective intelligence, whereas the wrong norms could hobble a team, even if, individually, all the members were exceptionally bright.

But which norms made for the best teams? Google found two important behaviors that good teams shared:

First, on the good teams, members spoke in roughly the same proportion, a phenomenon the researchers referred to as ‘‘equality in distribution of conversational turn-taking.’’

. . .

Second, the good teams all had high ‘‘average social sensitivity’’ — a fancy way of saying they were skilled at intuiting how others felt based on their tone of voice, their expressions and other nonverbal cues.

To sum up these traits,

. . . all the team members speak as much as they need to. They are sensitive to one another’s moods and share personal stories and emotions. While [the successful team] might not contain as many individual stars, the sum will be greater than its parts.

In the Quartz article cited above, Aamna Mohdin summarized the Project Aristotle conclusions as follows:

the best teams respect one another’s emotions and are mindful that all members should contribute to the conversation equally. It has less to do with who is in a team, and more with how a team’s members interact with one another.

These traits are part of “psychological safety,” which has been defined by Professor Amy Edmonson of the Harvard Business School as:

a ‘‘shared belief held by members of a team that the team is safe for interpersonal risk-taking.’’

‘‘a sense of confidence that the team will not embarrass, reject or punish
someone for speaking up,’’

‘‘. . . a team climate characterized by interpersonal trust and mutual respect in which people are comfortable being themselves.’’

The reason that Carol Anderson believed that these conclusions have nothing to do with “niceness” is that

. . . psychological safety, at its root, means that team members feel comfortable to say what they need to say, because they trust that their team will not shut them down, humiliate them or otherwise ignore their words. It is about getting all of the issues on the table in an environment where the team members can focus on solving the problem rather than on being defensive.

As I noted above, “niceness” can in fact interfere with the communications necessary for good decision-making.

Psychological safety wasn’t the only norm found to be important in Google’s Project Aristotle—having clear goals and a culture of dependability were also important—but this safety was critical. And it has to be forged through experience and gaining trust in your team members.

In my opinion, the conclusions of Project Aristotle relate directly to diversity issues as well. As the NYT article by Mr. Duhigg describes, Google learned that

. . . no one wants to put on a ‘‘work face’’ when they get to the office. No one wants to leave part of their personality and inner life at home.

That feeling of leaving a part of one’s self at home is what many workplace minorities describe—whether their “difference” is based on their race, ethnicity, gender, sexual orientation, introversion, or any other category. A psychologically safe environment is critical to true progress on improving diversity in the workplace.

What difference has feeling a sense of “psychological safety” at work or lack of it made in your career?

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