Despite the endless histrionics of television courtrooms, the real world of practicing law, particularly employment law, is more about varying degrees of certainty and exceedingly few absolutes. It’s about negotiation and compromise and clients that have to live with the realities of whatever resolution we are able to fashion.
So while there have been protests, concert cancellations, Governor McCrory’s Executive Order, and calls for the North Carolina legislature to repeal HB 2 (it’s not real clear what impact, if any, the Fourth Circuit’s recent ruling will have), I think there are at least two very real ways in which businesses can respond to HB 2.
First, we should be ever more vigilant about discrimination in the workplace. Even if we disagree on the value of diversity in the workplace, making someone feel uncomfortable, for whatever reason, is bad for productivity, retention and morale.
This should apply not just to the historically protected categories of age, race and color, national origin, sex, and religion, but also disability, gender identity, military service, child bearing and parenting and just about anything else that would make someone self-conscious or subject to disparate treatment.
Not to mention, despite the legislature’s apparent unintended repeal of decades-old state anti-discrimination laws, the threat of a federal court lawsuit or at least an EEOC investigation and the fear, distraction and legal fees that come with it, should be enough for those who can’t see the value of treating others as we would like to be treated.
Second, employers should take the time to actually talk with their employees. The number one complaint I receive from disgruntled employee-clients is that they didn’t receive an annual review. To employers, annual reviews are an awkward and time-consuming administrative nuisance. To employees, it’s a rite of passage. Generally associated with an annual pay raise or a bonus, the mere act of meeting with management, even for a few minutes, is a point of validation. For good or for bad, employees want to know where they stand with the company.
These meetings are also a great time to make personal connections with employees. Certainly, the decision to undergo gender reassignment is not an easy one and is one that has far-reaching consequences that go well beyond which restroom to visit. Taking the time to meet with employees, on at least an annual basis, may give management insight into the stresses facing their employees, which can range from a family illness to financial stresses to gender identity issues. Understanding, or at least providing a forum for a discussion of these matters, may help strengthen the employee-employer bond in an increasingly transient workforce.
It is not readily apparent that HB 2 was intended to have consequences for the workplace, but that is an undoubted result. And while the mere mention of these issues is fraught with emotional landmines, there is plenty of room for improvement in general employment practices that can benefit all employees and, as a result, their employers.
Things to consider:
· Is your employee handbook updated, does it contain anti-discrimination provisions and have your employees acknowledge receipt of it?
· Do you provide annual reviews for each employee?
· Have you discussed with members of management how to resolve conflict among employees?
· Have you posted the necessary notices somewhere in your office?
· Do you regularly document employee complaints, discipline and follow-up?