Part I - How Human Resources Has Disgraced Itself in the Global Crime Against Humanity Age known as the "COV!D" Era
How Cooperation With That Which is Known to be Unlawful (and indecent) Has Disgraced the Profession
Immediately after I completing my M.B.A., I got hired by one of the most blue-blood corporations in Boston. New to Boston as a graduate student and a New Yorker to boot, who woulda believed I’d find myself hired into a management position in Boston? Yet I did — getting an offer before I even graduated…A great job for a new M.B.A. and my first foray into managing and hiring people.
It was in this role that I began to gain firsthand experience with federal and state law related to lawful hiring practices, employment discrimination, legal and illegal interview questions, medical and religious accommodation, etc.
I had solid-line management responsibilities for a team of account professionals who managed day-to-day client relationships. This included making requests for “moving around” millions of dollars in loans. As the business grew, I needed to add a couple of these account managers to the team. These additions grew my total people management responsibilities to ten. On that team, I had three Americans of European descent, two African Americans, one of whom was a Jehovah’s Witness, a Nigerian immigrant, a Ukrainian immigrant, a West Indian, a Greek Orthodox, and an Asian Indian.
You can imagine the varied needs of a team like this when it came to observing various holidays and religious practices. I was happy to make them — without the law requiring it — and the individuals themselves were happy to step up as necessary to cover for each other. This also included recognizing the requirements of the Jehovah’s Witness. For example, she had to abstain from the celebrations we’d have for birthdays or Christmas. While we all wanted her to join in, we knew she could not and respected that. In other words, we knew we could not make her come to the conference room, sing “Happy Birthday,” and eat cake…Period.
After nearly six years, I left that job for one in Human Resources — specifically, recruiting. I joined a large, multinational staffing company. We helped companies find “talent” for both permanent and temporary roles. This was at a time when the economy was in one of its “down turns,” so we had people registering with us every day, desperate for work.
Our doors were open to the public. A wide variety of people of varying backgrounds, skill sets, interests, educational levels, and abilities came through them. This included hiring and placing those with various disabilities, including vision, mobility, auditory, etc. We worked with native-born U.S. citizens, legal immigrants, permanent residents (“Green card” holders), and those on student visas. By law, we were required to make sure everyone we hired was eligible to work legally in the United States. You’ve probably completed the federal form for documenting this — Form I-9. Student visas, which come with distinct requirements and restrictions, had to be adhered to strictly.
Determine, Don’t Discriminate. The Law Forbids It.
To determine eligibility to work legally in the United States, we had to ask every single person the same question. We could not assume based on outward appearances of any kind that an individual was or was not eligible to work in the United States. To do so would be to unlawfully discriminate and believe me, I heard plenty of stories of people in this business making that mistake and having it come back and bite them — hard. So, the question everybody got asked in the same way to avoid any bias, accusations of discrimination, etc.:
“Are you able to provide proof of your eligibility to work legally in the United States?”
See that? To get at eligibility, we could only ask if the person had the proof of same. We could not ask if the person was a U.S. citizen. We could not ask — based on outward appearance or “foreign” accent,” perhaps?? — if they had a “Green Card.” A “Green Card” holder can work legally in the United States, but they’re not citizens…We could only ask people seeking work if they could work legally in the United States. Period.
For that proof, we could only tell them what we could accept without suggesting or indicating a preference for one means over the other. For example, a driver’s license and a Social Security card is one way. Those two serve as proof of identity (license) and citizenship (Social Security card). A United States passport is another; it serves as both proof of identity and citizenship. A “Green Card” is another. Again, no specifics, just a lawful request for documents that prove the eligibility to work legally in the U.S. Determine. Don’t discriminate.
Another example of “Determine. Don’t discriminate” that some of you might find hard to believe relates to getting to work. Unless having a car was a bona fide job requirement, we could not ask if a person had one as a means of determining their ability to show up for work. “You can’t ask if they have a car?? Why not?” If the intent is to determine whether a person will be able to report to work as scheduled, the “most lawful,” e.g., the safest way, to ask the question is this:
“Do you have reliable transportation?”
That is a legal question, but it omits any bias toward means of transportation. Yes…people can make the argument (and have) that it’s discriminatory to ask about having a car if it’s not required for the job itself. So, ask the question, “Will you get to work reliably?” as shown above. It is irrelevant if the person’s “reliable” transportation is a car, a train, a bicycle or her mother drives her there. She answered she has reliable transportation. Period. Determine. Don’t discriminate.
