“OK Boomer!” Is it Harassment?

For the last few years, we’ve been inundated by articles and conference speakers talking about “Generational Differences in the workplace”. A minority of the HR profession (me included, for example in this post I wrote over 6 years ago) pointed out that this was meaningless stereotyping and used the hashtag #GenerationBlah to mock those who persisted in promoting themselves and their products on the back of ‘why Millennials need different recruitment solutions’.

Just so we are all clear, there is no reliable evidence of ‘generational differences’, as this piece of research shows.

It did seem that this fad was dying away, overtaken by other flavours of the month. But it’s burst back into life with the current prevalence of the phrase “OK Boomer” as a generalised insult for older people – so much so that it’s now even entered political debate.

Why’s this an issue for employers? Well, depending on the context, it could constitute harassment under the Equality Act.

Harassment is defined as one person (say a young employee) engaging in unwanted conduct related to a protected characteristic of an another person (say an older employee) which has the effect of violating the second person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

While most employers would be aware that race, sex, disability or religious belief are protected characteristics, it’s worth remembering that age is too.

Whether someone is harassed depends on their perception, not the intention of the person making the comment (so “I only meant it as a joke” is not a defence). If an employee complains, you as an employer need to investigate it and consider what has been said, the context it was being said and any other circumstances. Failure to do so leaves your organisation potentially liable.

Remember too that it works both ways – so an older worker calling a younger one a “snowflake” could equally be harassment in similar circumstances.

With a bit of luck, the “OK Boomer” trend could soon become as dated as 1960s hippies calling older people “squares”. But until then, watch out for it in the workplace!

This piece was inspired by a US article called “Okay, Boomer, in the workplace could get you fired” by Suzanne Lucas who tweets as @RealEvilHRLady. It’s an interesting read especially if you want to compare UK and US employment laws!

Bart

It was only a joke!

“It was only a joke”

“I didn’t mean anything by it”

“Just our normal office banter”

“Do we have to be humourless in work now?”

Over the last 12 months, the issue of harassment has come to the forefront of business, with issues such as Harvey Weinstein, and the Presidents Club. Only this week,  business leader and TV personality Lord Sugar  got into hot water for issuing a (now deleted) tweet about Senegalese footballers. His response – that it was a misguided attempt at humour –  is a common one when individuals are confronted with inappropriate comments.  In fact, the comments above are the usual reaction when a complaint is made.

If you run or manage a small business, you may be faced by an allegation of harassment and you need to take it seriously.  Dismissing claims as merely ‘banter’ can be both expensive and damaging to your business reputation, as this car dealership found out this week.  Investigate all allegations properly and – as importantly –  make it clear that inappropriate comments are not acceptable.

It doesn’t matter if the comment was not intended to be offensive, or that you can’t see anything wrong with it – in law the main concern is the perception of the individual. This doesn’t mean that every instance of an ill-judged comment is necessarily racist or sexist – case law is very clear that “it is… important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase” – the point is that an employer must investigate a complaint properly.

And if you aren’t sure, take advice. There’s a world of difference between referring to a colleague as “The Producer” (because she is constantly telling her team that “she’ll put them in the picture”) and referring to her as “Sugar Tits”.

Humour is important in the workplace. Harassment isn’t. And remember, as I was once told by an Employment Lawyer, “Banter isn’t an excuse –  it’s an admission”. If you need more information, this piece may help you

 

 

 

Burying our head in the sand

There’s been a lot of reaction to the concept of ‘best practice’ in HR over the last few years –  the idea being rejected primarily because no-one can identify what these best practices are, nor is there much (if any) evidence that they work. As a result, the alternative ‘best fit’ model has gained in popularity.

Superficially, best fit has much to commend it. Our HR practices are adapted to the size, sector and most importantly the strategy of our organisation. The approach that might be taken in a large corporate services business is not the same as an SME in a manufacturing sector. But we need to take care.

One of the most well-known best-fit theories  (Schuler and Jackson 1987) suggests that when a business is cost-sensitive, HR’s approach should be to control and reduce costs. This means not just keeping wages at the lowest level to attract qualified staff, but also using very tightly defined job roles (so there is no scope for ambiguity or employee discretion), using ‘precarious’ labour (what we now tend to refer to as the gig economy), little or no training and development, and short-term performance goals. Ryanair is often cited as the ‘classic’ example of this approach in the UK.

The dangers of this approach should be obvious – and if they aren’t then yesterday’s article in the Financial Times, which exposed the working practices in the garment industry in Leicester should be top of your reading list. Taken to its extreme, it leads to unsafe working conditions, below minimum wage levels and exploitation on a large scale.

“But what can we do?” I can hear many HR professionals saying. After all these businesses won’t have HR.  But our ‘just legal but arguably unethical’ HR practices do lead to other companies taking the next step across that line. And with little current enforcement of regulations it’s all too easy to get away with ignoring basic employment law.

