Reducing Identity politics in the Workplace

The official American vision of equality has been one of a society in which group identity is legally irrelevant, where individual conduct is the only proper concern of government, and individual merit the only determinant of reward in the workplace. In such a meritocracy, individuals are rewarded or punished based upon their behavior and performance; race, religion, gender and similar markers of group affiliation are unrelated to one’s legal or employment status, however meaningful those affiliations may be to the individual otherwise. The civil rights movement spoke so powerfully to the nation’s conscience because the treatment of African-Americans was so blatantly inconsistent with our stated commitment to equality and fundamental fairness.

The current, rancorous debate about affirmative action among academics, Human Relations practitioners and politicians has eclipsed for a time the older arguments about civil rights laws generally, and about their operation in the workplace specifically. Such laws establish categories or classes of persons who are to be "protected" against certain types of discrimination, primarily, but not exclusively, arbitrary employment practices. Ever since the passage of the 1964 Civil Rights Act, employers have complained that nondiscrimination laws constitute an additional regulatory burden on business, while civil rights advocates (citing the Act itself, and later the Supreme Court’s language in Griggs v. Duke Power) have argued that compliance requires nothing more than the sorts of sound personnel practices that successful businesses have long found to be effective management tools.

While most Americans clearly agree with the proposition that people ought not be subjected to invidious employment discrimination based on race, religion or other criteria unrelated to job performance, current laws do not necessarily represent the best approach to that problem. It is our view that the "group identity" approach has retarded, rather than promoted, the adoption of sound and valid personnel assessment tools, and that attempts by U.S. business to reconcile the mandates of current civil rights law with effective corporate human resource practices represent a heroic but fundamentally flawed effort. Furthermore, that effort is being made mainly, if not exclusively, by business leaders and human resource practitioners, often over the resistance (active or passive) of others in the workforce.

In this paper, we outline an alternative model which we believe to be legally defensible and which, at least on its surface, can be viewed as superior to the current model for attaining fairness in the workplace. In our view, the difficulty of gaining support for an alternative to the "group identity" model reflects the influence of several forces. The most powerful of these forces are a natural resistance to change among human resource practitioners, the risk-averse strategies recommended by corporate lawyers to their clients, and the failure of academics and other analysts to develop and communicate the possibility of other options that might be superior.

In this paper, we briefly review the inherent contradictions embedded in "group identity" remedies, and outline an alternative strategy, a performance-based model based upon proposals that have already received considerable legal scrutiny. Finally, we focus upon termination practices, an area we believe demonstrates the most problematic application of "group identity" remedies.

The Civil Rights Act of 1964 was an attempt to ameliorate the injustice of discrimination based upon race or gender. The goal was worthy, but at risk of committing social blasphemy, we would suggest that the approach taken — at least insofar as it addressed employment termination — was shortsighted, and ultimately reinforced many of the tensions it was intended to erase.

?The Civil Rights Act, and the various state statutes modeled on it, established "protected" classes: that is, it identified categories of people who were to be protected against discrimination based upon their membership in the groups identified in the legislation. Group identity is key to the law’s protection and in that sense, the Act simply codified differential treatment. The purpose was benign and remedial, but the emphasis upon group membership, which has remained constant over the years, has arguably engendered a different set of problems. Despite the enormous amount of good civil rights laws have done, the fact that they ground protection upon membership in specified groups has led to troubling consequences as well as positive ones. On a symbolic level, civil rights statutes encourage Americans to consider themselves members of social subgroups competing for advantage, rather than as individual citizens of the larger polity. Partly as a result, we have seen the emergence of so-called "identity politics," in which various minorities compete for comparative advantage. Recent studies (Diekmann, Tenbrunsel and Bazerman, 1997) suggest that competition between groups is more polarizing than competition between individuals.

"Taking more for one’s group seems to be more legitimate than

taking more for oneself, even though one benefits in both cases.

Implicit in the act of allocating to one’s group is the justification that

other people will benefit; there exists the possibility that taking more

for one’s group may reflect the individual’s genuine concern with

the welfare of fellow group members and not just greedy behavior…

The problem arises when one’s opponent in the negotiation is also

representing his/her group.

