October 30, 2019 • 21 mins
In our inaugural episode, Cornell ILR School Dean Alex Colvin and Katrina Nobles, director of programs for ILR’s Scheinman Institute on Conflict Resolution, discuss LGBTQ worker rights.
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Episode Transcript
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Diane Burton (00:00):
Work is all around us.
It defines us and the future ofwork impacts nearly every person
on our planet.
The ILR school at CornellUniversity is at the center of
work, labor and employment,influencing policy and practice
on the most pressing issuesfacing employees and employers.
ILR school Dean Alex Colvin isthe host of our series"Work!
(00:25):
Exploring the future of work,labor and employment," featuring
discussion with experts on keyworld of work topics.
In this episode, Dean Colvin isjoined by Katrina Nobles,
director of conflict programsfor ILR's Scheinman Institute on
Conflict Resolution.
They'll be talking aboutsituations in the workplace that
(00:45):
involve LGBTQ employees.
Dean Colvin (00:49):
Cases of the Supreme Court can seem pretty
theoretical and abstract attimes.
This question of whether genderidentity or sexual orientation
is a right under title seven ornot.
What does this actually meanthough in practice for workers
and for companies?
What's the impact on them ofthese decisions?
Katrina Nobles (01:08):
So I think there's a couple of really
concrete kind of takeaways, forboth individual employees and
also companies or organizations.
So for individual employees, Iwould say, dependent on the
outcome of the case, you need toconsider who do I work for and
(01:29):
why do I work for them?
Right?
You may need to be a little bitmore engaged in learning a
company's policies prior totaking on employment with them
and understand fully whatthey're offering in terms of
either formal protections orexpectations within the company.
I think for a company, dependenton the outcome of the case, a
(01:56):
company really needs to thinkabout kind of what are their
policies, procedures andexpectations, and they need to
be ultra clear with that.
And what are the pathways thatyou can take within the
organization when a conflictcomes up around these issues?
I think this is important,especially if the language
(02:18):
within the federal law or theexpectation within the federal
law becomes more vague insteadof more clear.
You're looking at something thatan organization is going to have
to define and by defining that,they are going to define their
culture.
So policies, procedures, andexpectations a re kind of, kind
of define what your organizationlooks like.
Dean Colvin (02:41):
So the Supreme Court might say that there's a
right against discriminationbased on your sexual
orientation.
But that also might make methink as an employee,"do I want
to work for a company thatdoesn't value that right?"
Something that I value as well.
Or conversely, as a company, Iwant to make sure that the
(03:02):
policies we have reflect thevalues that we as a company
have.
Katrina Nobles (03:06):
Exactly.
Dean Colvin (03:07):
So if somebody never fills a the coffee maker
after they've emptied it, wellit's a day to day irritant
right.
There's, you know, I have aninterest that I'd like you to be
a better colleague and fill thecoffee maker.
But when it comes to anorganization treating me
differently because of my sexualorientation that gets to a
(03:27):
rights issue and I feeldifferently about that because
of the nature of the nature ofthe conflict there.
Katrina Nobles (03:32):
Right.
Yeah.
And that really speaks to, Imean, when we talk about that
particular area of rights, wherewe have things that cover
discrimination and differenttypes of discrimination, you're
talking about identities andidentities are central to who we
are, right?
And we are the center of our ownreality.
So when somebody is attackingsomething that we consider our
(03:54):
identity or a part of ouridentity we're gonna feel it in
a very destructive and deep waywhere we want some larger form
of recourse around whateverthey've done.
Dean Colvin (04:10):
It seems like this is an area we get into clashes
of values and rights too whichare really difficult to deal
with in organizations.
I was just reading about arecent case in North Carolina
involving a teacher who claimedbecause of religious values that
he held that he didn't want touse the pronoun of choice of one
(04:31):
of his students.
Um, that then led to the teacherbeing disciplined by the
organization.
So, you know, it's the kind ofworkplace conflict where you
have a clash between differentrights and different values,
which seemed particularly toughto deal with.
Katrina Nobles (04:47):
Yes, I, you know, I think that is
particularly difficult to dealwith.
