Tag Archives: diversity

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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Workplace Culture and Psychological Safety


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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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How Trends in Corporate Governance Vary for Smaller Firms


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Flickr photo from reynermedia on Creative Commons

I work mostly with smaller organizations, especially family-run companies, but I’m interested in corporate governance trends at larger institutions. I’ve written before about why privately held companies might want independent boards of directors. What is good for large institutions is often also helpful in small companies. And sometimes smaller organizations are ahead of stagnated large companies—they can change more rapidly when the need arises.

Here are some recent trends in corporate governance, together with how I think the trends may work differently in large and small companies:

  • Focus on independence and diversity

The Council of Institutional Investors (CII) states in its Corporate Governance Policies that at least two-thirds of a board’s members should be independent. Most small businesses rely primarily on company management to serve as directors. When most of the shareholders are also managers in the organization, this makes sense.

However, as a business grows, a focus on independence becomes more important. Large institutional shareholders will demand a voice on the board, and their opinions might or might not agree with what management wants. Because shareholders are the ultimate decision-makers, their voices should decide who is on the board.

Diversity may or may not be a focus in both large and small companies. Public sentiment desires more diversity in corporate decision-making, and greater racial, ethnic and gender diversity can keep consumer products, entertainment, and other companies with a public base more in tune with its customers. However, shareholders at some institutions may feel less strongly than others.

Here is another trend where small and large companies may diverge. Shareholders at family-run companies are more likely to want continuity and consensus than larger companies with institutional owners. Board diversity is particularly likely to be important where the shareholders are public entities, such as government worker pension plans or universities.

  • More scrutiny of the board, through self-assessment and shareholder assessment

The U.S. National Association of Corporate Directors (NACD) recommends that the Governance Committee of boards should have a process to routinely assess its own performance, the performance of its Committees, and its individual directors. Moreover, a Nominating and Corporate Governance Committee is one of three standing committees—along with an Audit Committee and a Compensation Committee—that the NYSE requires be composed entirely of independent directors.

This self-assessment is a growing trend in corporate boards. Along with self-assessment is an increased scrutiny of the board by institutional shareholders. With only independent shareholders on the governance committees of publicly traded companies, these large shareholders have the opportunity to assess the board and make changes when necessary.

At smaller and privately held companies, self-assessment and shareholder assessment may be less rigorous. But all companies should develop some form of board member assessment. For these smaller companies, it might be an outgrowth of internal succession planning and leadership development.

  • Increased transparency and disclosure

Along with board assessment comes the need for transparency in board activities. Shareholders cannot assess what they cannot see. The NACD expects boards to disclose sufficient information to shareholders to enable them to assess whether the Board is functioning effectively.

What is sufficient information will vary from organization to organization. In larger organizations, what is material to the company’s functioning will be much greater than at smaller companies. But as the number of independent board members increases and there is less involvement of management directors (who presumably know what is going on internally), the amount of disclosure will increase.

  • Attention to a broader array of risks, such as cyber-attacks

It used to be that boards only needed to worry about the corporate balance sheet and CEO succession (and they could avoid the succession issues for years at a time). However, in today’s environment, cyber-crimes will only become more sophisticated, and every organization needs to consider its vulnerabilities, along with those of its suppliers and customers.

Now, not only must directors focus on financial threats, but other existential risks as well. These risks might come a wide variety of causes even beyond cyper-attacks—natural or environmental disasters, terrorism, and public relations debacles.

A good board of directors at any institution, large or small, thinks about these threats. Each organization will need to undertake its own risk assessments, then educate its board of directors about its conclusions.

* * * * *

Flickr photo from thetaxhaven on Creative Commons

Flickr photo from thetaxhaven on Creative Commons

Institutional investors at large organizations will continue to demand greater influence not only on financial strategies, but also on risk assessment and board member assessment. As these demands grow, shareholders at smaller organizations, including family-run companies, need to analyze what makes sense in their companies.

Furthermore, managers interested in developing themselves to be board members someday—regardless of the size of institution on whose board they might serve—would be well served to educate themselves in these areas of corporate governance. To be a serious candidate for any corporate board, an individual needs to be savvy about what shareholders expect in today’s environment.

What other corporate governance trends do you see? Which trends that I mentioned do you think are most important?

