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Don’t Look. It May Be Offensive.

Written by
Mike Wilson, NAECP President, Director
Employee Concerns, BP America

Here is a quick disclaimer before you read the note below. Much of this is my own opinion and my intention is not to give legal or personnel advice as I am not a lawyer or HR professional. I am an employee concerns professional and I approach issues slightly different than my respected colleagues. Now with that said, you have to read on…..or don’t look because it may be offensive.

As employee concerns professionals, we are inherently flexible and open-minded. Many people believe we should always be objective, or free of any bias or prejudice caused by personal feelings. This isn’t always the reality of our roles.

In most companies, the Legal department is tasked to protect the assets of the company while limiting legal risk and liabilities. On the other side of this continuum, some companies have “employee advocates” (often part of HR) to help voice and protect the direct interests of employees. As employee concerns professionals, where do we fall in this line of support? Many believe we should walk down the center line.

I embrace a different approach. I believe that we should keep a foot on the center line but always have a bias towards the concerned employee(s) regarding the timely resolution of their concern even if it is at a discretionary cost. This is not about outcome. This is about being seen as fair, thoughtful and compassionate. Employee concerns professionals are often considered a trusted avenue for raising concerns and this trust grows if we demonstrate understanding and support to employees - more than what HR and Legal may be willing to give. This does not mean that we shouldn’t protect the company or company assets, but it means that sometimes we should be asking our Leadership to do things because it is the “right” thing to do rather than a regulatory or legal requirement. I believe we should have much more flexibility.

You may agree or disagree with this.

Flexibility and understanding are the keys to being a good employee concerns professional. Common sense is another critical key. Having an open mind is a must. All the traits that make an effective employee concerns professional (good listener, compassion, leadership, ability to give advice and guidance) should be what all of us strive to develop.

Although we try to remain reasonably objective, there are times that we must take a stance and push. Sometimes that push is not apparent at first, or changes quickly. Here is a test case for you. What would you do in this situation? Where would your compassion be aimed? Who would you protect?

Act 1, Scene 1
A concerned individual raises an issue through your employee concerns program. The concern is about a co-worker who has displayed an offensive symbol that may symbolize racism but the reporter was unsure and didn’t get a close look at it. The symbol is in the form of a permanent tattoo.

You quickly check with HR and confirm that your company does not have code or policy regarding the open display of tattoos. You reach out to your Legal department and are advised to be cautious but the company is perfectly within their rights to require employees to cover up tattoos especially offensive ones.

What would you do next? Would you talk to the Subject? Would you talk with Leadership? Would you work with Legal and HR to develop a way forward? How would you approach this?

As a side note, if you do develop such a policy, make certain that your company consistently enforces the new policy. Also, be aware that religious beliefs use tattoos as a religious expression so you may need to accommodate some employees. This, of course, does not necessarily apply to tattoos of an offensive nature.

According to Jeff Walsh, Partnership Manager of BCN Services (www.bcnservices.com):
“Caution is the order of the day when dealing with a claim of religious accommodation. Should an employee claim that a tattoo, piercing or other adornment (such as certain clothing garments) is a sincere religious belief, the Equal Employment Opportunity Commission has ruled that the employee does not have to provide proof from an organized religion to support claim of a sincerely held religious belief. This is a bit of a slippery slope for many employers. Religious accommodation does not require an affiliation with any organization or group.”

Act 2, Scene 1

You interview the Subject and he confirms that he has an offensive tattoo and he explains that he got it 25 years ago during a “spring break” event and it does not reflect his beliefs or lifestyle. He has just never had it removed.

He now raises a concern of his own. He shares with you that the tattoo in question is in a very personal place that could only be seen in the restroom or locker room and now feels that his reasonable expectation of privacy has been breached and wants whoever saw and reported this disciplined.

How does this change your direction and handling of this case? Do you manage this as a separate issue? What is your next conversation? Does the original concerned individual become the Subject? Is this strictly an HR issue? Is there a new legal aspect to consider regarding the obligation to protect people privacy in the workplace? Do you have compassion for the employee with the tattoo?

End of test case.

The purpose of this case exercise was not to discuss tattoos or restroom privacy. It was to illustrate and recognize the flexibility we all must have as ECP professionals. We must be ready to shift gears quickly, look at every issue based on its own merit and ultimately we should be trying to remove real risk from the workplace. We should stay open minded and objective while building trust through action, and sometimes even offensive situations require us to be respectful and compassionate.

One value that NAECP members get is the experience and view of other fellow members. Our forum offers the ability and access to other ECP professionals and their case experiences to provide an invaluable sharing and learning mechanism. Although you may handle the situation above different than others, the NAECP meetings are a safe place to test and talk about your approach. It is also a great place to share your programs ideas and best practices.
When you attend the next NAECP event, please share your test cases. I hope to someday talk about tattoos and privacy with you in person.

Stay Safe,
Mike Wilson
President NAECP

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