While civil rights statutes were enacted primarily as a result of discrimination against African-Americans, we have steadily increased their scope to include women, religious minorities, veterans, the disabled and a variety of others. At this writing, eleven states include sexual orientation as a protected class. Several states have moved to ban job discrimination against smokers. With the advent of genetic testing have come efforts to ban genetic discrimination in the workplace. There are even lobbies arguing for legal protection for people who are fat, but not sufficiently obese to be considered disabled and thus within the ambit of the Americans with Disabilities Act (yet another civil rights law affecting employment).

The group identity paradigm for workplace fairness relies upon a strategy of enumerating each potential category to be covered by a nondiscrimination law. That is, in order to gain legal protection against discrimination, groups have historically had to demonstrate a history of particularized disadvantage entitling them to remedial legislation.

In practice, workplace termination laws have reached a point where it has become increasingly less likely that perceptions of fairness or equality can be sustained using remedies based upon group identity. Our proposition is that the greater the number of categories of employees protected against improper termination under current employment law, the smaller the percentage of employees who will view the process as fair and just (Gleason and Roberts, 1977).

In one sense, this proposition is an extension of a research theme that has a long history in the social sciences. Since Simmel (1908), social theorists have noted that as societal groups recognize additional distinctions, more categories of social identity, the members of that society differentiate their networks into smaller "in groups" surrounded by increasingly greater "out groups." As Homans (1964), Blau (1972) and others have observed, differentiation increases as the number of social categories increase. With increased differentiation, individual members are more likely to feel isolated from the larger society and to respond to that isolation by placing their allegiance with the in-group culture. For a differentiated society to function well, there must be a corresponding increase in in the number of integrative mechanisms among subgroups. Such mechanisms allow the society’s isolated, differentiated members to unite and achieve consensus. In today’s workplace, the effects of differentiation are everywhere apparent, and are arguably exacerbated by identity-based civil rights laws. We believe that in the area of employment termination practices, at least, it is time to support integrative rather than differentiating mechanisms.

???Issues Created by Enumeration

Enumeration creates both enforcement problems and policy concerns. Any lawyer who practices in the area of employment discrimination will attest to the prevalence of the following phenomenon: a woman is discharged; she feels that the termination was unfair. Her state (like all states except Montana) has some version of "at will" employment. Having no remedy for simple wrongful termination, the employee alleges gender bias, and the employer must defend the decision by producing records and other evidence sufficient to dispel the accusation. State Civil Rights Commissions and EEO offices spend a considerable amount of time investigating such allegations, which contribute substantially to agency backlogs. It currently averages 293 days from the date of filing for a claim filed with the EEOC to be resolved (EEOC, 1999).

Most troubling is the resentment generated by the widespread belief that only minorities are protected from arbitrary termination. Defenders of civil rights laws often assert that everyone falls within a protected category: after all, we all are members of a race, hold to some belief, have gender. Therefore, the argument goes, there is no disparate treatment, because everyone is covered. This argument ignores the fact that no one in any of the enumerated groups is covered unless the termination is based upon the protected status, an occurrence that is far more likely if one holds a minority status, and dismisses as irrelevant the widely held popular belief that civil rights laws primarily benefit women and minorities.

Right or wrong, employees unfairly fired for reasons unrelated to proscribed discrimination often express resentment that minorities have "special rights" or protections not available to them. Right or wrong, smaller businesses–those without the benefit of sophisticated legal and human resources departments–demonstrate a reluctance to hire minorities, believing that civil rights laws will make such employees more difficult to discharge should that become necessary (Varnell, 1999, Olson , Koss-Feder, 1999). That resentment and reluctance, coupled with the growing hostility to affirmative action remedies, does not bode well for the society of equals envisioned by the authors of those measures. Policy makers are thus left in a quandary: ignore the very real structural inequality that persists in American society, or continue legislative initiatives that may fuel new animosities.

In addition to these policy, enforcement and individual justice concerns, the current direction poses difficult questions for business. For years, human resource managers in firms covered by state and federal civil rights laws have complained that the group identity model is a reactive one, that it directs corporate attention away from human resource development and instead creates a bureaucratic mindset that emphasizes record-keeping and compliance. Moreover, the current model provides little room for U.S. firms to develop more innovative strategies to ensure fairness in termination practices.