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Diversity in Universities and Beyond


VOTE – Early or on November 6, but VOTE!The world is full of new tragedies every day—suicide bombers and machine gun attacks on several continents, refugees streaming across borders, and natural disasters from floods to ice storms to hurricanes. Yet some days recently, the front page story has dealt with complaints of racism on university campuses. From Amherst to Claremont McKenna, from Mizzou to Yale, students protest what they see as institutionalized racism and lack of inclusion.

Racism in our society is an important topic and deserves attention. College faculty and administrators who do not take complaints seriously are doing their institutions—and their students—a disservice. Universities are no different than other institutions, such as corporations, police departments, and military units. Many organizations have faced complaints of racism and sexism and other discrimination and have had to change their attitudes and policies to manage the problem. Protests are often necessary to bring about change.

And yet university campuses should be places where opposing viewpoints can live, if not in harmony, at least in juxtaposition. The word “university” is derived from the Latin “universus,” meaning “the whole.” If a university cannot at least provide a forum for all perspectivies, it does not deserve the name. The word “diversity” means “variety,” and institutions claiming to support diversity must be open to a variety of opinions.

I am not excusing racist remarks. I am not shrugging at harassment of anyone. I am not approving of faculties or workplaces that do not include minorities or women or other underrepresented groups.

But I am suggesting that universities are not places where students should feel comfortable all the time. I am suggesting that everyone—students and faculties and administrators—should be open-minded in listening to opposing viewpoints and in conversing civilly when perspectives vary. Part of obtaining a university education is a broadening of one’s outlook on the world and its problems.

It’s not just conservative politicians that can’t find a place to speak on college campuses. Stand-up comedians also feel they cannot perform on campuses, out of fear someone will complain about being offended. It seems the pendulum of “political correctness” now swings too narrowly. Any speech too far from liberal righteousness must be quashed.

Yet this attitude cannot continue in light of the broad protections granted to freedom of speech under the First Amendment, which must be preserved on public college campuses.

One of the best articles I’ve seen on this topic was written by Mary Sanchez of The Kansas City Star. On November 16, 2015, she wrote an opinion piece entitled, “By focusing their protests, KU students can be vocal and effective,” regarding student protests at the University of Kansas.

Ms. Sanchez differentiated between micro-aggressions and racism. Micro-aggressions are wearying for those who experience them often, but racism occurs when that lack of understanding becomes institutionalized to the detriment of some group. Those are the issues on which protesters should focus to be effective.

She suggested that students cull their fifteen demands into those that were most important and focus on those. She said:

“Pick a few doable, impactful items. Then study them for all their nuances and tentacles.”

She also compared the university to corporate settings, and wrote:

“’Diversity’ never works unless the top people, the decision-makers holding the purse strings get behind it. Middle managers, (as the people who will carry marching orders forward) are crucial. Middle managers will implode the best-intended policy unless they buy into it. Who is the equivalent in a college setting — the regents, second-tier administrators, the deans? Figure it out for your campus.”

In addition to businesses providing a lesson to campus protesters, the campus protests can offer a lesson for businesses as well. The University of Missouri situation came to a head when the football players refused to practice or play until certain issues were addressed.

Every organization has segments that have more influence than others. Who are the football players in your organization—the visible, influential groups that, if aligned against the institution, can damage it? Be sure you address the concerns of those groups.

Let’s use the campus protests as an opportunity for dialogue, not as an excuse to shut down communication.

Where does your organization draw the line between permitting opposing viewpoints and protecting against offensiveness?

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We Race Together or We Race Apart


In the last week I’ve read several articles discussing race relations in the United States.

First, the Starbucks “Race Together” campaign has been in the news quite a bit. Howard Schultz, CEO of Starbucks, explained in a statement on the company website:

[‘Race Together’] is an opportunity to re-examine how we can create a more empathetic and inclusive society — one conversation at a time.

Despite this idealistic intent, both liberals and conservatives have dumped scorn on the Race Together campaign. Liberals mock it as capitalizing on the oppressive experiences of minorities to sell coffee. Conservatives mock it as not the province of a retail organization, which should focus only on satisfying customers.

So which is it—an attempt to increase profits or a failure at customer service? I doubt it can be both.

I tend to give Starbucks the benefit of the doubt. I think that the CEO’s heart was in the right place in launching this initiative. If we don’t talk about race, how will we improve race relations? And we might each ask ourselves, as apparently Starbucks employees did, “if I don’t start the conversation, who will?”

As Mellody Hobson, a Starbucks board member and an African-American, said,

Race today is still one of the most controversial and uncomfortable issues to discuss in America. . . . Let’s face it, racial discrimination is a long-standing problem that has plagued our country for centuries. But we all know the first step in solving a problem is to stop hiding from it.

