Resolving conflicts

A company that drives values-based change is more likely to be effective at problem-solving. Approaching conflict in the workplace requires rethinking how harassment and discrimination are handled; startups should develop a clear and thorough grievance process, working with human resources to resolve problems through communication and the use of neutral third parties, like ombudspeople.

Why did we choose this area?

Building a culture is hard work, and rebuilding a culture is even harder. How should companies drive diversity and inclusion and change, and who should be driving it? How do we move responsibility out to all leadership and employees from top to bottom? Having an open environment with many different people is likely to lead to wonderfully different new ideas, but also to not-so-wonderful clashes when trying to integrate different ideas and behaviors. How should companies resolve differences and find solutions to hard, complex problems like discrimination and harassment?

How do we think about resolving conflicts?

Diversity and inclusion are hard and require work, and companies need to prioritize that work. In startups where time and people are limited, the CEO has to be involved to make diversity and inclusion a company priority. At some point, as the company scales, the CEO is going to need to delegate, providing an opportunity for top-down inclusivity success or failure.

The Human Resources (HR) department and Diversity and Inclusion (D&I) leaders are ostensibly drivers of change to improve diversity at companies, as well as resources for employees dealing with issues related to discrimination, bias, and other inequities. However, we’ve seen that historically these teams have not been able to drive meaningful inclusion in today’s tech companies. This often happens when they are tasked with risk mitigation instead of problem solving, and external hiring instead of internal company-building. Their reaction is often to bring in lawyers, who are even more focused on risk mitigation and less creative with resolving conflicts collaboratively.

What are we concerned about?

HR and People Operations are between a rock and a hard place. Their structure and role make them advocates for the company and not for employees. They often escalate complaints into legal issues quickly, sometimes leaving the employee at a disadvantage. In investigations, investigators are paid by the company and are often biased in favor of the company as a result. The process usually involves collecting information that can be used against the employee.

D&I tends to sit in HR, legal, or finance, and is often focused on recruiting and hiring without responsibilities for inclusive internal policies or any authority to drive change. It may also focus on a subset of underrepresented groups rather than full inclusion. But it doesn’t have to be. D&I should cover company-wide internal goals as an operational role. The goal should be growing people, not just hiring them, and should be tied to metrics of the company across all managers and programs. It requires defining standards and goals, and driving each group to achieve them.

Companies may incur some legal exposure in holding information and not acting on it or failing to prevent more problems. Consequently, many prefer to focus on risk avoidance. Instead of getting information earlier to try to prevent problems in the first place, they wait until potential problems are reported.

This waiting is exacerbated by how reporting works. HR is not a trusted mediator when it comes to solving problems, given its role in protecting the company. People often only go to HR as a last resort and problems often become confrontational by the time they get there and report them.

We are also very concerned to see D&I often serve as a marketing function, with some D&I hires even reporting into Corporate Social Responsibility (CSR) leaders instead of under the departments where D&I usually sits. D&I should not be a PR statement; it has an important role internally and externally, and external announcements should match the internal reality or a company risks exacerbating problems.1

What are our recommendations?

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Make the reporting process collaborative, transparent, and solution-oriented

Reporting problems, and enforcing solutions, is part of a well-functioning, transparent, and inclusive company. Unfortunately, few companies manage complaints in a collaborative, solution-oriented way.

Your code of conduct should clearly outline procedures for reporting violations and provide detailed instructions, though not all victims will feel comfortable coming forward. Fear of reprisal, lack of faith in authorities, or shame may prevent victims of inappropriate behavior from coming forward. It is important that a code of conduct acknowledge these legitimate concerns while providing a clear path for those who do want to report violations. Companies may consider adopting several reporting mechanisms, with different levels of visibility, which may trigger an array of responses. Potential reporting options could include an anonymous email form, a suggestion box, or a dedicated email address.

Perhaps the most important factor in ensuring the effectiveness of a code of conduct is clear, consistent enforcement. A code of conduct should clearly state the penalties for violations and the mechanisms of enforcement. Where violations happen, they should be swiftly responded to in accordance with the procedures established in the code of conduct.

