Coming to terms with discrimination in the workspace as an integral part of compliance.

Organisations increasingly need to deal with discrimination, especially sexual harassment and racist behaviour. Such discrimination cases are compliance incidents which are to be classified as serious compliance risks. Even if compensation payments in the case of sexual or racist discrimination in Switzerland or Germany is far from equal to the payments made in the USA, damage to the reputation of the organisation and the associated loss of customers and/or employees can nevertheless be drastic. Organisations should therefore review and adjust their compliance management systems and processes. This allows to ensure that such risks can be professionally identified and managed when they occur.

In comparison to white-collar crime, sexual and racist discrimination cases involve an employee who is personally affected in his or her private or intimate sphere. This results in a special duty of care of the employer. It also calls for certain specific measures regarding, in particular, prevention, the design of the compliance management system and the conduct of an internal investigation of such a case.

Prevention

General compliance trainings as a means for prevention against discrimination may simply not be sufficient. Studies show that mere guidelines and general trainings do not seem to have the desired effect. Specific trainings on sexual harassment, microaggression and unconscious bias may however positively affect prevention. Enabling colleagues and managers to become allies and to intervene when they see bullying or harassment supports the case. Finally, a lived value based corporate culture combined with vibrant diversity and inclusion activities strongly add to such prevention.

Emergency Measures

When confronted with a discrimination case employers are challenged to find the right balance between protecting the potential victim from further harassment and protecting the accused person from false accusations. Depending on the severity of the reported incident, emergency measures such as physical separation and suspension of cooperation of the involved persons may be required.

Internal Investigation

The conduct of the internal investigation to clarify a report on discrimination demands a high sensitivity for the situation of the persons involved. Notably, an understanding of the burden on person affected by the discrimination (in particular in case of sexual assault) in interrogations and an appropriate handling thereof is required.

To read the full article published in CEJ, Volume 6, Number 2, 2020, please click here.