Employment expert: Diversity makes businesses stronger

TAMPA, Fla.—Michael Cohen has some simple advice for employers concerned about diversity and inclusivity in the workplace.

Take it a step farther.

Cohen, a partner in Duane Morris L.L.P. in Philadelphia and a national authority on employment issues, maintains that if an employer considers candidates who offer diversity in non-Equal Opportunity Employee areas, the workplace will be a better place.

Most employers, Cohen said, consider only EEO diversity: areas such as age, gender, race, color, religion, disability, national origin, sexual orientation or membership in any other group protected by law.

“If we look around the room, and all we see is white faces, we say to ourselves, something isn't going quite right here,” Cohen told the Rubber Rollers Group at its recent annual meeting in Tampa, Fla. Cohen addressed the group twice during the conference, including a presentation entitled, “Dear Helga—You're never going to believe what my employer did this time!”

“Your organization will not be as successful as it can be if that's the way your work force is composed,” he said.

But Cohen said if an employer seriously considers diversity in other areas—such as educational background, geographic location, income status, political perspective, work experience and physical stature—the other requirements will take care of themselves.

For example, he took issue with some job postings that require a four-year college degree.

“What is so magical about a diploma and someone who spent four years and a couple hundred thousand dollars to get this degree?” said Cohen, who has degrees from the University of Pennsylvania and the Temple University Beasley School of Law.

He acknowledged that some positions require a license or certification.

“Outside of those, ask yourself why?” he said. “Overwhelmingly, the goal is to hire the best person I can hire for my organization. Very often, that means the person may have a different educational background, a non-traditional educational background.

“You want to make sure that your work environment is one that is inclusive, is diverse and is comfortable for as many as possible as much of the time as possible.”

Diversity was just one of the many topics that Cohen discussed during his talk.

The attorney offered advice on topics and questions to avoid during the interview process.

At one of his initial interviews after college, Cohen said he was asked about his ethnicity and marital status.

“First question is: "Cohen. That's a Jewish name, isn't it?' “ Cohen said.

The interviewer followed that up by asking whether he was married, and if he had any children.

“How many laws you do you want to break in a 35-second meeting?” Cohen said. “We can't ask these kinds of questions. They're completely irrelevant, and No. 2, they're illegal. Those are the types of questions that lawsuits are born of.”

He said one movement that is sweeping the country is “Ban the Box”—an international campaign by civil rights groups and advocates for ex-offenders whose goal is to convince employers to remove the check box from their hiring applications that asks if applicants have a criminal record.

“If you're going to consider somebody's criminal history, if you're going to consider someone's criminal conviction in making an employment decision, or in making a hiring decision, you are going to have to be able to demonstrate that the conviction is job-related and consistent with business necessity,” Cohen said, “which means nothing to normal human beings.”

He said his wife serves as an example. She is an expunged felon, convicted of using a fake ID decades ago.

“Who in this room has never exercised poor judgment?” Cohen asked. “Just because my wife exercised poor judgment, should she never be able to work again?”

Cohen also emphasized that military status, religious affiliation, marital status or pregnancy should have no bearing on evaluating a potential candidate.

“I have a rule: I will not ask a woman if she's pregnant unless I'm actually and currently witnessing her giving birth.”

In fact, the days are gone in which employers have to fear hiring a woman who discloses on her own that she is expecting. Don't be concerned that she won't come back once she gives birth, he said.

“That's not the way things work in 2016. This isn't Pleasantville. It's not 1955. Don Draper is not sitting in the office next to yours,” Cohen said. “That is a notion that has come and gone. Sometimes that happens, yes, but far, far fewer than they are. Good jobs are hard to find, plus stuff costs a lot.”

Cohen said that one of his friends, who is openly gay, was asked in two separate interviews about his marital status. In the first, the interviewer looked at his ring and asked the man to tell him about his wife. In the second interview, the man was asked directly if he was married.

“The interviewer didn't ask for information on my buddy's sexual orientation; he begged for it,” Cohen said.

He said some companies have differing views of marital status. Some believe married employees are more grounded, more stable. Others believe single people are optimal because they will have more time to work. “These are absurd,” he said.

Appearance is another huge issue, Cohen said, particularly tattoos, piercings and length of hair. Cohen said that shouldn't disqualify an otherwise qualified candidate.

“The goal overwhelmingly is to attract and retain the best people we can for our organization,” he said. “My question is, "How much of the otherwise qualified population do you want to eliminate from your jobs based on these types of decisions?' You ... chew away at qualified people who may be good at doing your jobs.”

He encouraged employers to involve employees to help establish appearance policies, including appropriate grooming and dress. These policies shouldn't, and won't, be the same for all job classifications, but he said employees who understand what and why these policies are being adopted are more apt to comply with the policy.

When employees do perform poorly, Cohen stressed that the goal should be the rehabilitation of the employee.

With that in mind, he said regular appraisals are important. “If not, you're sending a clear message to good employees that you don't care about them,” he said.

He encouraged companies to follow the traditional steps for discipline: Verbal, written, termination. And he said to document all incidents.

“If it is not written down, it didn't happen,” he said. “Anecdotal evidence is nice, but there is nothing more effective as documentation created at the time the event occurs.”

He said supervisors have a legal obligation to act properly as well as protect employees from inappropriate behavior in the workplace. “Leave no doubt the way you conduct yourself is appropriate. Ask yourself how would you feel if a loved one would do or say or what you're about to do or say, or if a loved one were subjected to what you are about to do or say.”

He said it is important to respond proactively, even in the absence of a complaint. He said supervisors have a legal obligation to report all incidents witnessed or complaints of harassment, discrimination, retaliation or inappropriate behavior based on someone's membership in a protected class. And the company has a legal obligation to investigate those complaints.

“Silence condones the behavior,” he said.

And if termination must be done, he advised avoiding unnecessary small talk and empathy, which comes across as sanctimonious.

“Get in, get out,” Cohen said. “Be respectful. Be quick. Be human. Be direct.”