Deconstructing a Typical EEOC Charge of Discrimination

You just got notice that a charge of discrimination has been filed with the Equal Employment Opportunity Commission by a former employee who was recently discharged for poor performance.  You are scratching your head because, as the Chief Human Resources Officer, you’re very familiar with the facts surrounding this employee’s termination and you are not aware of any, I mean not any, information that would even hint at unlawful discrimination.  He was terminated for poor performance and a bad attitude-end of story. So how did the company end up with a charge of discrimination?

In my role as an attorney, I have defended numerous EEOC charges for various employers. Although discrimination certainly does exist in the workplace, evidence of unlawful discrimination is absent in many charges.  It is, of course, possible that there was indeed discrimination and that the HR Department was unaware of it.  Typically, however, when considering terminating an employee for poor performance or any other legitimate non-discriminatory reason, HR and management would be aware of (and consider) any facts that might be relevant to the proposed termination.

More likely, there really wasn’t ever any unlawful discrimination; rather, there was a strained relationship between the terminated employee and another employee or employees that was never resolved.  For instance, the terminated employee was part of a two-person team.  He and his former coworker had very different personalities.  His former coworker was an introvert who didn’t initiate conversation very often, kept her head down (even when provoked by him), did the job, and went home.  On the other hand, the terminated employee was an extrovert, talked to everyone (often too much-contributing to the poor performance), and took his teammate’s quiet nature as disrespectful.  He believed that she felt she was too good to socialize with him.

These feelings went on for four or five months. The manager tried to intervene because the conflict was causing problems in the division, to no avail. The relationship continued to deteriorate, impacting performance, and finally a decision was made to terminate the employee for poor performance and a toxic attitude toward his teammate, which he wasn’t shy about sharing with other employees.

He files an EEOC charge of discrimination based on sex and age.  65% of the employees in his former division are female and his manager was a female ten years younger than him.  From his perspective, of course he wasn’t really terminated due to poor performance and a bad attitude.  He was discriminated against because he was a man over 40.  Now the expensive legal team is called in to investigate, file a position statement in response to the charge, negotiate a settlement if there is one, or ultimately defend a lawsuit.

If more effective conflict management skills had been applied in this situation, there might never have been an EEOC charge and all the costs associated with it. Early conflict resolution is critical not only to avoiding unnecessary claims, but to creating a workplace where employees are provided with skills to handle conflict effectively and to stay focused on their strategic goals. Most conflicts can be resolved.

What Exactly is Workplace Conflict Resolution? 

This is a guest blog I wrote earlier this year.  It’s worth re-posting.

Workplace conflict resolution is a process for managing conflict in the workplace and resolving the business problems that result from the conflict.  Why should you manage conflict in the workplace?  Because unmanaged and unresolved employee conflict is arguably one of the largest reducible costs in organizations today.

It is estimated that 60% of voluntary terminations result from unresolved workplace conflict, giving rise to the costs associated with turnover and the loss of institutional knowledge.

Consider the following scenario: Susan and Tim are members of a team that is responsible for writing a monthly report upon which management relies.  For reasons that Janet, their manager, has not been able to figure out, Susan and Tim are not getting along at work. For the past two months, the conflict has taken time out of the work day for Susan, Tim and Janet. Now Susan and Tim’s heated discussions have been seen by other employees, causing morale issues, especially with the other members of Susan and Tim’s team. How would your organization handle this conflict?  Would you cross your fingers and hope the manager has the skills needed to resolve the conflict?  Would the manager make one unsuccessful attempt to resolve the conflict and then terminate one or both employees?

To be effective, workplace conflict resolution must have two components: 1) training employees about conflict resolution skills; and 2) implementation of a conflict resolution policy at the workplace.

Conflict resolution can be based on different theories or methods.  One is not necessarily better than another, but whichever method you choose to implement in your organization should be research-based and have a good track record.

Training employees in the basics of conflict resolution is crucial for the success of any workplace conflict resolution program.  Rarely, if ever, do children or adults receive any formal training in conflict resolution. Training equips people with new and more effective tools to resolve conflict.  Employees can be trained in self-mediation, a simple process in which an employee directly initiates a conflict resolution discussion with another employee.  Or, employees such as human resources professionals or managers can be trained to conduct third-party resolution in the workplace.  In third-party resolution the manager or human resources professional serves as a mediator for the employees who are in dispute.

The second component (i.e., implementation of a conflict resolution policy) must be put in place for conflict resolution to become a part of the culture of the organization.  There must be a clear procedure for a manager or employee to initiate workplace conflict resolution and an established process once the initial request has been made.

The process should be triggered at the earliest possible point in the conflict.  Early intervention has the highest likelihood of success.

An employer’s policy may provide for an internal mediator or an outside mediator who the employees in dispute may see as neutral.  The circumstances of the conflict will control which arrangement is preferable.

If an organization is committed to making conflict resolution part of the culture of the organization, the return will be a workplace where employees feel empowered to address conflict early in a productive manner and to solve business problems as they arise.  A workplace environment in which employees can address their disputes respectfully and effectively will go a long way in helping an organization to attract and retain top talent.

