The 97% Problem: You Need to Be Decisive Dealing With Improper Conduct

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By Stephen M. Paskoff

A federal government agency official recently told me that charges of employment discrimination were way up across his large department. Most cases, he said, involved hostile workplace environment claims, and about 97 percent were lacking merit and ultimately dismissed.

My legal mind immediately thought, “Only 3 percent at most are valid claims – great legal defense record, especially when you consider these were probably settled internally and at relatively low financial cost.”

But then my understanding of broader workplace issues kicked in: a tiny minority of valid claims is not the true problem, especially in an era of crimped resources. The real problem is the 97 percent of discrimination claims found to be “lacking merit.”

Addressing blatant incivility

These cases may have turned out to be baseless, but the organization still must investigate them over many weeks, or even months, creating dissension and distraction and draining far more human and financial resources than the 3 percent with merit.

No doubt, some truly lacked any credible evidence whatsoever. Employees may have disliked how a manager told them to perform a task, while others perceived hostility or discrimination where no reasonable person would. A few employees may have feared being fired and filed charges in hopes of saving their jobs.

But in the vast majority of cases, even though the evidence doesn’t add up to a violation of the law, investigators typically uncover some improper, questionable or uncivil conduct: an off-color or ethnic joke, a derisive racial comment, emails that shouldn’t have been sent, or questions that shouldn’t have been asked.

How do we address the underlying misbehavior and blatant incivility that causes employees to silently lose focus on their jobs or file claims? Based on more than 25 years of working with governments and businesses, I offer these thoughts to help you reduce EEO claims and build productive, inclusive workplaces in your organizations.

Obeying the law is only a starting point. Whenever I hear a leader ask me to mark the line between legal and illegal conduct, it raises a red flag. If that’s all you’re worried about, then you’ll surely create conditions that lead to 97 percent of the charges, thus driving up costs while harming productivity.

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Narrowly focusing on educating managers and employees about what amounts to legal discrimination isn’t enough. Even if most understand and apply the rules, discrimination training alone won’t provide a barrier to the kinds of behaviors that spawn most claims and cause tremendous organizational harm.

Broad value statements don’t work

Values are too vague. Many organizations have broad-based value statements focusing on dignity and respect of employees. But the problem is these values don’t go far enough because they’re not translated into daily conduct standards. As a matter of workplace civility, operational effectiveness and legal risk management, governments and private employers need to adopt specific workplace behavioral standards for employees and leaders alike.

The tone is set at the top of the organization. Senior leaders – through what they say and do and how they respond to breaches of standards – need to make it clear that improper conduct is simply unacceptable, even if it’s not technically illegal. Accountability is vital.

Stop improper conduct before it gets out of hand. In the language of sports, the best defense is a good offense.

Don’t wait for second, third and fourth offenses before addressing improper conduct. By dealing with misbehavior as it occurs, you can reduce the chances of more serious violations and claims, while ensuring a more focused and productive workplace for employees.

This excerpt from Simplicity Rules: 12 Thoughts For the 2012 Workplace is published by TLNT with the express permission of Employment Learning Innovations, Inc. [ELI, Inc.]Simplicity Rules is the copyrighted material of ELI, Inc. All rights reserved. No portions may be extracted, copied or duplicated without the express written permission of an officer of ELI, Inc.

Stephen M. Paskoff, Esq., is the founder, president and CEO of ELI®, an Atlanta-based training company that teaches professional workplace conduct, helping clients translate their values into behaviors, increase employee contribution, build respectful and inclusive cultures, and reduce legal and ethical risk. Contact him at