Reasonable Accommodation - The Law Requires It
By the time I got to my last job, I had nearly ten years of recruiting experience. I added another 10.5 years to that tally by the time I left my final position in December 2020. Over those 20 years, I accumulated many examples of making both medical/disability and religious accommodation for employees. I thought I’d share a few to give you an idea of what lengths companies must go to make reasonable accommodation.
The building where I worked in my first staffing/recruiting job was considered a historic building. The town had very strict guidelines on what could be done. For example, the old windows rendered winters miserable, but apparently, no renovations could be made to them since the building was “historic.” Lovely. I bought a space heater for my office to avoid freezing to death during those legendary Boston winters.
Our office was at the end of the floor to the right as you exited the elevators. Between the elevators and our office was a set of stairs (three or four steps as I remember). A young wheelchair-bound woman wanted to interview with us. Since no permanent ramp could be added, we had to figure out how to enable her to navigate those stairs.
We called “Fred” (not his real name) who did all the maintenance. Delightful guy who seemed able to fix anything. We told him of our problem. He got right to it and built a wooden ramp that we could place on the stairs when this woman was scheduled to come in and remove after she left. I’m not even sure the A.D.A. required that we go to those lengths, but we did. We thought that was reasonable accommodation. We could do it, so we did do it.
Under different circumstances, different company, I can remember an app developer we hired. He did fine during the interviews. Seemed confident, got through the technical aspects of the interview — and he saw that we had an open floor concept. When he came on board, he joined his team and worked at his desk, but then started to disappear periodically. His boss finally caught up with him to ask where he was disappearing to. He said he got “nervous” doing his development work in front of other people.
Ohhh-kay…So…the manager comes to us in HR to ask what she should do. No other developer had an office. Without asking for medical documentation of his anxiety, we made accommodation for him to spend a certain period of time in a conference room when doing his development work. The rest of the time — first thing in the morning, team meetings, etc., — he was at his desk in the open floor…We found it odd, and he’d given no indication of an anxiety problem as a candidate, but we accommodated. Without a note from his doctor…The manager talked to the team. They were fine with it. End of.
P.S. As a candidate, he did not have to give any indication of any medical condition…He did not have to…Once he’d gotten the offer, it would have been nice to know so we could have advance notice of needing to make an accommodation. The only way we could have withdrawn the offer would be if we could prove undue hardship in making accommodation — and that’s a pretty high bar. Allowing someone to sit by themselves in a conference room on a regular basis to enable them to complete their work? Not an undue hardship. Weird, maybe. Not hard.
Speaking of medical conditions that might require accommodation, an employer cannot single out individuals to ask if they would need accommodation based on appearance or behavior. Obviously, if someone comes into your office in a wheelchair, it’s a pretty safe bet that certain accommodations may need to be made. Otherwise, things such as behaving a little shy or odd? Nope. Can’t ask — unless every single candidate gets asked that question — and then you’re on some pretty thin ice:
“Why are you asking me if I need a medical accommodation?” asks the slightly “odd” candidate.
“Well, you seem a little shy, awkward. Do you have a medical condition? Are you on medication? Are you on the autism spectrum or somethin’? You seem a little ‘off.’”
Exaggerating to make the point, but can you see how utterly ridiculous that is? And illegal???
Speaking of, that exact scenario played out with me. A young guy came in, looking for temporary work. He had been “temping” for a while, which a lot of people do. No red flags for that. He did actually strike me as a little shy…or something…but he got through the interview OK and the reference check.
Speaking of reference checks, employers’ hands are tied with respect to what are — once again — legitimate, lawful questions. Those exclude the ability to ask about a candidate’s medical history! Can you see why? Medical information is private and rightfully so. Also, what prior employers can actually say about a candidate is strictly limited. If a person somehow found out that a reference actually said something that caused him/her to not get an offer or have an offer withdrawn, the person who gave the reference and the employer could find themselves in some big trouble. This explains why some companies permit only confirmation of employment and forbid their employees from acting as references.
Back to my “shy” candidate. He got placed and started working. Everything seemed to be OK until he began showing up late. A lot. My client called me. I called the employee. Everything OK? You’ve been late to work a few times. Gotta get to work on time. Can you do that? Yes.
Well, long story short, you know how this goes. Repeated lateness, repeated conversations with the person saying he understood, but offering no explanation for his lateness. Until he was let go. After he was finally let go, he called my client back and told her he had Asperger’s Syndrome. She calls me, feeling terrible. Did I know? No…I didn’t. Can’t ask. Not a medical doctor. References said nothing…because they can’t.
This person then applied for unemployment insurance. Really? You were late, didn’t show, no call. You want unemployment? My boss told me to dispute. Really? Yeah, you need the “experience.” I do? I need the “experience” of going into Boston to an unemployment hearing? Yup. I go to the “hearing.” Does he show up? The question answers itself.