This is not to be construed as a criticism of HR departments. It is a recognition that Human Resource practitioners confront two realities: first, in the current model, the "fairness" of a termination will be shaped by how government agencies and the courts define protected categories, and the status of those categories is often in flux. Witness, for example, the emergence of smokers as a protected category, the emerging use of genetics testing to control health care costs, and the expansion in the scope and definition of sexual harassment laws, which now protect men and homosexuals as well as women in an increasing number of workplace situations. It is difficult to identify strategies to enhance fairness and equality when the very categories that must be protected cannot be controlled by the employer.

Second, group identity is not an attribute of the workforce that can easily add value to the goods and services offered to customers. While there are examples to the contrary (i.e., some clients may prefer to purchase their goods and services from female-only firms), in general, most businesses do not directly benefit from the categories covered. Since the attributes involved do not directly add value, compliance with discrimination laws is increasingly treated as one more category of unavoidable business expense. Because prevailing expense reduction practice is through risk minimization, the issue becomes "what is the level of legal risk that my firm can accept in order to minimize costs of compliance?" rather than "how can I increase morale and productivity by ensuring workplace fairness?"

?The combined effect of these two forces is to divert attention from issues of equity to those of compliance. It becomes difficult to construct a scenario within which a significant number of U.S. firms will actually attempt to create and refine a model that leads to progressively greater satisfaction with termination laws by their workforces, let alone among members of society in general. We believe that it is possible to envision a different scenario, where it could realistically be expected that business enterprises would be at the forefront of society’s efforts to achieve fairness and eradicate bias in the workplace. . Even given current disincentives, experimentation with new approaches is occurring, as employers become more and more dissatisfied with current dispute resolution mechanisms and look for a more cost-effective approach (Diekmann, Tenbrunsel and Bazerman, 1997).

We are neither Pollyannas nor apologists for the current state of racial/ethnic relations in America. We fully recognize that there are no easy answers to the larger social dilemma of entrenched racism and sexism. We wish, however, to suggest an approach to the workplace that we will argue retains the protections the current system offers to members of historically discriminated-against groups while simultaneously eliminating much of the perception (and fact) of special protection. Our focus will be limited to a single area of employment law: the wrongful termination of full time employees.

Termination is a relatively discrete legal area, without many of the complexities that characterize promotion, hiring and harassment jurisprudence; we believe that a proposal limiting the change we propose to terminations, where there is a broader recognition of existing systemic inadequacies, would encounter fewer conceptual and political obstacles than a more wholesale approach to workplace nondiscrimination law.

We propose adoption of a national productivity based standard for employee terminations.

Broad public support for anti-discrimination laws are actually based on a very simple notion of economic justice that contains but transcends race, religion and gender. In the court of public opinion there are many legitimate reasons an employer might fire an employee: the employee does not show up for work on time, is disruptive in the workplace, or consistently under-performs relative to peers or potential replacements. Firing a worker because she can’t or won’t do her job, or because his behavior impedes the performance of a co-worker, is widely understood and generally considered legitimate.

There are also many reasons an employer may have for firing an employee that are not considered legitimate in the court of public opinion: the employee rejects a sexual advance by her employer, is a member of a particular ethnic or racial group, has red hair or wears plaid leisure suits. If a worker is doing her job, termination for some non-job related aspect of the individual’s life is widely seen as illegitimate. Under certain circumstances, such terminations have even been held to violate public policy. (Toussaint, 1978; Nees, 1975; Hinrichs, 1977; Percival, 1976 ) Of course, many of the "illegitimate" reasons listed have been tested in state courts and, depending upon the prevailing status of the state’s "at will" doctrine, very "illegitimate" reasons for workplace termination have been deemed perfectly legal.

