Page 68 - An Indispensible Resource for Being a Credible Activist

retaliation, job loss, hostile work environment, and so on. This is a difficult argument to rea-
sonably make, even in a difficult world economy.
HR professionals can and must use the knowledge and leverage they have to find ways
to diplomatically, graciously, professionally, and directly address issues of legal noncom-
pliance with their leadership. However, depending on the company values, the HR profes-
sional who writes a perfect memo addressing legal noncompliance may still find him- or
herself out of a job. There are still a shocking number of companies that don’t take EEO
and other employment laws seriously, and there are a shocking number of HR profession-
als who practice the HR profession in a seriously unethical manner. This practice gives
HR a bad name as a profession causing employees not to trust HR professionals. If HR is
to be a true partner with actual significant responsibilities in the company, then HR must
not be silenced, vetoed, or overruled when it raises very serious concerns about legal non-
compliance.
Too many HR professionals, however, are silenced, ignored, vetoed, and overruled.
Many HR professionals at HR expos, training seminars, and conferences will report the
same. They are often at a loss as to how to handle this. They don’t want to lose their jobs
(the majority of which are in employment at-will states), they don’t want to betray the trust
of employees, they don’t want to expose themselves to personal liability, they don’t want to
add to the company’s liability, and they don’t want to participate in unethical behavior.
Surprisingly, many HR professionals are unaware of their unique position and ability to
address these situations.
Given that HR professionals also have personal liability exposure if EEO and other
employment laws are handled improperly, they can simply address the issue beginning with
concern about both company and personal liability while also being protected from retalia-
tion for (as per the EEOC) “protected activity,” which includes the following: 2

Opposition to a practice believed to be unlawful discrimination. Opposition is informing
an employer that you believe that he/she is engaging in prohibited discrimination.
Opposition is protected from retaliation as long as it is based on a reasonable, good-faith
belief that the complained of practice violates anti-discrimination law; and the manner
of the opposition is reasonable.

Regardless of your initial response to a situation, some leaders may be harder than oth-
ers to convince to take proper action. Some may have strong emotional reactions to the HR
professional attempting to address this issue. They may use what I call the “Jedi Mind Trick
Approach” to respond to any serious concern raised with them. The way this works is that
anyone in the company raises a concern with the leadership about how something is not
being handled as well as it could or should be, and the leadership will say something like,
“It is being handled exactly as it should be. It is being handled within legal compliance,” as
though saying something untrue once or even several times will make it true.
You may recall the Star Wars scene in which storm troopers, searching for Luke
Skywalker’s droids, encounter Obi-Wan Kenobi—a Jedi master who waves his hand slowly

CHAPTER 4 • Legal Issues for Credible Activists 51