Monday, July 7, 2014

Robby Making Mischief - Again

Robert P. George
Princeton professor Robert P. George is not just a True Defender of the Faith™. Robby is also a professional victim. Making the rounds through the Holy Echo Chamber is his latest bit of mischief. According to Robby, a "friend" of his sent him the following message:
I've worked at Chase for the past 11 years. Yearly (sometimes skipping a year though) the bank will send out an Employee Survey to gauge how the employees feel about the bank and the management team they report up to. Every year that's all the questions ever related to: the bank in general and management. But this year there was a question that had many of us scratching our heads.

This is a company wide survey. All lines of business have the same survey. There was a question where it said to check the boxes that were applicable to you. You could select one, more than one, or none. Here it is:

Are you: 1) A person with disabilities; 2) A person with children with disabilities; 3) A person with a spouse/domestic partner with disabilities; 4) A member of the LGBT community.

I thought 4 was a little oddly placed, but oh well. It was the next option that pulled the needle off the record:

5) An ally of the LGBT community, but not personally identifying as LGBT.

What?! What kind of question was that? An "ally" of that community? What's the alternative if you don't select that option? You're not a ally of the LGBT community?

This survey wasn't anonymous. You had to enter your employee ID. With the way things are going and the fact that LGBT rights are being viewed as pretty much tantamount to the civil rights movement of the mid 50s to late 60s, not selecting that option is essentially saying "I'm not an ally of civil rights"; which is a vague way to say "I'm a bigot." The worry among many of us is that those who didn't select that poorly placed, irrelevant option will be placed on the "you can fire these people first" list.
There are a few things wrong with this narrative. First some background. Title VII of the Civil Rights Act of 1964 created a national policy of equal employment opportunity in private employment. It bars discrimination on the basis of race, color, religion, sex or national origin. President Lyndon Johnson enhanced the Act with two executive orders which are still in effect; 11246 and 11375. Those require affirmative action on the part of federal contractors. States and localities have also augmented the Act with prohibitions on discrimination based on things like sexual orientation and gender identity. President Obama is also issuing an executive order shortly that will assure non-discrimination by federal contractors with respect to LGBT employees and applicants (I wonder if it will include affirmative action).

According to my former labor attorneys at Jackson Lewis once a protected class is applicable then that information becomes prohibited and, thus, illegal to inquire about unless by a department or subsidiary with a government contract for the purpose of assuring diversity. The legality is a bit murky but there is no doubt whatsoever that asking these questions creates significant exposure. For example, if we take Robby's post at face value, the next person at Chase Bank who is gay or disabled and denied a promotion could claim that it was the result of identifying themselves as gay or disabled in a questionnaire.

To circumvent these problems (and they are significant problems) many, if not most, larger organizations use consultants to obtain valid employee survey information. The cover sheet explains that the personal information will not be provided to the company except in the aggregate.

The identification of the employee (in this case by employee ID number) might be used to tie into compensation ranges, geographical area or simply to ensure that employees comply with submitting a return or don't "stuff" the results. Had I been Robby, I would have asked a number of questions. We have seen neither the questionnaire nor the collateral materials. If Robby has then he hasn't displayed them with personal information redacted. We don't know who receives the completed questionnaires. We don't even know who sent out the questionnaires.

I called two executives at Chase Bank who claim to know nothing about this survey. That is not dispositive for a number of reasons but, again, Robby didn't ask the right questions. What does "across all lines" mean? How does the "friend" even know to whom this was distributed?

Perhaps Dr. George didn't ask the questions to avoid answers that he would not like. In point of fact I would not be entirely comfortable if a company has a list of all their gay employees and sympathizers. These things cut both ways.

The bottom line to all of this is that there is more to this story. There is also a certain irony to all of this. Catholics worried that their personal lives could create problems for them in the workplace. Welcome to our world where, in 32 states, people can be fired for their sexual orientation.

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