Reviewing the "legitimate reasons" for termination enumerated above, a single common thread emerges: the discharge is based upon the employee’s productivity or effect on productivity in the workplace. Correspondingly, the illegitimate reasons for firing also share a common element: they are unrelated to the employee’s productivity or effect upon productivity. If the broad public consensus that distinguishes between legitimate and illegitimate employment dismissal is in fact productivity based, why should not the law reflect this normative sentiment? It may be illuminating in this context to reread a portion of the opinion written by Chief Justice Burger for a unanimous Supreme Court in Griggs v. Duke Power in 1971:

"Congress has not commanded that the less qualified be preferred

over the better qualified simply because of minority origins. Far from

disparaging job qualifications as such, Congress had made such qualifications the controlling factor so that race, religion, nationality

and sex become irrelevant. What Congress has commanded is that any

tests used must measure the person for the job and not the person in the

abstract."

As many authors have observed (e.g., Rowland and Ferris, 1982), "with this strong statement emphasizing the role of job qualifications, the Supreme Court has reaffirmed what Title VII commands. Job-related standards are the foundation upon which fair employment practices are built." Legal analysts and HR professionals can only speculate about the reasons Justice Burger’s straightforward advice remains largely unimplemented, particularly since literature in the field has steadily underscored the business benefits accruing from the development of such standards. There are, of course, costs associated with the development of valid job descriptions and personnel assessment tools. Firms not large enough to be covered by civil rights laws, and those believing themselves safe from enforcement actions for other reasons, have often lacked motivation to revise their existing personnel practices. Whatever the reason or reasons, many employers continue to hire, promote and fire without the benefit of such analysis, and to promote and terminate employees without using any written, validated assessment tool tied to job qualifications.

Most HR practitioners would argue that when a decision is made to terminate an employee, the appropriate tool used to inform decision makers is an unbiased, validated performance appraisal system. It would seem that there is both a legal and historical basis for asserting that an objective standard based on performance, and not an "at will" standard or a "group identity" standard, should be a uniform practice for this country’s businesses.

An objective, validated standard for performance would encourage three very important outcomes: First, a productivity standard replacing current Civil Rights laws insofar as they apply to dismissals would direct energy away from "identity politics" and toward productivity, minimizing the differentiation identified by Simmel et al. Second, a productivity standard replacing the "at-will" standard for employee dismissal currently in place in all states except Montana would protect millions of workers who are currently unprotected against arbitrary and unfair termination. (Maltby, )

The at-will doctrine holds that oral contracts of employment under which the employee supplies no consideration other than labor are terminable at the will of either party, for any or no reason. Even the most arbitrary and capricious discharge will not violate the employee’s rights, because in a very real sense, the employee has no rights–no right to the job and no right to be free of unfair termination from the job. Employers are free to hire and fire anyone, at any time, for any reason at all, so long as the decision does not amount to discrimination under any of the applicable civil rights laws, breach a union or employment contract, or violate public policy.

The status-quo of at-will contracts cum enumerated civil rights protections leads to obvious inequities. Under current law, an African-American dismissed simply because he is African-American has legal recourse, but a native of Mississippi dismissed because his employer "doesn’t like crackers" has no such recourse. Moreover, the perception that members of enumerated groups who are not performing are afforded "special rights" that make termination difficult is socially corrosive. Under productivity-based standard an employee’s racial identity would be legally irrelevant. The underperforming member of a minority group would have no special legal recourse–perceived or otherwise. However, any employee performing up to a productivity standard would have legal recourse for an arbitrary firing–regardless of ethnicity or other group affiliation. This is, in our minds, more in the spirit of the original civil rights revolution and more consistent with widely held notions of fairness than the status quo. The net effect of the first two outcomes would thus be to replace current unpredictable, uncertain and often conflicting guidelines for HR practitioners with a rational, transparent and just standard.

An immediate benefit of the first two results would be to reduce significantly the costs of compliance with current legal mandates. However, it is the third result flowing from adoption of a productivity standard which offers the greatest promise for business. If states adopted a uniform, national standard for justice in termination based on productivity, use of performance management systems by employers would substantially increase. For decades, HR practitioners have called for greater and more extensive use of rigorously developed performance appraisal and evaluation procedures in business. Many companies have reported great success using such systems to improve employee performance while reducing legal challenges to dismissals. (Rowe, 1977) In fact, over the last decade researchers have reported an impressive list of organizational benefits accruing to companies employing valid performance appraisal procedures for promotion, reward and recognition, training and development, supervision and termination. Techniques for establishing and implementing a performance management system have become more rigorous, systematic and research-based. Still, as we have previously noted, surveys of the field provide limited evidence that corporations rely on such performance measurement tools when making termination decisions. It may be that existing laws have created a situation characterized by corporate cognitive dissonance: the business analyst recognizes the benefits accruing from use of performance evaluation tools in terminations; the legal analyst recognizes that legislative and regulatory requirements must be satisfied whether or not the steps taken enhance performance or the bottom line. Performance management considerations, understandably, get subordinated to legal concerns and the desire to avoid governmental enforcement actions and/or potentially expensive lawsuits.

