Jan 03, 2012

Will the 2012 Elections Make A Difference

By: Paul Ebeltoft

Last night, Gail and I attended a very nice party. The food was good, the crowd diverse. The conversation was … well, somewhat distressing. “I am already tired of the elections,” one party-goer said. “I’d like to just sit this one out.” “Whoever runs, our vote in North Dakota won’t make a difference anyway,” another chimed in. Most disturbing was the pride with which a middle-aged man told me that, “I’m not interested in politics. It’s just a nasty game.” These people “might as well say, ‘I’m not interested in my standard of living, my health, my job, my rights, my freedoms, my future, or any future.’”¹

Yes, it’s 2012. It’s an election year. The results of the election will affect the workplace – your workplace. Count on it. Human resource professionals cannot afford to sit this one out.

What can HR expect from the 2012 elections?

Already pundits are lining up to predict what will happen if candidate “x or y” is elected or candidate “z” is re-elected. There seems to be some consensus forming that, regardless of who is elected nationally, human resource professionals can expect change in the laws affecting admittance and employment of foreign nationals. The consequences of employing illegal aliens or of violating terms of permitted presence on U.S. soil will also be hot-button legislative and enforcement issues according to some prognosticators. Most suggest that the ballot box will determine whether the already partially effective health care reform law will continue to be implemented or be rolled back in whole or in part.

Bringing an HR focus to the 2012 debate

As important as these issues might be to human resources professionals, and to all Americans, I propose a different discussion. I suggest that all candidates be asked to describe the appropriate balance between regulatory enforcement and agency assistance. Stated in the HR context, the question is: “Do you believe the EEOC should direct the bulk of its resources to investigation, recovery of fines and imposition of penalties or should it emphasize training about the laws it enforces?” To refocus the question, simply substitute the “North Dakota Department of Labor,” the “City Fire Inspector” or any other local, state or federal regulatory agency for the “EEOC.”

I believe that candidates for local, state and federal office owe us their honest opinions. The question does not require a choice between enforcement and education. It does require thoughtful exposition of the relative importance of each.

This discussion makes a difference to the HR Professional

According to a November 15, 2011 press release from the EEOC, the EEOC received a record 99,947 charges of discrimination in fiscal year 2011. This means that approximately 1 out of every 1500 workers in America complained of unequal treatment in the workplace because of their status as women, their religion, their race, or because of membership in some other protected class irrelevant to their job performance. This statistic does not include state-filed claims or other job-related claims not handled by the EEOC.

Should the EEOC view this startling statistic as a call to provide more instruction and help to employers on how to discover risks that could spark a claim and to correct them? Should the numbers argue in favor of more training to managers and co-workers on what constitutes discrimination in the workplace? Or does nearly 100,000 claims, a 46-year record, mean that the EEOC needs more enforcement personnel? Should it file more administrative charges of wrongdoing to deter future misconduct? The extent to which your job in human resources will be changed is the extent that EEOC funding and mindset favors enforcement over guidance and consultation; favors remedying consequences over preventing underlying causes of wrongdoing.

Do not misunderstand. Most lawyers, I think, believe that enforcement is a legitimate administrative activity. Righting wrongs to which an employer turned a blind-eye, prosecuting “pattern or practice cases” and litigating the claims of large numbers of employees whose rights may be found in the spaces occupied by current statute and case law are legitimate enforcement projects for the EEOC to undertake. Most will not object to tough-minded EEOC lawyers rooting these out of the workplace or working to clarify the reach of the law.

On the other hand, we all know that HR files are not perfect. We all know that our best-intentioned employees sometimes make mistakes. We all know that progress to a discrimination-free workplace is incremental. If an agency of government views the mere existence of a charge as a license to project wrongdoing into the fabric of a company, if an agency makes each claim an inquisition, most of HR’s time will be spent fending off the investigatory dogs, not improving the workplace.

It is my opinion that the EEOC’s primary work should be to help employers prevent discrimination from occurring in the first place. It is my opinion that the investigation of a claim should be neutral and transparent, with both the claimant and the employer knowing, in advance, the steps to be taken by the EEOC, their respective rights at each investigatory milepost, and the progress of the investigation along the way. If the investigation discovers an employer misstep, the results of the investigation should include, in addition to relief for the claimant, recommendations to make the workplace compliant.

Perhaps you disagree. Many people do. Let me know if you are among them. At the same time, enter the arena of public discussion as a human resource professional. Try your best to find out where candidates stand. Having principled discussion is a purpose of electoral politics. The vice will be if the discussion is not had at all.

Reprinted with permission from an article submitted for publication in the January, 2012 Southwest Area Human Resource Association newsletter.

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