This Week's Feature
Managing diverse ages and ethnicities
Excerpted from Washington Employment Law Letter, written by attorneys at the law firm Perkins Coie
In light of our nation's rapidly increasing diversity, many of you have been challenged to effectively manage a workforce that includes a broader range of ages, races, and ethnicities.
As a result of those monumental demographic changes, you may find the following four generations at work in your organization at the same time: the "Matures" (born 1909-45), the "Boomers" (born 1946-64), the "Generation Xers" (born 1965-78), and the "Millennials" (born 1979-88).
In addition to the span of employee ages, a far greater variety and number of ethnicities and races are working together. To be successful, you'll learn not just to accommodate the differences but to manage them in a way that leads to the attraction and retention of talent.
On the other hand, you must deal with the predictable conflicts of culture or other issues that could lead to legal claims against your organization.
Five of the most obvious potential areas of conflicts are (1) ageist or racist stereotypes, comments, jokes, teasing, and expressions, (2) communication styles, (3) use of technology, (4) work ethic and loyalty, and (5) younger bosses of older workers (or bosses of different races or ethnicities).
A particularly tricky legal issue that's starting to emerge is whether age-related claims can be made successfully in the context of a hostile work environment claim.
Few courts have clearly decided whether a hostile work environment claim can be maintained under the age discrimination laws. But many courts have presumed that those kinds of claims are viable and have analyzed them under the standards normally applied to other hostile work environment claims.
The Equal Employment Opportunity Commission has stated that the standards applied to allegations of sex-based hostile work environment also apply to age-based claims.
Defining the problem
To be actionable (or legally pursuable), hostile environment harassment must be severe or pervasive enough to "alter the conditions of [the victim's] employment and create an abusive working environment."
In a hostile environment claim, the victim generally must have evidence of more than a few isolated incidents and can't rely solely on "casual comments or trivial events and sporadic conversation."
The Ninth U.S. Circuit Court of Appeals has recognized that a hostile work environment claim may be based on age. In a 1991 case, the court noted that an individual may show a violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act "by proving the existence of a hostile work environment. . . . A hostile work environment requires the existence of severe or pervasive and unwelcome verbal or physical harassment because of [the individual's] membership in a protected class."
In the case, the alleged victim made claims only of age-based disparate treatment. Nevertheless, the court recognized that age could be the basis for a hostile work environment claim. Sischo-Nownejad v. Merced Community College District.
Related case
In a 2001 case, the First Circuit noted that "[h]ostile work environment claims were first recognized in the sex-discrimination context, but have since been recognized for members of any protected class."
Facts. In September 1985, Victor Rivera-Rodriguez became Frito-Lay's HR director for the Caribbean. In 1993, the company's Puerto Rican operations moved under PepsiCo's Latin American region, headquartered in Mexico.
After the reorganization, Frito-Lay's employees filed a petition to unionize. Rivera-Rodriguez worked with other company leaders to discourage unionization, but the efforts were unsuccessful. After the company became unionized, Rivera-Rodriguez was told that his job was being eliminated and his duties were transferred to a younger employee.
Rivera-Rodriguez was relocated to another market, where his job was again eliminated. Frito-Lay offered him a position as an HR consultant, but he declined. He was later fired. He then sued the company, alleging a hostile work environment based in part on age.
Court's decision. The First Circuit, reviewing a dismissal of the case in Frito-Lay's favor, found that the seven-year age difference between Rivera-Rodriguez and the employee who took over his responsibilities was enough to support a prima facie (or minimal) age discrimination case.
The court then found that several comments by Rivera-Rodriguez's supervisors about his age were sufficiently anchored to his claims and were numerous enough to be considered systematic and continuous.
In addition, the First Circuit found that statements about a need for youthful blood, a desire to retire workers over the age of 50, and repeated comments about Rivera-Rodriguez's age were all severe and pervasive enough to create an objectively hostile work environment that he subjectively perceived as abusive.
The court concluded that a reasonable jury, given the totality of the circumstances, could find that he had been subjected to an age-based hostile work environment. Rivera-Rodriguez v. Frito-Lay Snacks Caribbean, 265 F.3d 15 (1st Cir., 2001).
Practical impact
Here are some steps you can take to protect your organization from age and race discrimination claims:
- Keep detailed records of employees' performance and disciplinary actions. Have supervisers document performance problems as they occur.
- Make your performance appraisals objective.
- Effectively communicate performance problems to employees.
- Don't pressure older workers to quit or retire.
Although successfully managing your workforce is particularly important in these increasingly diverse times, the primary keys are consistent with HR's best practices.
That includes outlining your clear expectations about conduct and performance, providing informed and decisive authority and leadership, sharing ample communication about and recognition of workplace diversity, making effective use of technology, handing out appropriate recognition and awards, maintaining a proper work/family balance, and showing loyalty, particularly with regard to talent management and succession planning.
Copyright © M. Lee Smith Publishers LLC. This article is an excerpt from WASHINGTON EMPLOYMENT LAW LETTER. WASHINGTON EMPLOYMENT LAW LETTER is not intended to be and should not be used as a substitute for specific legal advice, since legal opinions may only be given in response to inquiries regarding specific factual situations. If legal advice is required, the services of counsel should be sought.
Additional resources on HRhero.com
Subscribers Area Resources
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Available to Employment Law Letter subscribers
- Have we really come a long way? Making a business case for workplace diversity
- Quest for diversity can justify affirmative action
- Diversity update -- GAO issues report on management practices
- What do you do about the 'sandwich' generation
- A new picture of retirement
- A look at Christmas Future: retiring boomers and unskilled GenXers
Other resources
- HR Guidebook - Diversity
- HR Executive Special Report - Age Discrimination
- A pre-conference session on "Managing Today's Multicultural Workforce" will be offered at AEIS
- A session on "Today's Multigenerational Workforce" will be offered at AEIS
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