Last month, I wrote a blog titled, “A Holiday Tale by a Jewish Guy Who Wears a Chai.” I wanted to address the serious potholes we navigate around the holiday season, but in a fun way.
I dedicated the blog post to my grandparents. I shared how I miss lighting the menorah candles with them.
In response to the post, I had a lot of conversations with clients and other friends about the legal and HR issues raised. But more than that, many shared with me stories about memories of holidays past with their grandparents and others no longer with us.
I was not surprised by how similar the feelings were, even if the traditions differ. Missing those whom we loved, but have lost, is universal.
I was struck by how many people wanted, perhaps needed, to share personal stories and the feelings that go with them. I was honored to listen to the humanity shared.
That brings me to our workplaces. Is there room for such humanity?
Our non-discrimination laws are vitally necessary. They are not about legal technicalities; they are about core values.
Yet these necessary and laudable laws can have unanticipated adverse consequences in the workplace. Sadly, humanity can be risky.
An employee appears to have every obvious indicator of depression. But if you ask him if he is depressed, you may incur a perceived disability claim under the Amercans with Disabilities Act (ADA) if there is an adverse action later.
An employee tells you that her mother has breast cancer and her sister died of the same disease. You want to tell her to get checked by a doctor. But if you do, you may invite a Genetic Information Nondiscrimination Act (GINA) claim if there is an adverse action later.
An employee is clearly struggling with work-life integration. You have had similar struggles and want to offer suggestions. But if you do, you may get hit with a Title VII claim (relative to caregiver bias) if there is an adverse action later.
What do we do? Keep all of our colleagues at arm’s length to avoid any claims? Don’t our colleagues have that same human desire to share and connect that we do?
We may think we are avoiding all risk if we keep things “strictly business,” but that is not the case.
As a business matter, most employees are not only good workers, but also good people. Knowing that someone with whom you work cares about you matters. It can affect engagement and productivity.
As a legal matter, people may sue their employer technically, but they are suing people practically. Good relationships can inhibit litigation; people may talk with you about a real or perceived wrong rather than a lawyer if they see you as a person who cares about them and not just about liability.
We all know that, in human resources, we need to play in the gray. So perhaps the black and white lines we have drawn between professional and personal need to be re-visited.
We want to be compassionate. We need to be prudent. I believe we can be both. It just means being thoughtful about how we are going to be thoughtful.
For example, if someone is visibly upset, it is lawful to ask “what’s wrong?” But the answer may be personal. You can get to the same place with less risk by asking, “Is there anything I can do to help?” If it’s personal, the person can easily say "no," but still knows you care.
Or, let's say that you see on an employee’s desk brand new pictures of children. You don’t want to ignore them. You also probably don’t want to ask who the kids are or make any statements with assumptions. “Nice pictures” is the middle ground that acknowledges humanity without prying. That allows the employee to tell you who they are without your asking, if the employee wants to do so.
Finally, let’s return to the employee whose mother has cancer. While I would not encourage her to get checked, I would let her know that my thoughts and prayers are with her and that I am available if she wants to talk.
Is there a risk if she wants to talk? Yes.
There is a risk every time we get in a car, but we all do it.
There is a risk every time we terminate a poor performer, but we all do it.
There is a risk every time we tell an employee who believes there is harassment when there is not that there is not, but we all do it.
Why do we draw the line on taking risk when it comes to being human?
I don’t pretend to know exactly where to draw the line in every case. I do believe that there is still room for humanity in human resources.
THIS BLOG POST SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO A SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.