Work Matters

Bard and bench agree: Civility matters

I love Shakespeare (as you can tell by this article), so I had to read an opinion from a U.S. District Court judge in the Eastern District of Pennsylvania who quoted Will in an opinion on lawyer ethics, Huggins v. Coatesville Area School District, et al. Here is the quote, from "The Taming of the Shrew," "And, do as adversaries do in law, strive mightily but eat and drink as friends." What led the court to mix Shakespeare and ethics?  A standard discrimination case. An executive of the employer school district, Dr. Walker, was being deposed. Objections were interposed to some questions, tempers bubbled over. The plaintiff's lawyer called the defense lawyer an "a------" four times and told him he was a "boy" (both lawyers are black). He refused to use "Dr." when questioning Walker (although that was what everyone called her) because he wanted to get an "edge." For his part, the defense lawyer told Walker not to worry, the opposing lawyer was just "off his meds today." All of this got to the judge, who said both lawyers were at fault (although the judge hit the plaintiff’s lawyer harder, saying that "boy" had no place in the depositions, rejecting the argument that it was OK because both lawyers are black, and dismissing the idea that getting an "edge" justifies rudeness). The court tried to get the case back on a civil track, requiring the plaintiff’s lawyer to take a CLE course on ethics and civility, and ordered both lawyers sit down and eat an "informal" meal together. (Looks like each lawyer picks up his own tab.)  The court:  “At the end of the day, it should not be merely intelligence, skepticism, oratorical flourish, or the like that truly distinguishes the legal profession from others. Rather, as Shakespeare recognized, one hopes and expects that it is also civility.” That reminds me of a case I tried when I was a new and very young lawyer at the National Labor Relations Board. I was in deep East Texas, prosecuting an unfair labor practice case against a company. The company was defended by a lawyer in his late 60s. Lunchtime came, and he ambled over and said "Let's go get some lunch." I stiffened and replied, "I am a government lawyer, and I don't think that is appropriate." He looked at me evenly and said quietly, "Son, I have been a lawyer for 43 years, and I have fought fiercer fights than this one and had fiercer opponents than you, and not a one has ever refused to eat with me." I will tell you this: the Salisbury steak at the hospital cafeteria was actually pretty good.

Stop trying to fit in

Readers know I am a fan of Peter Bregman. I read with interest his Harvard Business Review column, 'Want to Keep Your Job? Stop Trying to Fit In." Here is his big idea: People spend too much time trying to make ourselves like others and not enough time just being ourselves. Bregman says,"[I]f you look like other people,if your business looks like other businesses,then all you've done is increase your pool of competition." He says we should not try to distinguish ourselves by being the same as others, only better; rather, we should spend more time trying to be unique. Why don't we do this? We're wired not to. Here's my interpretation of his message: People have been told since we were kids to be well rounded, be like the prom king and queen, don't rock the boat. Instead, he tells us to be ourselves, embrace who we truly are, and the rest will take care of itself. Liberate yourself. It is a lot easier and less energy intensive than being a pale copy of others.

The regarded-as claim is making a comeback

Quick question: An employee has a facial tic caused by Tourette's syndrome, and his employer fires him for it. Is the employee protected under the American With Disabilities Act Amendments even if the employer does not know the cause of the tic? The proposed new EEOC regulations say, "Yes." The employee has a regarded-as claim. Another example: An employee takes anti-seizure medicine and is not hired for a job as a result. Is he still protected even if the employer does not know the why behind the meds? Yes. Regarded-as claims will be making a major comeback under the amended ADA.