After admitting that talking about race can be uncomfortable, Ms. Hobson continued:

It is time for all of us to get comfortable with an uncomfortable conversation about race—black, white, Hispanic, Asian, male, female—all of us.  If we truly believe in equal rights and equal opportunity, we can’t afford to be colorblind.  We have to be color brave.  We need to confront issues of race and diversity with courage, honesty, and understanding.

So how do we become “color brave”? Not by ignoring the problem, and not by ridiculing those who approach it differently than we might.

A second race relations article I read recently was a review in the Wall Street Journal of Shelby Steele’s new book, Shame. See “Shelby Steele’s Thankless Task,” by Joseph Epstein, March 20, 2015.

Mr. Steele is the son of a white mother and black father and grew up in a black neighborhood near the South Side of Chicago. Mr. Epstein writes of Mr. Steele:

He has described his biracial birth as “an absolute gift, the greatest source of insight and understanding. . . . [because] race was demystified for me. I could never see white people as just some unified group who hated blacks.” Although he doesn’t say so, being biracial has also allowed him insight into the hypocrisy of both blacks and whites on the subject of race.

I have heard biracial friends and blacks in interracial marriages make similar statements, as if it takes the closeness of family to overcome the racial prejudices society imprints on us.

Mr. Epstein summarizes Mr. Steele’s philosophy:

What distinguishes him is his openly stated belief that blacks in America have been sold out by the very liberals who ardently claim to wish them most good. He regrets that affirmative action, multiculturalism and most welfare programs purportedly put in place to show racial preference, far from liberating black Americans, have failed to advance their fortunes.

As I read this, what came to my mind was how, despite their similar birth circumstances, Mr. Steele came to a very different philosophy than another man born to a white mother and black father, Barack Obama.

Which brings me to a third race issue I read about this week—white privilege. See “Why White People Freak Out When They’re Called Out About Race,” by Sam Adler-Bell, on Alternet.org, in which he interviews Robin DiAngelo, professor of multicutural education at Westfield State University.

Professor DiAngelo has taught about white privilege and other race issues for years. She described “white privilege” and the perspective it brings to Mr. Adler-Bell as follows:

from the time I opened my eyes, I have been told that as a white person, I am superior to people of color. There’s never been a space in which I have not been receiving that message. . . . We are born into a racial hierarchy, and every interaction with media and culture confirms it—our sense that, at a fundamental level, we are superior.

And, the thing is, it feels good. Even though it contradicts our most basic principles and values. So we know it, but we can never admit it.

And that inability to admit the existence of white privilege sets up

. . . this kind of internal stew . . . . We have set the world up to preserve that internal sense of superiority and also resist challenges to it. All while denying that anything is going on and insisting that race is meaningless to us.

As a result, whites have difficulty talking about race. Professor DiAngelo uses the term “white fragility” to describe

a state in which even a minimum amount of racial stress becomes intolerable, triggering a range of defensive moves. These moves include outward display of emotions such as anger, fear and guilt, and behaviors such as argumentation, silence and leaving the stress-inducing situation.

There is a moral dissonance, because we know we are not superior to people of color, yet receive society’s constant messages that we are. She told Mr. Adler-Bell:

For white people, their identities rest on the idea of racism as about good or bad people, about moral or immoral singular acts, and if we’re good, moral people we can’t be racist – we don’t engage in those acts. . . .

In large part, white fragility—the defensiveness, the fear of conflict—is rooted in this good/bad binary. If you call someone out, they think to themselves, “What you just said was that I am a bad person, and that is intolerable to me.” It’s a deep challenge to the core of our identity as good, moral people.

So how do we learn to talk about race in ways that do not make anyone seem good or bad, accusatory or defensive, victim or persecutor?

Hands touching a globeOne conversation at a time. Between people who are willing one more time to put aside their defensiveness. Between people who are willing to listen with hearts and minds, who will look at the other as an individual and not as a representative of a race.

None of us is qualified to represent an entire race’s point of view. There is no reason I should expect Barack Obama and Shelby Steele to have the same outlook on life, just because of their parentage.

We can each only represent our own point of view. But because we each only have a single point of view, we have an obligation to listen to others on the subject—others like ourselves and others different than ourselves. We have an obligation to seek out opposing points of view.