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Offer multiple ways to report

Most victims of inappropriate workplace conduct choose not to report violations. This choice may be because many fear the reputational cost of reporting. Specifically, victims of discrimination or harassment may fear retaliation, being labeled a troublemaker, or not being believed. These fears are not unfounded. Research indicates that victims who report discrimination are more likely to suffer a social cost, even when discrimination is found to exist. When allegations of discrimination challenge beliefs in the meritocracy, the response can be even more negative.2

Unreported violations come at a high cost for both the individuals suffering from inappropriate behaviour and the company where such behaviour goes unpunished. Individually, incidents of discrimination and harassment, even on a relatively small level, can have a negative impact on economic, mental, and physical health. Potential consequences could include impeded advancement, lower earnings, higher levels of stress, depression, and poorer self-reported health status.3 Companies that fail to address discrimination are more likely to suffer from toxic work environments, low morale, lower productivity, and higher rates of turnover.

Therefore, it is imperative that employers establish accessible effective reporting mechanisms to address allegations of inappropriate conduct.

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Make reporting policies clear from the start of onboarding

Companies should provide employees with a clear “road map” of all channels and how to access them. These should be easily obtainable by employees through multiple media. Employees should be able to access information on their own, via intranet, kiosks, handbooks, or anonymous hotlines. They should also be able to consult a manager or go through official organizational resources. It should be clear which channels provide confidentiality and which channels have the power to investigate and discipline.4

Startups should offer multiple ways for employees to report inappropriate behavior, including both informal and formal processes.5 Communicate the range of available solutions to employees, and the implications of potential choices. For example, filing a formal complaint could result in an investigation with the possibility of discipline, and prevents later use of a self-help solution.6 Finally, employees should also understand the options available to them outside of the organization, including avenues for support, where they can obtain information about their rights, and the timetables for exerting their rights.

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Account for power dynamics

The best ways to solve and report problems will recognize the power dynamics between the parties involved on both sides of the problem, and it will seek to provide an equitable solution for all of them.7 In reporting and dispute resolution, these dynamics come into play in several forms. Employees are dependent on employers for compensation, for references, and sometimes for their social circles. Employers typically have more and better legal resources; larger startups have in-house counsel, sometimes teams of lawyers. In disputes, they often hire outside counsel, which may have much larger teams allocated than an employee can afford.

50+ employees

Use a third-party ombudsperson

An ombudsperson is an outside, third party resource for employees to get information. For employees, the independent ombudsperson should provide an independent outline of options and potential outcomes, including what is likely to happen if HR gets involved. Ideally the third party should be set up to be truly neutral; an ombudsperson who is managed directly by the company is not likely to be perceived as independent.

Companies could also get information about problems in a timely fashion with an ombudsperson. We see the ombudsperson as being able to collect data regularly while raising issues early with company management. Protection of employee confidentiality is also critical, because we believe it will result in earlier reporting of problems and encourage more creative solutions and a less adversarial process. Today’s biased system prevents employees from reporting, sometimes by penalizing them, and may escalate into a lawyer-driven set of interactions.

We believe problem solving is more likely to occur in a system that provides an independent third party’s perspective, advice, and data collection.

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Track attrition

Know where you are losing diverse staff. Gain a better understanding of links and blockages in the pipeline. Track rates of voluntary and involuntary attrition.8 Track both overall attrition rates and losses along demographic slices: Is a company losing women of color at a rapid rate? Are Black employees more likely to be fired than their white counterparts? Is there a common culture reason for employees leaving? Where are they going? Exit interviews that ask employees why they are leaving can flag problems before they become more widespread.

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Track termination practices

Termination practices should be a checkpoint for whether a company is operating well. First, layoffs and involuntary attrition should not have a disproportionate impact on underrepresented groups. Today, this is often not the case.9 Criteria for dismissal and termination should be objective, based on performance reviews and promotion data. Subjective criteria could be influenced by bias against members of underrepresented groups. Run a metric check on attrition demographics before making any final decisions.

Avoid using Performance Improvement Plans (PIPs) unless there is a chance of the employee pulling out of the situation. In concept, Performance Improvement Plans sound great. They are described as giving an employee a chance to improve on specific areas of failure within a specified time period. The problems lie in implementation. In many cases, they are designed for (and perceived as) creating a paper trail for terminating an employee.