Thinking about implicit bias

I just finished reading "Consequential Strangers: The Power of People Who Don't Seem to Matter . . . But Really Do" by Melinda Blau and Karen L. Fingerman (I spend lots of time on airplanes). Their chapter on strangers and race struck me as interesting. They talk about the implicit bias project, which includes a test to determine if you have an implicit bias. The test displays white and black faces and requires the viewer, as quickly as possible, to pair the faces with either positive or negative adjectives. The test has been given 6 million times and it shows this: White, Asian, Hispanic and even black people show a pro-white bias, although the preference is weakest among black test-takers. Test-takers link males with science and career, and females with liberal arts pursuits and family. By the way, the implicit bias does not correspond with test-takers' explicit preferences. The authors cite research from Harvard scholar Mahzarin Banaji who says that the test does not show "prejudice" but a knee-jerk preference developed from our ancestors tens of thousands of years ago. Their lives depended upon sizing up their surroundings and doing so ASAP -- "This is me (good)" and "This is not me, a stranger (bad, danger)." People are wired this way. How to get around this? First, take the test. Second, don't try to force racial harmony. The site discusses the work of Jennifer Richeson, who found that those is a study who were told to "avoid prejudice" performed more poorly on an interracial interaction exercise than those just told to "have a positive intercultural exchange."(Guess Dr. Samuel Johnson was right: It is better to remind than to lecture.) The authors say Richeson's solution is basic: Stop trying so hard to appear that you are not prejudiced and simply enjoy the experience of getting to know another person.

The fierce boss

I took last Saturday off and read an interesting book by Susan Scott, "Fierce Leadership: A Bold Alternative to the Worst 'Best' Practices of Business Today." She talks about having hard conversations with employees. Her advice: Start with "I want to talk with you about XYZ." Do not say,:"I need to talk to you about XYZ." The first communicates strength and openness; the second communicates weakness and lecturing. She also suggests using the words "at stake." In other words, there will be consequences if the employee's conduct does not change. She notes that "at stake" has an emotional impact. And if the manager is partly at fault for the situation being addressed, acknowledge it. Finally, communicate positive intention by closing with "I want to resolve this issue." Make sure you describe the issue in  specific and concrete terms at the outset of the conversation. I would add this: Think about starting off with telling the employee what this conversation is not about, as in, "This is not about you being fired but is about how you treat your admin." Otherwise, the employee will start gap filling on what he thinks is going on and will not listen to your message. Good book, take a read.

Naps: a tool for workplace productivity

The October issue of the Harvard Business Review contains an insightful piece by Robert Stickgold, "The Simplest Way to Reboot Your Brain." The big idea: Naps during the work day make employees more productive. The science shows that sleep helps people, post-nap, integrate unassociated information for creative problem solving and that a nap boosts memory. In short, the employee becomes sharper with  information handling, and a nap, according to Stickgold, also helps with separating important information from extraneous detail. How long a nap is required? He says a micro-nap as short as six minutes (not including falling asleep) helps. Google has a pro-napping policy, he notes, and provides its employees with pods, blocking out light and noise so they can take a snooze.

The new ADA regulations: The hits just keep on coming

Flying to and from Nashville, I read the new ADA regulations from the EEOC, which was a real eye-opener. There's lots of meat to them, and here is one idea thread running throughout (cue the choir): "I once was sick but now am well, and thus I am covered" (apologies to the classic spiritual.) A record of a disability gets new life under the regs. If a person who once had a disability (recall that under the amended ADA proving a disability will be a breeze), then he is forever a protected person. Forever, even if he currently has no impairment or illness. And, in establishing coverage, the regs toss out the old idea that an employee must prove that an employer relied on the record of disability. This requirement is now part of causation, not coverage. One sop to employers: Receiving  disability benefits is not a proxy for a record of a disability. Oh, and guess what? Coverage expands to include those whose impairments are in remission or episodic. They, too, get Mercedes coverage under the ADA amendments and are treated just like those who have ongoing disabilities. I can hear managers now, "Are you telling me that I can be sued by someone under the ADA who is A-O.K., in fine fettle, fit as a fiddle and not even disabled?" The answer,it seems, is "Yes." 

Proposed regs on ADA amendments = lots of litigation

The ADA Amendments went into effect on Jan. 1. In June,the EEOC started the process of revising its interpretation of the ADA in the Code of Federal Regulations. My modest prediction: lots of litigation, real soon, employee victories. A couple of interesting thing from the proposed regulations: Work is now a major life activity. There was some doubt about this under the previous statute. Under the proposed regs, an employee is substantially limited in the major life function of working if she works at ABC company doing XYZ job and is denied a reasonable accommodation. Plus, if she goes to work for another employer doing XYZ but with a reasonable accommodation, she is still considered substantially limited in the major life function of work. Also, the proposed rules provide that a statistical analysis as to the extent of a person's limitation in working is not necessary to establish a substantial limitation in the major life activity of working. Some courts, including those in the 5th Circuit , said that a plaintiff -- to prove a  substantial limitation in working -- had to present stats on the number of jobs she could not perform because of her impairment. No more. These issues will be big. Look, the work world is tough. I was reading http://mindfulbeginner.com, which mentions that "it might seem we're rushing to get somewhere." I know the feeling. Still, the blog counsels us to value the journey, not the destination, and quotes a poem I have always liked: "Ithaka" by C.P. Cavafy. I believe it was read at the funeral of Jacqueline Kennedy Onassis. W.H.Auden wrote a homage to this poem, "Atlantis." Give it a read as well. Poetry cures what ails us.