It is, as Canadian HR writer Jane Watson describes it, a “Wicked Problem” – and demands the same approach she suggests to tackling it. HR can’t solve the issue on its own, but neither can we pretend that we are not partly responsible for this state of affairs.

The failure of HR

Well, after much speculation, and a weekend of leaks, yesterday saw the publication of the Taylor Review into employment, entitled “Good Work”. Much of the focus has understandably been on the Employment Law implications (excellently summarised by Darren Newman) and there has been a mixed reaction to the proposals.

But one of the key things that struck me from the report was the implicit failure of HR Management over the last 20-30 years, in allowing this situation to develop. Taylor’s concept of ‘good work’ would not look out of place in any CIPD document (and isn’t radically different to the ideas of a Victorian-era Pope). But the fact that Taylor feels it necessary to state that:

·         Flexible working is currently one-sided, in favour of the employer

·         A culture has grown up of insecure work and unpaid overtime

·         Employees and other workers are not listened to and often have no way to put forward their views

·         Not enough time or money is invested in training and development

·         The over-control of workers leads to problems with individual wellbeing

Suggests the reality – of what HR are doing – doesn’t match the theory.

So why is this? There seem to me to be five main reasons for HR’s failure.

·         Clinging on to outdated ideas – like “Best Practice” – a set of theories that derive from a discredited 1980s management study

·         A mistaken perspective, that sees businesses as some kind of corporate North Korea where dissidents (anyone disagreeing with the management viewpoint) are trouble makers to be removed, or re-educated via ‘employee engagement’ programmes.

·         Alternating between scaredy-cat approaches where we hide behind “policy says no” and “we might set a precedent”, and macho ‘business partnering’ where we try to act like the corporate equivalent of mafia hitmen.

·         Dehumanising people by referring to them as “human capital” (an oxymoronic term that reduces people to data on spreadsheets)

·         Becoming obsessed with the process rather than the outcome. I don’t care which “Applicant Tracker System” is best or about the relative merits of an ‘e-learning portal’ v ‘online facilitation’.  

I’m glad to see that the CIPD are having a review and consultation around our professional standards. But it’s how HRM is put into practice that worries me, and it seems we are way off the game in a lot of areas.

 

The “Headscarf Ban” – what it really means for small businesses

Today’s ruling by the Court of Justice of the European Union (CJEU) that employers can ban Muslim women from wearing headscarves has attracted a good deal of publicity and comment from both sides of the argument. But it’s important for small business owners to understand the implications of the decision before deciding whether or not they need to do anything at all about this ruling.

First – and probably the most important point – is that banning a Muslim woman from wearing a headscarf is not direct discrimination only if it is part of a policy that all employees are not allowed the “visible wearing of any political, philosophical or religious sign in the workplace”. In other words, such a ban must also prohibit, amongst other things

·         Wearing of a cross by a Christian

·         Wearing of a turban by a Sikh

·         Wearing of a Kippah by a Jewish man

·         Anyone wearing a t-shirt with a religious, atheist or philosophical message (such as this for example)

·         Rastafarians having dreadlocks

I’m sure you can think of others (wearing a poppy in the lead up to Remembrance Day for example?).  

But even if you want to introduce such a ban (and we’ll look at why in a minute) you need to beware that such a policy might be indirect discrimination – in other words a requirement which, although it appears to treat everyone equally, disproportionately affects one particular group. Indirect discrimination is permitted by an employer if it is ‘objectively justified by a legitimate aim”. In the cases before the CJEU, the court decided that a legitimate aim could be that a company wished to convey an image of political, religious or philosophical neutrality to its customers, but that the desire of  acustomer not to be served by an employee wearing a religious symbol (in this case a headscarf) would not be a legitimate reason.

So, having considered all this, and the potential for a legal challenge if you do implement a ban, why would you want to do this anyway? How business critical is it that you convey an image of “neutrality” to your customers? Is it so important that you wish to try and dictate to your staff what they can and can’t wear?  What happens if someone is wearing a headscarf as fashion accessory or for hairloss after chemotherapy, not for any religious reason? How do you distinguish?  As we saw last year with the “High Heels” issue, imposing arbitrary and unjustifiable dress codes can lead to a wealth of damaging bad publicity for the companies involved.

And we haven’t even considered the issue of whether this ruling will be binding on the UK after we leave the EU (given that a claim now would probably take more than 2 years to reach the Supreme Court) – I’ll leave that one  for legal bloggers and commentators.

As always, remember the two golden rules of Employment Law for small business

1.       Don’t believe anything you read about Employment rules in the Daily Mail

2.       Just because you can, doesn’t mean you should.

Note: Like everyone else commenting today, I’ve based this post not on a reading of the full legal judgment (which is not available at the time of writing) but on the CJEU press release, which can be found here. Should the full judgment contain anything different, I’ll update this post.