How Workplace Conflict Resolution Differs from Traditional Civil Mediation

When people first hear that I provide workplace conflict resolution services and training, they often conjure up pictures of mediation.  While there are certainly many elements of mediation involved in third-party workplace conflict resolution, it differs from civil mediation in several significant ways.

  • The parties in traditional civil mediation very often will not have a continuing relationship after mediation concludes. That is not always true, but it is often true. For instance, an injured party will mediate her claim against an insured driver, accept the settlement proceeds, and never shall they meet again.  On the other hand, the point of workplace conflict resolution is to keep the working relationship between the employees intact.  The parties WILL have a continuing relationship after conflict resolution.  The continuing relationship adds an important element to the resolution.

 

  • Workplace conflict resolution is intended to benefit the employer first and foremost, not the employees. In traditional mediation, the parties are the primary beneficiaries of the mediation.  The goal of workplace conflict resolution is to resolve a business problem of the employer.  For instance, if a conflict between two employees or a group of employees is causing significant delays in a project schedule—that creates a business problem for the employer.  The employer wants to solve the business problem.  It just so happens that to solve it, the employees must be involved in the resolution and they become secondary beneficiaries of the resolution process.

 

  • Unlike traditional mediation, which is voluntary and confidential, an employee may be required by the employer to participate in workplace conflict resolution and the resolution agreement reached by the employees in dispute is usually shared with the manager or human resources department for future accountability and tweaking if necessary.

 

Conflict Causes Communication Breakdowns in the Workplace

When does communication tend to break down most?  During times of conflict.  That is true of our personal relationships with loved ones and is equally true in the workplace. What can you do to support your organization and employees during times of conflict and communication breakdowns?  You can train your employees and you can adopt a workplace conflict resolution program.

Almost any human resources seminar you go to these days has a 45 or 60 minute session on conflict management.  The sessions are usually standing room only, so I know that conflict is a challenge for many organizations.  Those sessions are a good start but they aren’t enough.

Conflict resolution is a skill just as time management, critical thinking, organization and leadership are skills in the workplace. 

A 45 minute break out session doesn’t delve deep enough for an individual to grasp and practice the skill of conflict resolution.

The training program I use as a certified trainer provides the attendees with many opportunities during the day-long training to role play and apply the skills and tools they are learning.  As with any skill, practice makes perfect.  It is only when attendees apply their skills during the practice sessions that they begin to develop a more concrete understanding of some of the challenges they will encounter in conflict resolution.

If your organization is taking steps to create a healthier, more productive workplace culture, a workplace conflict resolution program should be part of your considerations.

Creating a conflict resolution program in your workplace isn’t difficult.  It will require policy drafting, training, buy-in from the people at the highest level, and follow through.

The investment in creating such a program will be modest and the benefits have the potential not only to minimize the cost of conflict but to maximize the creative power of conflict within your organization.  Don’t underestimate the damage that conflict can have within an organization.  A proactive approach that supports early resolution of conflicts is well worth the investment.

Is Your Work Team Like the Blue Angels?

I had the great fortune to see the Blue Angels fly this past weekend.  It was the second time I have seen them and it was no less amazing the second time around.  Talk about skill, talk about precision, talk about synchronicity, talk about collaboration!  WOW!  Their performance is nothing short of amazing and must be the result of hours and hours of practice as well as communication and collaboration at the absolute highest level.

Does your work team communicate and collaborate at their highest level?  If not, leadership training in workplace conflict resolution may pay dividends.  Workplace conflict resolution training will provide your team with the tools and practice they need to address tough workplace issues.  The training not only teaches employees to resolve their own disputes (and the business problems that arise from those disputes) but provides ideas for broaching the kind of tough workplace discussions that are usually precursors to a positive sea change within an organization.

If your work team reminds you more of Tasmanian devils rather than the Blue Angels, consider training from a certified trainer!

 

This post is worth repeating–Why Your Organization Should Invest in Workplace Conflict Resolution Training

Conflict resolution is a skill.  Expecting your employees to know how to resolve conflicts without giving them the tools they need to succeed is like expecting them to do a job without a tool belt.  Conflict costs your organization, not just in quantifiable dollars and cents, but in morale, employee engagement, and loyalty.  The following statistics are eye-opening.

  • Ineffectively managed conflict is costing businesses millions of dollars per year

 

  • 85% of employees at all levels experience conflict to some degree

 

  • U.S. employees spend 2.8 hours per week dealing with conflict equating to approximately $359 billion in paid hours in 2008

 

  • 27% of employees said they saw conflict morph into personal attacks

 

  • 25% of employees said that avoidance of conflict resulted in sickness or absence from work

 

  • 9% of employees saw workplace conflict lead to project failure

 

  • 89% of employees have experienced workplace conflict that escalated

 

  • However, roughly 75% of employees report that when conflict was channeled through the right tools and experience, positive outcomes result

 

  • The common denominator in successful conflict resolution is formal training; however, the majority of employees have never received conflict management training

 

  • 70% of employees see managing conflict as “critically” important to leadership skill

 