Harness self interest to elicit workers' best efforts

I flew to Los Angeles last week for interviews in a suit. Each three-hour flight meant time to read. Here is one book I liked: "The Wow Factor: The 33 Things You Must (And Must Not) Do To Guarantee Your Edge in Today's Business World" by Frances Cole Jones. (The title makes me wince, too, but it's a worthwhile read.) Anyway, the author makes mention of aligning your interests with your customers’, à la all the talk about firms sharing the risk with clients and having skin in the game. She notes a couple of examples, one ancient, one modern. It's Rome, circa 250 A.D. A bridge goes up, and the scaffolding comes off. Here's the twist: The guy who designed and built the bridge must stand underneath it when the scaffolding is taken down. Here's an example from more modern times. The Marine Corps, to its great credit, creates a true team ethic. Marine Corps riggers assemble parachutes for others. But the riggers must jump once a month, and you as a rigger jump wearing a parachute you assembled. The lesson: Keeping the interests of a business consistent with the interests of customers and clients is smart. As my mother said, "Speak to people in a language they can understand."

The art of apology

Rep. Joe Wilson, R-S.C., yells out to our president, "You lie." Rapper Kanye West grabs the microphone from country singer Taylor Swift, who is about to accept an award for best music video. West thought another entry was better and decided to say so. Serena Williams gets a call from an official at a tennis match and disagrees with it by saying what she will do with the ball vis-à-vis a body part of the official. Editorials bemoan the lack of civility, but incivility has always been with us and always will be. A moment of anger or frustration or nuttiness comes to us all; each of us is all too human. What is more important is how people apologize for our actions. We need a renaissance in how to say we're sorry and mean it. This is especially important in the workplace. First, let me say what is not an apology: West saying he is sorry and then following up by remarking "I'm just real." The latter nukes the meaning of the former. Recall the Mel Gibson apology after hurling a string of anti-Semitic comments at a police  officer -- saying that her did not intend to offend. Or those who say, "I'm sorry  you misunderstood." These are not heartfelt apologies but, like West's apology, designed to let the offender have it both ways. What should employers and their lawyers look for in determining a real apology?

• Is there an explicit, unequivocal acknowledgment that the conduct was wrong and outside accepted norms of civil conduct? That means no weasel words, no lawyer-like equivocations, no nuanced meanings.
• Does the offender reflect on why he did what he did?
• Does he give thought on how to avoid the conduct in the future?
• Does he demonstrate real empathy for how the conduct affected the other person?

At work, the nature and content of the apology is a key element in deciding a proportionate response to the offender's conduct. (The last time I apologized was a few months ago. In a deposition on a hard-fought case, the lawyer on the other side was a friend of mine. During the deposition I was asking questions, and she laughed. I snapped, asking what was so funny. She did not say anything. The next day I said I was sorry, that she did not deserve my harsh response. She quietly said it was OK, and she was just laughing at as turn of phrase that I made. Talk about feeling like an idiot. By the way, a good apology does not stop because the person offended gives an easy and early dispensation.) Society should not measure progress by whether more or less uncivil conduct occurs. We should measure it by how we respond to our out-of-bounds conduct, how we adapt ourselves to what we did so we are not repeat offenders and by how we make ourselves better people. I was raised Catholic. All this uproar got me thinking about something I have not read in years, "The Act of Contrition." While the issue in it is sin, not misconduct, I recently re-read it. Its message is solid: "I firmly resolve, with the help of Your grace, to sin no more and to avoid the near occasion of sin." I love the line on "near occasion." Kayne, Serena, Joe and Mel, should all take a read.