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Ongoing protests against racism are shining light into dark corners of American life and provoking discussions about how we got to this place — and what to do about it.

These are not easy conversations; they require that people look within themselves to see where their beliefs come from and ask tough questions about race. And while these discussions may be difficult, they are foundational to creating diverse and inclusive workplaces.

As such, employers must be aware of their legal duties with respect to discrimination, but achieving an inclusive and peaceful culture goes deeper than just compliance.

Creating a culture of inclusion does not mean that everyone has the same beliefs, but it does require having the difficult conversations so everyone understands and accedes to a respectful workplace culture.

LEGAL FRAMEWORK

From a legal standpoint, Title VII of the Civil Rights Act of 1991 prohibits discrimination based on race, color, religion, sex and national origin. 

The Colorado Anti-Discrimination Act is the state’s equivalent, and adds sexual orientation and transgender status to the list of protected classes, said George Russo, director of the Colorado Springs regional office of Employers Council. 

“The other thing that Colorado has is the Colorado Legal Off-duty Premises Activities law,” Russo said.

The National Labor Relations Act, which protects certain concerted activities, such as circulating a petition asking for better hours, participating in a concerted refusal to work in unsafe conditions, and openly talking about your pay and benefits, also may play a role, he said.

While everyone must comply with the Title VII prohibitions against discrimination, “public employers are subject to the First Amendment, so they have to consider free speech rights when they’re dealing with their employees,” Russo said. “Private employers are not, but there are other considerations.”

If an employee is disciplined for wearing a Black Lives Matter T-shirt at work, “there might be an argument that they’re discriminating based on race if the employer is treating Black Lives Matter differently than other protected classes,” he said.

The Legal Off-duty Premises Activities law “says that an employer cannot terminate or discharge employees for engaging in legal activities, unless there is a conflict of interest or the appearance of a conflict of interest,” Russo said. “In most cases, when we’re talking about Black Lives Matter protests, there’s probably not a good argument that an employer can make.”

Neither Title VII nor the Colorado Anti-discrimination Act protects political speech or participation in a political party in the workplace, he said.

“So private employers can prohibit speech like that,” he said. “A lot of employers essentially do that and say, ‘Hey, we’re not going to have political conversations in the workplace.’

“I will say, though, that with the recent Black Lives Matter protests, we have heard from a lot of employers that they want to encourage this conversation about diversity in the workplace.”

Political conversations per se are more easily prohibited than conversations about race, since it is a protected class, Russo said.

“You could have a policy that says we don’t encourage discussion of political beliefs in the workplace,” he said. “The other way to do it is to have a supervisor or manager setting the expectation. They can step in and say, ‘We’re not encouraging that type of conversation.’”

The difference between a political statement and a permitted exclusion that pertains to race can be a fine and somewhat confusing line.

“It depends on the facts,” Russo said. “If an employee was protesting their employer’s treatment of Black employees and using Black Lives Matter to protest that, that’s something that the National Labor Relations Act would be at least interested in.” 

And if a prohibition is based on race, that could be viewed as discrimination if someone in the protected class is treated differently than others.

But if a conversation falls more toward political speech, the employer could tell employees that those conversations need to happen outside the workplace.

Another instance in which a Black Lives Matter T-shirt or a MAGA hat might not be allowed is when an employer has a uniform policy requiring employees to dress a certain way.

“Those policies are allowed,” Russo said. In the absence of a policy, “I would ask the employer, ‘Why are we sending this person home? Are we treating them differently than we treat other personal expression?’”

CULTURE OF INCLUSION

Creating a culture of diversity and inclusiveness starts at the top.

“Diversity is about having a seat at the table. Inclusiveness is actually having a voice at the table,” said Tamara Moore, founder of ReLevel, a company that works with businesses dealing with the pace and complexity of change.

Bias, “another term that we hear often, is what voices do we listen to at the table,” she said.

Moore teaches emotional and cultural intelligence and recently presented a Pikes Peak Small Business Development Center workshop on those subjects.

“There’s different types of training, like diversity training, which changes over time and how certain situations are handled,” she said. “But emotional and cultural intelligence is a set of practices employers can use at any time. The principles work with whatever is going on in society.”

Emotional and cultural intelligence “is focused on inclusiveness,” she said. “If you have inclusiveness, you tend to attract and retain diversity.”

Emotional and cultural intelligence training is based on neuroscience.

“We are wired to see difference,” Moore said. “That’s our fear-based brain. It’s that old programming of fight, flight or freeze, that survival instinct, that self-protection. We’re not wired for hate; that’s a learned behavior.”

At any moment, “the brain consciously processes about seven bits of information per second,” she said. “Subconsciously in that moment, it’s processing 11 million bits. So if we’re not aware, it’ll run our old programs — our life experience, all our views, our beliefs and our values.”

