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Suggestions For Minimizing Workplace Diversity Conflicts

The "American" workplace is changing. There are more women, minorities, immigrants, non-immigrant contract workers, non-English or limited-English speaking workers, and older workers in the U.S. workforce today. These employees have different needs, expectations, and skills which present many "challenges" for management.

We cannot ignore these differences. Ignorance simply leads to confusion, conflicts, and eventually discrimination or harassment complaints. But how can we communicate with, coordinate and manage such a diverse group? The following suggestions may help you get started on a Workplace Diversity Program.

Base Employment Decisions on Job Requirements

Employers have a right to make business decisions based on legitimate, non-discriminatory reasons. In employment, the best way to ensure that your decisions are based on legitimate, non-discriminatory reasons is to:

  1. develop detailed, written job descriptions for each job classification; and
  2. base critical employment decisions (hiring, training, evaluation, compensation, promotion, demotion, discipline and termination) on the individual's ability to perform the duties and responsibilities listed on his/her job description.

You should also try to develop training programs to teach employees to meet the performance standards and duties set forth in the job descriptions.

Develop Programs to Deal with Cultural Diversity Issues

Many Pacific employers have non-English or limited-English speaking workers. For these workplaces, policies and procedures designed to facilitate communication are critical. However, care must be exercised in establishing these policies and procedures. Employers cannot adopt blanket policies prohibiting workers from speaking languages other than English at all times. Employers may, however, consider the following practices:

Identify the Jobs Which Require a Particular Language Comprehension

An employer must be able to show that the language requirement is a bona fide occupational qualification. This means the employer must be able to prove that:

  1. language ability is an essential part of the job;
  2. an incumbent cannot successfully perform the job without the language ability;
  3. the language requirement is incorporated into the job description for the position; and
  4. the requirement is consistently and uniformly enforced.

Determine If You Need an English-Only Rule During Working Time

There must be a business justification for an English-Only policy. Document the justification. Also, limit the application of the rule to working time. Remember, working time excludes time before or after an employee's work shift, during the employee's unpaid meal period, or during the employee's break.

Identify Key Documents Which Should Be Translated for Non-English Speakers

Many labor and employment laws require proof that employees have been duly notified of their rights and the consequences of their actions if they violate established rules. It is difficult to show that a non-English speaking employee has been duly notified if he/she cannot read the notices. Consequently, employers should consider having key documents translated into an employee's native language.

Documents that should be considered for translation include, but are not limited to: benefit enrollment forms; payroll deduction forms; work rules; discrimination and harassment policies; discipline and termination notices; written employment agreements; and releases and settlement agreements.

Create a List of Available Translators

Translators will be necessary if it becomes necessary to communicate orally with a non-English speaking or limited-English speaking employee. Circumstances where it may be necessary to have a translator include, but are not limited to: discrimination and harassment investigations; depositions; participation in administrative hearings; and settlement negotiations.

Translators can be fellow employees or non-employees. Check with the following sources for a list of available translators: courts; consulates; universities or schools.

Train and Sensitize Employees

Train New Arrivals on U.S. Standards of Behavior

The biggest mistake any employer could make is to assume that a non-American will know how to behave in the U.S. Our laws, values, ethics and standards of behavior are very different from other countries. Moreover, our country places the burden on the employer to ensure that its employees behave properly. Therefore, the most effective risk management technique is to train new arrivals on how to behave in a U.S. workplace.

Train All Employees on "Acceptable" Workplace Behavior

Newly arrived immigrants are not the only people who could benefit from training on acceptable standards of workplace behavior. All new employees can benefit from the training -- particularly employees who are being placed in "non-traditional" work situations. Recommended training includes, but is not limited to: work performance standards; grooming and hygiene; discrimination and sexual harassment; work rules; and procedures for asking questions and resolving problems.

Train Existing Employees on Harassment and Discrimination

People are often culturally and/or socially insensitive. While most employees are not intentionally offensive, they are frequently unaware of how their "jokes" affect others. All employees should be trained to refrain from engaging in conduct which could be construed as harassment and/or discrimination. Employers may also want to consider alerting employees to behaviors which other cultures (or the other sex) finds offensive.

Establish Culturally Sensitive Procedures for Receiving and Processing Diversity Questions and Problems

Americans (as a cultural group) are often individualistic, assertive and usually outspoken. Consequently, most of our labor and employment laws, as well as our personnel policies and procedures, are modeled on a system in which employees are responsible for asserting their rights by filing complaints and grievances.

However, this approach may be difficult for certain cultures to use. Employees from such a culture may sit silently while they are confronted by problems they cannot handle until one day, they cannot take it anymore. At that point, there may be a physical confrontation or a lawsuit.

Either one is bad. Consequently, employers should consider developing alternate methods for answering questions and resolving problems that are more comfortable for certain cultural groups.

Train Supervisors and Managers

As with all other labor and employment matters, a company's ability to handle diversity issues successfully will depend upon the human resource skills of the company's supervisors and managers. Therefore, it is critical that they receive training on how to manage culturally diverse workforces effectively. Training should include, but is not limited to the following: the different groups (culture and sex) present in the workforce; do's and don'ts of each group; alternative strategies for handling diversity issues, as well as supervising non-Americans; the employer's policy and procedure regarding harassment and discrimination; and instructions on who to go to if they do not know what to do or can no longer handle the situation by themselves.

Develop a Risk Management Program for EEO Claims

The EEO program should include:

  • Adoption and enforcement of a discrimination and harassment policy. Distribute a copy of the policy and procedure to all employees and retain proof of distribution.
  • Selection and training of at least two management-level employees to be the company's investigators for discrimination and harassment complaints. These individuals should be empowered to promptly investigate internal complaints.
  • Consistent and uniform application of discipline in the event discrimination or harassment is confirmed.
  • Documentation of the entire investigation. This includes interview notes, copies of all records reviewed, and a summary of the investigative findings and remedial action taken, if any.
  • Develop a record-retention program. EEO investigation records should be kept indefinitely. Additionally, access to these records should be limited to persons with a "need to know."

Develop Procedures for Handling Litigation

Try not to panic when an administrative complaint or lawsuit is filed. Just remember, the litigation is simply the "American way" for resolving disputes between employers and employees. When you get the administrative complaint or lawsuit, consult with legal counsel experienced in the area.

Do not throw any of your records or documents away; give it to your attorneys. Work with your legal counsel to assess your case early and determine what options are available for resolving the dispute, then choose the option that best fits your situation.

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