Two sides to a story: the rights and wrongs of a workplace discrimination case

A software engineer and new mother took on IBM, complaining of having to work extra hours. She lost and was ordered to pay costs. 

Read this story twice: First time, put on an employer hat and feel confident you have done everything by a strong code of conduct and rules. You will be pleased with the outcome.

Now read the story again from an employee perspective, feeling fear and anguish that your working conditions are unfair and you have tried to talk about it, it has been overwhelming and you feel hard done by.

The employee made her initial complaints orally – the judge thought an “articulate” woman like her was quite capable of “formulating written complaints if she chose to do so”. Do we assume an articulate person should be able to talk/negotiate their way out of trouble, alleged discrimination, sexual harassment, or redundancies?

Being “articulate” about one’s rights and responsibilities doesn’t guarantee a person keeps their job. Many employees instinctively keep their heads and voices down, though a lamentably large group still assumes that bitching about their workplaces on social media won’t be discovered. 

Is it bravery or stupidity to speak up if you feel wronged? Should you point out flaws in a workplace arrangement? Some people would be doing their employers a favour by letting them know when enough may be enough. 

We can only hope that in this case, it was the right outcome. 

Go above and beyond lip service

It’s critical that companies go above and beyond lip service to promoting and enhancing diversity, work-life balance, addressing grievances and employee well-being. They must embrace it and make it strong. Teach managers and staff about inclusiveness, unconscious bias and what it means to have a healthy balance of work and home life. And make sure the dialogue is always open for feedback and improvements.

One of the reasons unions came into being was because many people were not free to articulate or defend their rights. With the growth in casualisation and short-term employment arrangements, employees are once again on their own – despite the existence of awards. Collective bargaining is becoming a thing of the past.

When a person is hired, there is risk to both the employer and employee. The employer doesn’t always know they can (a) afford the worker indefinitely and (b) command respect, let alone loyalty. The latter may feel their loyalty is tested beyond what’s reasonable. Both are entitled to civility and openness of discourse; both have to earn the other’s respect (this is not a given).

The setting of expectations and parameters need to be clearly marked by the employer; the employee needs to be aware of their rights and responsibilities. 

Employers should:

• Develop consideration for their workers’ feelings
• Listen when someone is telling them something is not working
• Encourage people to speak up (within reason)
• Value and repay loyalty (but exercise tact and firmness when it’s time to address a problem)
• Clarify their expectations and be role models for same (i.e. Not saying one thing but in fact requiring something else, or not adhering themselves)

Employees must:

• Exercise diligence and caution
• Take responsibility for their position
• Be mindful of their duties and rights
• Keep a written log when things become problematic
• Raise matters as soon and as possible – be factual, not just emotional and mouthing off.

Companies with a code of conduct, shared published values and behaviours – yes that’s a start – but live and breathe them for best results!

Eve Ash is a psychologist, author, filmmaker, public speaker and entrepreneur. She runs Seven Dimensions, a company specialising in training resources for the workplace.