  • Only 22% of non-management employees think managers handle disagreements well

 

  • Over 95% of the people receiving conflict resolution training as part of leadership development say it helped them in some way

Source-All statistics taken from CPP Global Human Capital Report, July 2008- Workplace Conflict and How Business Can Harness it to Thrive

Review of Workplace Conflict Resolution Training

We had a great time last week providing workplace conflict resolution training to Home Cleaning Brands, LLC, an Atlanta-based company.  Here is some feedback from the CEO:

Eureka!  DG Workplace Solutions’ workplace conflict resolution training program is worth its weight in gold.  It’s impossible to avoid workplace conflict entirely, but I left the training with a clear, implementable method to resolve disputes more quickly.  For my business, this approach is sure to reduce turnover and increase the quality of our services. Debra was non-judgmental in helping me understand areas where I need to improve.  It’s a simple system, but practice makes perfect, and Debra was a patient guide through the training exercises.   This training program would be an advantage to any manager or team.

Debra you excelled in the presentation.  You know your material, you were patient when we veered off course, and you brought us back on topic.  I especially appreciated that you continued to emphasize the need to practice and that behavior can be changed.  I assumed I’d be much better at this practice than I am so the training was valuable (and I still need more practice). Thank you!!

Workplace Conflict Resolution-Simple But Not Easy!

“Practice Makes Perfect.”  Well, I don’t know about “perfect,” but practice helps us hone our skills.  That includes workplace conflict resolution skills.

Workplace conflict resolution is a core competency for any manager, director, human resources professional, or executive. 

Conflict resolution isn’t rocket science but it does require some tools and practice to become proficient.

We provided workplace conflict resolution training to an Atlanta-based company last week.  The training incorporates several opportunities for attendees to practice with each other the conflict resolution skills they are learning.  The mediation role playing is an essential component of the training.  After all, mediation is a skill.  Without practice we do not become proficient at any skill.

After the role playing, it is fascinating to hear how many training attendees find it difficult to implement the simple concepts and tools they learn in the training.

Mediating workplace disputes is simple but not easy!

Although most of us have the basic skills we need to mediate workplace disputes, we haven’t had any training, we haven’t learned about the tools to get the job accomplished, and we haven’t had opportunities to hone our skills.  When employees have those opportunities, their ability to resolve workplace conflicts will increase considerably for the benefit of your organization.

Why Can’t They Just Get Along?

I’m going to take a wild guess that you’ve heard this before: “I don’t know what I’m going to do with these two employees who just can’t get along! They are wearing me out and nothing I do helps!”

Human resources staff and managers can become frustrated when, despite their best efforts to mediate, employees who are in a dispute remain firmly mired in conflict.

Looking in from the outside, we can’t understand why the people who are in conflict can’t seem to rise above it.

The employees are stuck in a cycle.  Psychologist Dan Dana describes the Retaliatory Cycle in Managing Differences How to Build Better Relationships at Work and at Home.  The cycle starts with a trigger from one person (Employee A).  The trigger makes the other person (Employee B) feel threatened.  The perceived threat results in a natural emotional response of anger, which is intended to help Employee B protect himself or herself from the threat.  The defensive anger, if not harnessed for constructive problem-solving, results in a behavioral response of acting out (either distancing from the other person or trying to coerce the other person in some way).  In turn, Employee B’s acting out triggers Employee A and the cycle continues. Unless the employees have been given tools to break the cycle, they will likely remain in the cycle.

Through an appropriate process of confrontation and a conciliatory phase, the conflict can be resolved.

Most of us already have the skills necessary to resolve conflict at work, we just need to acquire the tools to bring about the desired results. Conflict resolution in the workplace is a critical competency for leaders.  Unfortunately, only about 22% of non-management employees think managers handle conflict well. Plenty of room for improvement through training!

Is Your Organization Capitalizing on the Creative Power of Conflict?

Most people think of conflict as a bad thing, and they are partially right.  Conflict can drain your organization of profits and result in low employee morale and lost productivity.  But conflict also carries with it a creative power.  

It is through some level of conflict that most change comes about.
 When your organization is in need of change, are your employees equipped with the skills to successfully bring about that change?

Organizations that incorporate workplace conflict resolution training into the office culture are creating work environments that are poised to capitalize on the creative power of conflict because their employees won’t be afraid to engage in difficult discussions.

The first skill they will need is the skill to constructively discuss the issues under consideration for change.  It’s likely there will be two or more differing viewpoints on what the change should look like and how the organization should get there.

How are differing viewpoints handled within your organization?
 Do employees feel empowered to broach difficult subjects with coworkers and managers?  If not, it’s unlikely that the full creative power of conflict will be unleashed because employees will be too afraid of contributing to a potentially “uncomfortable” discussion or to express conflicting viewpoints.  If, however, your employees have been taught skills and a process for addressing conflicts in the workplace, they will have less fear and discomfort contributing to the discussion of change. Let the discussions begin!

 

Ms. Golymbieski founded DG Workplace Solutions, LLC to offer employers the option of early workplace conflict resolution and the possibility of avoiding the high cost of escalating conflict.

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