If performance and legal concerns were made complementary, and use of the performance review became the standard by which compliance was measured, we believe that U.S. businesses would be making a highly favorable trade: replacement of two unstable criteria, the at-will doctrine and identity-based discrimination laws, with a criterion based on productivity that could also be grounded in law and based on a technique, performance review, that is already recognized as a valid tool for termination both by HR professionals and the courts.

As appealing as a shift towards a performance-based standard for U.S. business might be, there are many who would argue that the definition of productivity is inherently subjective and difficult to quantify. While we concede that such tools can be difficult to fashion in some workplace environments, we believe that valid measurement of job performance can be accomplished for nearly every job, using behaviorally-anchored rating scales or behaviorally based assessment centers. The overarching purpose of a performance evaluation system is to identify key performance dimensions, to develop a valid and consistent procedure to measure performance along these dimensions, and then to provide valid information on the differences between individuals’ performance on the job.

Validation strategies for performance evaluations are not new, and several strategies for validation have been well-tested. Recently, attention has centered upon behaviorally-anchored rating scales and assessment centers. Each method has been proven to yield a reliable and predictive measure of employee performance.

Once an appropriate assessment tool has been created, the following very broad principles might serve as a starting point for development of the rules governing the termination process:

*a worker could properly be dismissed for failure to perform up to an explicit standard outlined in the original terms of employment. Such standards might include sales or production quotas, policies on absences and tardiness, inferior workmanship, and/or unwillingness to co-operate or take directions.

* a worker could be dismissed for failure to perform up to explicit performance standards developed with reference to other workers in the organization. A worker who had 15 days of unexcused work absences in a calendar year when other employee averaged 2 days would be an obvious subject for legitimate dismissal- even if no numerically explicit absence policy was in place at the time of hiring.

*workers could be dismissed when technical or economy-wide changes in the workplace operate to make the employee or the employee’s skills redundant. Employees can be replaced by machines, laid off because of declining business conditions, or terminated because of organizational down-sizing, so long as the selection of the employees subject to the replacement or downsizing is based upon the relative productivity of the worker, and not upon extraneous or non-employment-related factors like ethnicity or sexual orientation.

* workers could be dismissed if their performance is evaluated poorly when assessed using a validated performance evaluation tool.

While there are many benefits to be derived from adoption of a performance-based standard, it is likely that proposals to move the legal system in that direction, such as the Model Termination Employment Act, will meet with strong opposition from both sides of the political spectrum. (It is instructive to note that the Model Act has thus far not been adopted by a single state, although Montana has passed a vastly truncated version.) American business will decry the passing of the "at-will" doctrine, while civil rights activists will likely argue that civil rights protections should be strengthened rather than subsumed within a generally applicable standard.

The persistence of at-will employment reflects a philosophical commitment to the employer’s right to manage his or her own business, free of second-guessing and meddling by government agencies. In the final analysis, the law presumes that business firms will have both the motive and capacity to judge employee performance on productivity grounds. It is thus important to point out that the productivity based standard we propose is fully consistent with this presumption. While such an approach would require employers to justify all terminations on productivity grounds, and would burden employers by requiring them to maintain formal performance records for all workers, the system would at least have the virtue of uniformity. Moreover, once an assessment procedure is validated, it becomes a potent tool for increasing productivity and morale by reducing employee suspicion of, and dissatisfaction with, the termination process.

Finally, the existing patchwork of overlapping state and federal regulations employers currently face imposes significant compliance costs, due to the need to comply with uncertain, often conflicting and sometimes onerous legal and record-keeping requirements. Those costs would be significantly curtailed under the system we propose.