The Starbucks “Race Together” program and Professor DiAngelo’s white privilege lectures are two brave ways to tackle the issue of race relations in this country. Both are difficult to do well, because most of us are not skilled in talking about race. Perhaps for that reason, these are necessary. Perhaps for that reason, we should not mock them.

What experiences have you had that taught you the most about diversity?

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Who Must Raise the Topic of Religious Accommodation in the Workplace?


A&F logoI wrote recently about religious accommodation, but the Supreme Court arguments in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., last week keep this issue top of mind. The Abercrombie & Fitch case is one where I have sympathy with both the applicant and the employer.

The issue in this case is whether an employer has any duty under Title VII of the Civil Rights Act of 1964 to try to accommodate an employee’s or applicant’s religious practices if the employee or applicant doesn’t directly request an accommodation. In this case, a Muslim woman, Samantha Elauf, interviewed for employment with Abercrombie & Fitch wearing a hajib. Whether or not she was Muslim did not come up during the interview, but the employer assumed she was Muslim and decided not to hire her, because her appearance did not fit the “look” it wanted for sales employees in its stores.

hijabIt is a shame that this case has reached the Supreme Court. By all accounts, Ms. Elauf has had a successful career since Abercrombie & Fitch rejected her application. Most likely, Abercrombie & Fitch lost a good prospective employee by making a decision without discussing accommodation with this applicant. In fact, Abercrombie & Fitch later changed its policy to permit sales employees to wear hijabs, so the whole lawsuit might have been avoided had the issue been addressed before the retailer rejected Ms. Elauf’s application.

I am sympathetic to the applicant, because I believe that religious practices should be accommodated. As I stated in my February 16 post, this nation was founded to permit a diversity of religious beliefs, and we should give each other a little space to make that happen. The “look” policy, if strictly applied with no flexibility, might not have been the best practice from either a customer service or an employment perspective.

With respect to the specifics of the case, the hiring managers at Abercrombie & Fitch correctly perceived Ms. Elauf’s hijab to be an indication that she was Muslim. Therefore, the Supreme Court could easily rule that the employer should have done more before rejecting the applicant. The company should at least have raised the issue, as the EEOC argues. However, the challenge for the Court might be to do justice to Ms. Elauf without issuing broad rules of law that go beyond the intended scope of Title VII and could make managing a business more difficult.

There are many reasons why the employer’s position is also sympathetic. In my opinion, particularly for customer-facing employees—which retail sales employees are—an employer should be able to set appearance standards. Moreover, placing the burden on the employer to determine whether there might be a religious practice at stake, as the EEOC argued, goes beyond the capability of many hiring managers. How is any particular manager supposed to be aware of all religious practices—for example, whether a particular tattoo is religiously based or simply a style that an applicant likes? It is much more likely that the applicant will recognize when his or her religious practices might be an issue than that the employer representative will.

Moreover, many employers are legitimately concerned about mentioning religion at all during a hiring interview. Whether the applicant is or is not of a particular religion, the employer opens itself up to the possibility of a discrimination claim for “perceiving” the applicant to be of a protected group. Most Human Resources personnel and other management representatives have been carefully trained to avoid bringing up religion unless and until the employee does, and even then to handle the situation gingerly.

Also supporting the employer’s position in this case is that the standard for religious accommodation under Title VII has traditionally been quite low. Unlike under the Americans with Disabilities Act, where “reasonable accommodation” has placed some significant burdens on employers, under Title VII the only accommodations required have been those that do not impose more than a “de minimis” burden on the employer. So, even if Abercrombie & Fitch had raised the issue of Ms. Eleuf’s hijab, the retailer might not have had to change its “look” policy to accommodate her.

Nevertheless, it is quite possible, as the EEOC argued here, for the employer to have policies and procedures that the applicant does not know about—such as Abercrombie & Fitch’s “look” policy. It does not seem fair to make the applicant raise the issue of religion because there might possibly be a problem that the applicant knows nothing about. If employers do not need to discuss religion, why should applicants?

Thus, keeping the focus on the job—as Justices Sotomayor and Alito seemed to suggest during oral argument—might well be a workable solution. The hiring managers’ questions can ask about the job requirements and whether the applicant sees any problem performing them. Then, if religion might be an issue, the applicant can tell the employer what his or her religious beliefs require.

My advice to hiring managers was always to keep the focus on the job requirements.

How have you dealt with religious accommodation issues in the past? How do you feel about the issues raised in the Abercrombie & Fitch case?

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