“CEOs should be asking themselves, ‘Is diversity important to me
personally … is this one of my priorities, is this one of my business imperatives?’” says Castro. “If it doesn’t
come from the top, then the other
officers of the company, the mid-level
associates and the line employees,
won’t have that as an imperative.”
Fear Can’t Be
Prime Motivator
There are two kinds of companies
when it comes to discrimination
lawsuits. There are those that are in
constant crisis-avoidance mode, and
there are those that are unprepared
and will have to “recover” from a
serious allegation.
the organization. “Any major company, it’s like running a major
city—there are all kinds of people,
good people, bad people, people
that violate the law, racist people,
the whole bit.”
Another mistake companies
often make is retaliating against the
employee leveling the charges.
“Now all of a sudden that company
is in a worse position, even if the
original complaint had no merit,
because they have violated the law
that prohibits retaliation against
someone who has brought a good-faith complaint,” says Allen Kato,
attorney, Fenwick & West, whose
expertise is litigation and preventive
counseling.
“The companies that get it realize that it’s in
their best interest to reflect diversity
and to respond to diversity so they
can better serve their customers … that is
the driver for diversity change in
corporate America, versus fear of the EEOC.”
Martin R. Castro, Sonnenschein Nath & Rosenthal
The unprepared companies
often are the ones that react in a
knee-jerk fashion to an allegation,
denying the charges. Many lawyers
say that’s a big mistake and often
the difference between winning
and losing the case.
“The smart companies say ‘This
is against our policy, this is something we won’t tolerate, we will
investigate ourselves and if we find
out anything of that nature is going
on, we will eradicate it,’” says
Latham, adding that senior management must recognize they don’t
have perfect people working inside
This was a lesson that California-based Acadia Pharmaceutical apparently didn’t follow when a San Diego
jury awarded a female scientist nearly
$8 million (half in punitive damages)
when the court determined she was
terminated in retaliation for filing a
sexual-harassment claim.
“Some companies react negatively and don’t do the right thing in
taking advantage of the opportunity,” Kato says, adding that instead
of covering up, companies should
open up. “You don’t want to hunker down and deny that it’s happening, or worse, go backwards.”
“Most companies are motivated
by a number of complex factors
from ‘It’s the right thing to do’ to
‘It’s the right business thing to do,’”
Castro says. “As we see the
American market become more
diverse, the companies that get it
realize that it’s in their best interest
to reflect diversity and to respond
to diversity so they can better serve
their customers. I think more than
anything, that is the driver for
diversity change in corporate
America, versus fear of the EEOC.”
It’s also in the best interest of an
organization to embrace diversity
for business reasons, not out of fear.
For example, companies often are
sued for making defective products.
But it would be
bizarre for an
organization to say
it’s motivated to
make a safe product
to protect itself
from lawsuits. Most
companies are
motivated for busi-
ness reasons to
make a safe prod-
uct, which is in the
long-term interest
of their employees
and shareholders.
The same has to
hold true for diversity. If diversity is
initiated out of fear, it’s not a busi-
ness imperative of the organization
and, ultimately, won’t protect the
organization from litigation.
“The larger you get, the more
proactive and focused management
has to be to make sure that their
supervisors and managers at every
branch down to the lowest level
know about what the law is, what
the rules are and what the companies’ policies are. The better you are
at it, the less chance you have of
encountering this type of litigation,” says Kato. DI