Whatever the merits of our proposal–arguably, greater transparency, simplicity and fairness–it is likely to be viewed with a jaundiced eye by employers who currently hire and fire at will. It is true that some terminations which would be perfectly legal under current law would be curtailed under our proposal. Workers who have no recourse today would be able to challenge their terminations. Passage of a uniform national policy of the sort we suggest would be difficult enough given the various constituencies with vested interests in the current legal landscape; it is politically impossible unless business owners receive benefits sufficient to offset new restrictions.

A commitment to such mutuality was the starting point of the Model Employment Termination Act, drafted in 1991 by the National Conference of Commissioners of Uniform State Laws. While our standard for termination differs somewhat from that advanced in the Model Act, and while we would replace existing civil rights laws rather than add yet another layer to existing employment regulations, we would endorse and adopt many of its essential provisions:

The Model Act permits the parties to waive the requirement of good cause by express written agreement, provided that termination for any reason other than willful misconduct will be accompanied by severance pay equal to one month’s pay for each year of employment, not to exceed thirty months. This provision allows employers, in effect, to "insure" against costly legal proceedings in all but a very few instances.

The Act limits employer liability in other ways. There is a requirement that the employee file a complaint within 180 days following termination; most state laws now allow at least two years for a tort action filing. The complaint must be subject to alternative dispute resolution (arbitration), and the burden of proof is on the employee to establish that the reasons for termination were impermissible. This is a significant concession to employer concerns, because the party with the burden of proof has a measurably more difficult task in establishing a legal claim. Furthermore, even if the employee can carry the burden and prove that termination was based upon prohibited criteria, the employer can still avoid liability by demonstrating the existence of independent permissible grounds that would have justified the termination.

?The Model Act is a thoughtful and comprehensive approach to the problems posed by current termination law and practice, crafted by labor law practitioners versed in the competing interests of employer and employee in the workplace. Its basic features, outlined above, represent a judicious balancing of those interests. We believe that the Act would have great appeal, if it were viewed as a replacement for, rather than a supplement to, current laws constraining worker termination policies.

Should the Model Act or another version of the productivity based just cause standard be put in place as a substitute for current law governing terminations, we might hope for at least three benefits.

The first would be a reduction of so-called "identity politics." Aggrieved groups would not need to lobby the legislatures for new statutes protecting their members; protection would not be seen as "special rights" or a zero sum game.

The second likely effect is arguably the most important: racial, ethnic, and other inter-group resentments would be lessened, because everyone would be playing by the same rules. Employee rights and remedies, at least with respect to termination, would no longer be dependent upon ethnicity, geography, union membership or employer identity. The law would no longer encourage people to think of themselves as representatives of a particular group, but would acknowledge them as individuals who are entitled to fair and equal treatment.

Third, it is likely that, on net, business firms would be less burdened by the productivity standard than they are by the status quo. The productivity standard does in effect mandate significant record keeping to protect against wrongful termination claims. However, current civil rights provisions essentially do the same, since an effective defense against a discrimination suit requires that an employer have records for all employees sufficient to rebut charges of differential treatment. Under the productivity based system we propose, damages are limited, procedures standardized, and adjudication simplified; virtues that should more than offset any increased record-keeping. The net benefit to business in all likelihood would be substantial.

?Whether this proposal gains momentum will depend largely on the position that business adopts. There is little doubt that if there is to be a shift, support for the change needs to come from the business community. There are many philosophical and practical barriers which could hinder that support: philosophically, many will resist any weakening of the "at-will" doctrine; practically, there is a natural conservatism that such a proposal would confront, even in the face of significant probable benefits. Many businesses will resist the costs involved in establishing valid employment evaluation tools. And there is an obvious problem in that many firms currently not covered by civil rights laws would be covered under a uniform, performance-based approach.

These obstacles are serious, but so are the opportunities afforded by any proposal that systematically addresses the complex problems of compliance facing U.S. businesses today. Whatever one’s philosophical approach to employment law, it is hard to defend the current system which, in pursuit of fundamental fairness, imposes onerous compliance costs on employers, exacerbates inter-group tensions, and fails to protect the majority of employees from capricious and unfair dismissal. We believe our proposed alternative merits serious examination, analysis and debate.