The areas of improvement can be vague, outside the employee’s control, or unlikely to impossible. They can be in areas where the employee has already received feedback for improvement and where they have shown an inability to improve. Ultimately, if you know you want to terminate an employee, and you’ve worked with the employee to try to solve the problem, what is the point of a PIP? If you want to change behavior, communication is important, but this should be done over time through continuous feedback, and the manager should provide tools or resources to help the employee improve and succeed. If these tools and resources are not available, putting it in writing and setting up a deadline are not going to be meaningfully helpful.

Resources

While Project Include provides resources as a starting point, we have not made a comprehensive search of all resources and do not necessarily agree with everything in the resources. We share these as helpful references and encourage you to continue exploring.

  • MIT Ombud: Employees can give confidential, unofficial reports; MIT keeps no records. More details.
  • Large international law firm: The firm had a committee with a senior partner that employees could come to with informal complaints, and they were not required to make formal reports. The committee shared the kinds of issues they heard about, and the range of solutions.
  • World Bank: reported aggregated statistics and outcomes.
  • The Callisto model is an interesting program used in schools for reporting assault, allowing for outside, anonymous reporting on campus sexual harassment. When one person is reported as an assailant more than once, that person may be reported automatically to the police and/or university.
  • Example of conflict resolution: Github: Update on Julie Horvath’s Departure. This communication is an example of how companies and employees can come to an outcome and message that respects both positions in a conflict and does not attack the employee. (Note: the conflict reflared later.)
  • Klein, F.K. (October 19 2007). “Giving Notice: Why the Best and Brightest Are Leaving the Workplace and How You Can Help Them Stay.” San Francisco: Jossey-Bass.

  1. Kang, S., DeCelles, K., Tilcsik, A., and Jun, S. (March 29 2016). “The Unintended Consequences of Diversity Statements.” Harvard Business Review. Retrieved April 2016 from: https://hbr.org/2016/03/the-unintended-consequences-of-diversity-statements.

  2. Kaiser, C.R. and Major, D. (2006). “A Social Psychological Perspective on Perceiving and Reporting Discrimination.” Law & Social Inquiry 31(4): pp. 801-830. Retrieved April 2016 from: http://depts.washington.edu/silab/Documents/Kaiser%20%26%20Major%20(2006).pdf

  3. Hammond, W.P., Gillen, M., and Yen, I.H. (March 1 2010). “Workplace Discrimination and Depressive Symptoms: A Study of Multi-Ethnic Hospital Employees.” Race and Social Problems 2(1): pp. 19-30. Retrieved April 2016 from: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2867471/

  4. Klein, F.K. (October 19 2007). “Giving Notice: Why the Best and Brightest Are Leaving the Workplace and How You Can Help Them Stay.” San Francisco: Jossey-Bass.

  5. Ibid.

  6. Ibid.

  7. Ibid.

  8. Costs of attrition are at around 20 percent (213 percent at higher levels) of annual salary. Boushey, H. and Glynn, S.J. (November 16 2012). “There are significant business costs to replacing employees.” Center for American Progress. Retrieved April 2016 from: https://www.americanprogress.org/issues/labor/report/2012/11/16/44464/there-are-significant-business-costs-to-replacing-employees/.

  9. Elvira, M.M. and Zatzick, D. D. (April 2002). “Who’s Displaced First? The Role of Race in Layoff Decisions.” Industrial Relations 41(2): pp. 329-361. Retrieved April 2016 from: http://www.ux1.eiu.edu/~cflsg/elvira.pdf.

    Houston, G. (November 23 2015) “Global Diversity & Inclusion Update — Sharing Our Latest Workforce Numbers.” Official Microsoft Blog. Retrieved April 2016 from: http://blogs.microsoft.com/blog/2015/11/23/global-diversity-inclusion-update-sharing-our-latest-workforce-numbers/. (During a one year period, the number of women working worldwide dropped from 29 percent to 26.8 percent.)

    Metcalfe, J. (November 4 2010). “After Layoffs, Firms are Less Diverse.” Law360. Retrieved April 2016 from: http://www.law360.com/articles/207006/after-layoffs-firms-are-less-diverse-study.