And that's something that Ibelieve went through their,
their typical grievanceprocedures.
So there's a system in place forthat, right?
And I think systems are, areequally as important as laws and
policies and procedures, right?
So we think about systemsoffering one way, a grievance
(05:09):
procedure as part of a systemoffering one way to kind of
address value issues or addresspolicy or a rights based issues.
I think the interesting thingwith anything that comes up in
laws in even collectivebargaining contracts, things
like that is that there's acertain amount of
(05:31):
interpretation, right?
And that's what we're dealingwith currently with some of the
things in the news around LGBTQsituations occurring in the
workplace.
And it's interpretation.
So first of all, is it somethingactually having to do with your
(05:52):
identity as an LGBT person asyou know, one avenue?
I think the other kind ofinteresting area with that is,
does it rise to a certain level?
Right?
That's the other part we kind ofthink about with rights and
laws.
We see it in the Me Too movement, in terms of the level of what
(06:14):
we consider sexual harassment.
And as a country we'restruggling with that one too.
Right?
So, I think it's kind ofinteresting because we think of
rights and morality often askind of a black and white, right
and wrong type situation when infact there's quite a bit of
(06:37):
interpretation involved.
Dean Colvin (06:39):
That leads into, I think a question that people
often struggle with.
What's the role of companypolicies and company authority
versus individual rights andhow, how do you balance those
two and their impact on, on aworker, right?
The company says one thing, thisis our policy, right?
And then the workers are like,okay, how does that mesh with my
(07:01):
individual rights?
Katrina Nobles (07:02):
Right?
So typically when we seepolicies that differ from, from
federal law, at least in myexperience, it's been policies
that go above and beyond afederal law.
Right?
So you might have the basediscrimination laws that are out
there where you can make a claimwith the EEOC or, or things
similar to that.
(07:24):
And then you've got a companywho maybe is a very liberal
company or a very green companyor something like that, and they
take a policy that puts afurther restriction or a greater
expectation on the base levelfederal law.
(07:44):
Right?
And so I think policies play avery big role in shaping the
culture of an organizationbecause it basically sets
expectations.
Dean Colvin (07:53):
So I think it must be a surprise sometimes to
employees to encounter that,that the company has something
that is an expectation that'shigher than what the basic
rights that they have are.
Katrina Nobles (08:06):
Right.
Dean Colvin (08:07):
Uh, one of the examples that I think is
interesting to think about withthis is sexual harassment.
You know, we have our lawsprotecting against sexual
harassment, but companies oftenseem to have more extensive
rules such as, you know, youcan't date a coworker, right?
No.
dating at work policies thatemployees may, may think
(08:32):
impinges on their personalrights.
Katrina Nobles (08:35):
Yes.
And I think, I think a lot ofthat in terms of how those
policies and or procedures playout are dependent in some way on
how they've been written out,how they've been set forth in
terms of employee handbooks.
What setting are you in?
(08:56):
Are you in a unionized settingor are you in a non-unionized
setting?
Then you have, if you're in aunionized setting, you have the
backing of the collectivebargaining agreement as well as
the union as a whole.
And I think that it, it doesbecome somewhat interesting and
some of those things that tendto be unclear if the
expectation, whatever that aboveand beyond expectation is in a
(09:18):
policy was not made clear or wasnot made available.
Those are the times where youmight see individual rights
winning out over companypolicies and expectations.
I think there's a pretty largepopulation that tend to be in
non-unionized workforces, right?
So they're employees at will andthe company if they've laid out
(09:40):
a clear policy that providesappropriate and clear
expectations, regardless ofwhether that kind of steps over
the boundaries of personalrights.
To some extent there are, aresome, boundaries on that.
But to a certain extent thecompany's rights could win over
(10:03):
an individual's rights.
Dean Colvin (10:05):
So you're circling back to these Supreme Court
cases, right?
So let's suppose the SupremeCourt decides that sexual
orientation is not protectedunder Title VII, so employees
don't have the individual,right.
I guess it would still be thecase that a company, if the
company had a policy that you'renot allowed to discriminate
based on sexual orientation,then as an employee, you're
(10:25):
bound by that policy, right?