“Did you tell Horatio (not his real name) he needed to be on time when you hired him?” asks the unemployment hearing person.
“I told him what the hours were,” Me.
“Yes, but did you tell him explicitly that he needed to get to work by a certain time every day?”
“Did I ‘explicitly’ tell him? Well, no, but I told him…”
She cuts me off. “You did not tell him. Did you know he has a disability?”
“Only after he was fired.”
“So, you didn’t make accommodation?”
“Well, no. Because we didn’t know — and we can’t ask.”
Oh, my head. Guess who got his unemployment insurance?
Here’s my last example, this time a religious accommodation. I was directly involved in this search — technical, hard-to-fill position. Found a great candidate, knew she was looking and knew her background was in demand. Once we knew she was our finalist, I told her manager that I was going to call her to let her know and that we were in the process of making her a formal offer. She was thrilled, told me we were her first choice. Excellent!
She then tells me that as an Orthodox Jew, she would need to leave early on Fridays to make sure she was home before sundown. Now, in the northeast in winter, that’s pretty early. To get to where she lived from our office with horrible Boston traffic, this meant she’d have to leave “noticeably” early on Fridays.
At the time, our company was a strictly in-person office. Everybody — regardless of where they lived or their role or seniority — showed up. Working from home — unless you were a remote employee in sales or consulting — was just not a “thing” for those who worked in the home office. The technology for doing so existed, but the culture did not…And here we are with our top candidate telling us she needs religious accommodation to work from home on a regular basis.
What did I do? I told her I would tell my boss about the accommodation (Did I doubt for a second we would make it? No.) and also let her new manager know. That’s it. (This culture of working in the office was so ingrained that when I told her new manager about it, he got nervous…What do I tell my team? Tell them that we will be making a religious accommodation as decency and the law require…”Oh! OK!”) No problem.
What I did not do was tell her that we would need to ask a series of question to confirm that her mode of dress (hair covering, long sleeves, long skirt) truly reflected her “deeply held religious views.” I did not tell her that I would need to confirm with a “reference” that she really was “observant.” I did not tell her that we would need a letter from her rabbi..!
We simply made the accommodation. Period.
Tomorrow, in Part II, I’ll talk more about how all of the above got tossed overboard by the very people dedicated to protecting basic civil and privacy rights in the workplace— the people of “Human” Resources.
Part I - How Human Resources Has Disgraced Itself in the Global Crime Against Humanity Age known as the "COV!D" Era
Beautiful examples. Thank you for sharing. One of the things hardest for me was to watch the inclusion and diversity advocates, often under the HR umbrella, suddenly embrace that it was okay to exclude. My story- I am a lawyer supporting financial services. Highly skilled in a niche practice. I was sent home in March 2020 and performed my job well remotely. I got COVID in July 2020, by the grace and wisdom of God. My family recovered without severe illness or disease. God, through my conscience, made clear that COVID vaccination was not right for me or my family. We have been COVID free (to our knowledge) since that original infection, which included a six+ month period where my husband tested weekly. My employer (so proud to annually be recognized as one of the most ethical companies) imposed a mandate. They did it slowly, first, you could not participate in travel or optional return to office, so that a large percentage had complied by the time the mandate was effective. They told us frequently that few exceptions would be granted. Few exceptions were granted, and, despite a note from my doctor advising against vaccination and an incredibly sincere belief that God gave me clear direction that I was to rely on His natural immunity, it was deemed (no explanation) that I was not eligible. That means I was fired for cause, Severance was denied and significant deferred compensation was, in their words, forfeited. As I told them, God spoke to me before Biden or the company executive committee said mandate, and I chose to follow His instruction. I did not fear side effects, I just knew, per God's clear direction, that the natural immunity He had given me was the protection I needed and, when weighing the risk and benefit for me, I could see no benefit of any temporal significance and the risks were unknown. I followed God and not man. Thank you for speaking out.
I worked at the infamous NSA. I resisted the mandate until I realized that the whole place was not what it purports itself to be. When I was seeking religious accommodation I learned that religion is covered by the Civil Rights laws just as race, sexual orientation, etc. But when I appealed to the department which dealt with discrimination issues I was told to go to the office of Religious Affairs. I should have asked why they didn’t have an office for Racial Affairs or Homosexual Affairs. What used to be the Equal Employment and Opportunity office is now the Diversity Equity and Inclusion Office. I imagined that it was staffed by women with rainbow colored hair and advanced training in intersectionality. At Religious Affairs it was clear that the chaplains and staff were all vaccinated. They were there to “process” us but not to defend us.