Line-of-Questions.jpgI read a very informative article from the American Conservative titled “The Deciders” by John Hay. The main thrust of the article is that Iraq policy after Saddam Hussein was ousted from leadership is more reflective of decisions made by President George W. Bush’s subordinates than the President himself. Without getting bogged down in politics or blame, I found myself reading the article as an employment attorney who regularly defends companies’ decisions to terminate or discipline an employee. From that perspective, Mr. Hay’s well-written article showcased an all too common problem facing companies when it comes to employee discipline.

Specifically, employment disputes often arise because lower level employees or managers disregard sound HR policies and best practices with little or no knowledge on the part of upper management. The result is that there is a significant disconnect between what company leaders believe is taking place and what occurs in the “trenches.” And often, this disconnect is brought to light only after a discrimination charge is made, or a discrimination lawsuit is filed.

Mr. Hay’s article puts it this way:

When you have the wrong diagnosis, you risk coming to the wrong solution, no matter how clever you think you are…This episode highlights a weakness in the executive branch that is ripe for exploitation under any administration … But for those who have a deep understanding of how the government works, it is quite possible to undermine a president, then step back and pretend to have had minimal involvement…

The problem of failing to diagnose a problem or subordinates failing to properly implement company policies routinely manifests in various circumstances. For example:

  • I recently wrote about a discrimination and retaliation claim arising out of the showing of a video depicting a competitor’s CEO as Hitler and his employees as Nazis. See Employers Cannot Afford to Ignore Even a Single Incident of Workplace Discrimination. This video was shown at a mandatory company seminar and (understandably so) offended a Jewish employee. Further, court documents reflect that the employer concluded the video was inconsistent with the employer’s policies and it should not have been shown due to the offensive subject matter. Nonetheless, the damage had already been done.
  • Another example involved a religious discrimination claim I defended on behalf of an employer. While the lawsuit was ultimately dismissed in favor of the employer, upper management was surprised that company policies for scheduling employees were not followed, which created the circumstances for the religious discrimination and failure to accommodate an employee’s religious practice in the first instance.
  • Or consider a federal jury recently ordered a trucking company to pay $240,000 to two Muslim men who were terminated from their positions after refusing to transport shipments of beer (EEOC v. Star Transport Inc., 10/20/15). According to the stipulation of facts in the lawsuit, the decision rests primarily on the fact that while Star was an experienced over-the-road trucking company with 1,150 employees, its managers had little knowledge of Title VII and the company’s obligations to accommodate employees’ religious beliefs under Title VII of the 1964 Civil Rights Act.

The common denominator in these three examples is that HR professionals or the business leaders implemented employment best practices necessary for complying with federal and Michigan employment laws. But, whether you’re the President of the U.S. or your company, it is not enough to just announce a policy and do nothing. And in keeping with the military theme as a framework for effective human resource leadership, Team of Teams: New Rules of Engagement for a Complex World, describes his approach to managing as follows:

Gardeners plant and harvest, but more than anything, they tend. Plants are watered, beds are fertilized, and weeds are removed …Regular visits by good gardeners are not pro forma gestures of concern — they leave the crop stronger. So it is with leaders … A gardening approach to leadership is anything but passive. The leader acts as an “Eyes-On, Hands-off” enabler who creates and maintains an ecosystem in which the organization operates.

For questions or more information about this blog post or improving your company’s employee operations, contact employment attorney Jason M Shinn.