Emotional and cultural intelligence is about widening the gap between a trigger event or thought and the response to it, and teaching people to be more curious and ask questions rather than jumping to judgment based on their own experience.

“In that moment, we actually have the freedom to choose what we’re going to do,” Moore said.

When someone is triggered and goes into stress, the ability to be creative and solve problems decreases as the brain moves into fight, flight or freeze mode.

“You see a lot of that happening in social media,” she said. “People go on offense, they go on defense, or they just start to check out.”

In the workplace, that’s especially the case during times of change and when, like now, companies are struggling to survive.

One of the most powerful tools an employer or supervisor has is just to start asking questions, Moore said.

“Anger is a prime example of something that triggers a fear response in most people,” she said. “What’s really helpful is if you can take that moment, center yourself and say, ‘Help me understand why you’re angry.’”

Another clue to watch for is an employee expressing a strong feeling.

“If someone’s angry, they’re frustrated because they have a need that’s not being met,” she said. “So it’s asking that person, ‘What do you need right now?’ And the response can be ‘Yes, I can meet that need’ or ‘No, I can’t meet that right now,’ or ‘I can do part of this right now.’ … An inclusive employer is going to start that conversation with employees. The conversation goes a long way in just trying to create an understanding.”

Moore urges employers to reach that understanding before instituting policies about what type of expression is or is not appropriate.

“There’s going to be diverse perspectives, and having the conversation helps them feel seen and heard and listened to,” she said. “A lot of times decisions are made, and there isn’t an understanding of what the needs are in that culture.

“What I’m trying to advocate for is a thoughtful process, where people are listening to the needs of the employees, and the employees are also listening to the needs of the employer,” Moore said. “That’s an inclusive process, versus ‘I’m triggered and I have a response and now we have a policy.’”

Working through the conversation is time-consuming but worth it, because inclusiveness helps morale.

At the end of the process, the employer has considered the needs of the employees, the business and its customers, and reaches a decision that reflects the culture of the company.

“A lot of times employees decide, ‘I respect that decision and I like the culture of this company,’ or ‘Maybe it’s not a fit for me,’” she said.

Employers may realize they can’t change beliefs, and they may even empathize with the employee while disagreeing with the expression.

“You can acknowledge what they bring to the company and understand their perspective, but you have to decide what are the non-negotiables in the culture of the company, its beliefs and values,” Moore said. “I think some of the tension comes when employees don’t know what that is because the company hasn’t been clear about it.”

Emotional and cultural intelligence training is available for employers and is foundational to diversity and inclusion training, she said. Employers can access training through the internet and learn how to ask questions from a position of curiosity and not judgment, offense or defense.

“There’s a whole bunch if you just Google ‘how to have a difficult conversation,’” she said.

The questions that we ask during these times are fateful,” Moore said. “They predict the future, and we grow in the direction of what we’re asking about. They become a filter for how we solve these problems.”

ENCOURAGING DIVERSITY

Business owners, supervisors and managers must lead by example to create a culture of inclusion, said Donna Nelson, a co-presenter with Moore at the SBDC emotional and cultural intelligence workshop who has worked in a variety of public, private and nonprofit settings.

“Cultural intelligence is understanding how to speak another person’s language and connect with them emotionally,” Nelson said. “I don’t mean speaking Spanish or French, but really knowing what they mean.”

Nearly every workplace has people who come from different cultural backgrounds, she said.

“As a leader, you need to be able to connect with them on their level,” she said. “If the leader of the organization doesn’t believe in it and doesn’t practice it themselves, then the rest of the team, they’re not going to take the time to do anything either.”

Nelson encourages leaders to learn about people of other races.

“I think the best way to do it is to just simply become friends with someone from another race,” she said. “It doesn’t take long to reach out to someone and just offer to take them out for coffee or for lunch.”

As a Black woman, Nelson said she practices that approach and encourages others to reach out to her as well.

“My friends who are reaching out to me are asking, ‘What can I do? How can I help?’ And I tell them, ‘Ask me the questions that you are afraid to ask other people who look like me.’”

Employers also need to have conversations with themselves about their own issues with racism and understand where their own biases are coming from, SBDC Director Aikta Marcoulier said. Lacking that understanding can result in a lack of diversity among their workforce or boards.

“A lot of people just hire people they know,” she said, but they don’t consider how hiring a Black or bilingual employee might help them reach out to the community and better represent the company.

“Invite people to the table you wouldn’t normally bring on, because it creates that innovation and different thought processes,” Marcoulier suggested. “You don’t know what you don’t know.”

The SBDC is focusing on diversity and inclusion this year and has offered several classes and workshops, she said. More are in the works, including a session July 30 on supporting minority-owned businesses.

“You can hire outside help” to work through diversity issues, Marcoulier said. “It’s okay not to know what to say, but it’s not okay to stay silent.”

Editor’s note: Employers should consult an attorney about workplace issues because they are all case-specific.