Reverse discrimination - the other side of the coin for HR to tackle

Cath Everett Profile picture for user catheverett October 31, 2016
Unusually in such a male-dominated industry as tech, Yahoo is being sued (twice in a year) for reverse discrimination. So what are the implications for all of those inclusion and diversity programmes out there and how can organisations ensure they get it right?

In a male-dominated industry such as tech, which has been bemoaning the lack of women in its ranks for years, reverse discrimination lawsuits are perhaps even more uncommon than they are elsewhere.

But US search engine and web portal firm Yahoo!,  headed up (for now) by a female president and chief executive in the form of Marissa Mayer, has been hit with two of them this year.

The first was filed in February by Greg Anderson, a former editorial director at the firm in charge of a number of its content categories. He alleged that his gender led to him being fired in November 2104 as Mayer “encouraged and fostered” the use of a quarterly performance review (QPR) system in order to “accommodate management’s subjective biases and personal opinions, to the detriment of Yahoo’s male employees”.

Moreover, he claimed that the company’s female managers “intentionally hired and promoted women because of their gender, while terminating, demoting or laying off male employees because of their gender”.

A second lawsuit followed earlier this month from Scott Ard, a senior editorial director who was sacked last year and is being represented by the same lawyer. He accuses not just Mayer, but also Kathy Savitt, former chief marketing officer, and Megan Liberman, editor-in-chief of Yahoo News, of gender discrimination too.

Ard claims that when Savitt had started working at the firm less than 20% of top managers were female, but within 18 months the figure had risen to more than 80%. He also alleges that the QPR system was used as a tool to justify firing himself and more than 50 other male employees.

Yahoo, on the other hand, attests that the lawsuits have no merit and the quarterly performance reviews implemented by Mayer in August 2012 have helped to boost the firm’s overall performance.

In the view of David Cessante, a partner in the labor and employment group at Clark Hill, a US member of the Globalaw legal network, meanwhile, both cases hinge on whether Yahoo’s QPR system is “essentially a rubber stamp” enabling upper managers to do what they like without any proper checks and balances being in place to ensure the review process is fair to employees across the board. Cessante explains:

Much will turn on the validity of the QPR system, how it was used and the results obtained. The plaintiffs are really arguing that it was a guise to discriminate against employees. But discrimination is intentional by default and so they’ll have to prove that they were given lower scores and terminated due to their gender.

Equalising your organisation

Moreover, in order to ensure that corporate diversity programmes do not risk tipping over into reverse discrimination lawsuits elsewhere, Cessante recommends that employers ensure they have watertight HR policies in place. He says:

To prevent discrimination, employers need to have robust HR processes that are legitimate and defendable in order to ensure they’re hiring or promoting the best qualified candidate. So they can target recruitment efforts at women or minorities, for example, but the key is to have legitimate, non-discriminatory reasons for hiring them. While you can lawfully maintain that your aim is to create a diverse workforce, it’s a very fine balancing act and if you give preference to someone based on protected characteristics like gender, you open yourself up to discrimination claims.

But in order to truly “equalise” an organisation and embed inclusive thinking into it, Nikki Watkins, chief executive of Tyche Leadership Consulting, believes it takes more than simply sorting your HR processes out. An important first question for leaders to ask themselves, she believes, is simply why they want to hire more women (or members of minority groups) in the first place. She explains:

Is it your goal to hire women just to meet quotas, or is it that, at a strategic level, the company needs to see a certain level of growth? A recent report by McKinsey indicated, for example, that the top 25% of companies in terms of gender diversity were 15% more likely to see financial returns than their peers, while for firms excelling in ethnic diversity, the figure was more like 35%. So boardrooms are now starting to sit up and realise that diversity is good for business.

A second point is that unconscious biases are usually hard for individuals to recognise and act upon, even though they are known to lead managers of all levels to hire and promote others in their own image – a situation that simply perpetuates the status quo.

A useful tool to shed some light on these prejudices is Harvard University’s Implicit Association Test, which can be used by willing volunteers to understand their own preconceptions in a number of areas including race and gender. Bias awareness training can likewise act as a good starting point for tackling such issues as can getting a handle on corporate data to understand how they are manifesting within the organisation in reality.

Bridging the gap

But another important consideration is ensuring that men and women work together to come up with solutions. In fact, a newly released report by the University of Cambridge’s female-only Murray Edwards College, entitled Collaborating with men: Changing workplace culture to be more inclusive for women, advocates just that approach.

Its premise is that, despite big efforts in many workplaces over recent years, there is still a “gap between intention and implementation of change”. As a result, this stalled progress indicates that it is now time “to tackle workplace culture”, which means men actively joining with women to make a difference.

Workplace culture, meanwhile, is defined as “a set of assumptions, values and beliefs that govern how people behave in organisations”. These factors include not only using double standards in the way men and women’s performance and potential is assessed, but also “benevolent sexism”, where well-meaning men make decisions for women that ultimately damage their careers.

Another issue relates to the ways that different genders communicate, which means that, without realising it, men often talk over women and fail to hear or recognise what they say.

But the report offers five key ways to affect cultural change, which all hinge on the idea that “small, incremental changes in individual behaviour will add up to big changes for women’s advancement into the top levels of careers”. These changes comprise:

  1. Seeking to understand women’s (and some men’s) issues with workplace culture
  2. Making visible how things are done in practice
  3. Building closer relationships between men and women
  4. Undertaking individual interventions to tackle behaviour that is gender-biased
  5. Rewarding and supporting male role models display behaviour that is gender-inclusive.

Tyche’s Watkins agrees that it is vital to ensure males are included in any change process not only so they buy into it, but also to help them understand the wider benefits that “equalisation” brings for everyone. If individuals feel sidelined, they are also likely to feel resentful and defensive, which is helpful to no one.

But such benefits also need to be communicated repeatedly and in a way that people can understand until they become embedded in their consciousness, and the organisation’s ways of working.

As George Simons, author, consultant, trainer and coach in cross-cultural communication and global management, concludes:

It’s important to think about culture and context and what keeps people from talking to each other so they end up going in the direction of lawsuit. The antidote is good leadership and good personal connections as well as what I call the ‘ur-culture’ or overarching culture. These issues aren’t going to be resolved by laws and policies and procedures, but by people learning to communicate effectively with each other.

My take

Although some progressive organisations are already three or four years into their inclusion journey, Tyche’s Watkins says she is aware of no company anywhere in the world that has actually achieved a truly “equalised workforce”.

But while the issues behind this situation may be many, varied and complex, this very complexity should not be used as an excuse by organisations to sit on their hands – not if they want to succeed into the future and ensure their employer brand appeals to the Millennial generation and beyond, that is.

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