Katrina Nobles (10:27):
Yes.
Yes.
So I think the key here thoughis that you know, you might see
these cases going in a slightlydifferent direction.
So the, the time where it's afederal law that's upholding a
right, you'd take it potentiallyin the, in the path of
litigation, right?
I'm going to take it to thecourts.
(10:49):
Whereas if it's, if it's more ofa policy of a company, the hope
would be you'd have someinternal process that's
occurring that would kind ofhelp determine some of these
steps before litigation.
Right.
Because there's not a law per sethat's going to distinctly say
(11:10):
you can't discriminate on thebasis of sexual orientation, if
the case were to go that way.
Dean Colvin (11:15):
Yeah.
I think that's one of thosereally important points for
people to realize is that eventhough we're a really litigious
society in America, we're kindof known for the place where
everybody runs to court all thetime.
The reality is for most of us,most of the time, we don't want
to go to court.
If something happens in theworkplace that you know, isn't
good, even if you feel yourrights might've been violated,
(11:37):
you'd much rather have anability to complain to the
company and somebody dosomething about it rather than
having to sue your employer.
Katrina Nobles (11:44):
Right.
Right.
I mean, obviously that changes abit if we're talking about
termination or something to thatextent where then you're no
longer employed by the company.
But I mean if we're talkingabout discipline within the
company as a for instance, yes,I mean, I, I think employees
tend to, um, struggle with thosesituations that come up if
(12:05):
there's not a clear path forthem to take to have a
discussion, right?
So if I want to have a difficultdiscussion and say,"Hey, Alex,
you know, I was really offendedby the fact that you were
implying that I needed to dressdifferently because I wasn't
feminine enough" or somethinglike that.
Or I was feeling like that.
Or maybe you explicitly said it,you know, how do I have that
(12:29):
difficult conversation?
Are we expecting the employeewho has been hurt by the event?
Right?
And maybe you didn't evenrealize, that wasn't even in
your conscience.
Right?
So are we expecting thatemployee who's been hurt to
figure out how to have thedifficult conversation on their
own?
Or do we have a path in placefor that?
Dean Colvin (12:51):
So how do we, how do we set up that path?
Right?
If we are as an organizationsaying that we want to allow
people to have those difficultconversations and, and we know
that they might involve rightsand values, things that are
deeply seated in people'sidentity, these, there's going
to be difficult conversations tohave.
You know, how do we make thatpath one that's effective for
(13:13):
employees to be able to have?
Katrina Nobles (13:15):
I think first and foremost, it's having really
clear policies and expectations,right?
If we're expecting that to bepart of our culture, part of the
organization's expectations, weneed to make that clear, right?
So first and foremost, we as anorganization need to be clear on
where we stand on some of thesethings.
Second, I would say there needsto be multiple access points.
(13:38):
Every person's experience isdifferent and every person's
comfort level with direct orindirect dialogue is going to be
different as well.
So we need to have the accesspoint for the person who is more
than happy, I'm going to go talkto Alex directly right now
because of what he said, versusthe person who needs the access
(13:59):
point where it's their manager.
Has the manager beenappropriately trained to manage
that conversation, to have thatconversation, first of all, just
with that employee, right?
To validate what they'refeeling, validate what they're
thinking, but then furthermore,to come up with a plan for how
do we have that conversationwith Alex?
(14:20):
Does it need to be somebodyother than you?
Do we need to go to HR?
Do we need to go to employeerelations?
Right?
But it's having those multipleaccess points and then we have
to be clear on what areconsidered egregious acts or
what are not.
Right.
So what would go through kind ofa performance process, or a
(14:41):
discipline process versusone-on-one difficult
conversations.
Dean Colvin (14:46):
And I could imagine it might vary for employees
depending on the type of issueso that I might be comfortable
raising concern about my salary,but not being comfortable about
having a discussion about anissue relating to gender
identity or sexual orientation.
That I might view that assomething that's much harder to
(15:06):
have the conversation about oronly with certain people?
Katrina Nobles (15:09):
Oh, definitely.
Definitely.
I think the, the topic areamakes a big difference.
The number of access pointsmakes a big difference.
And the, the training thateverybody in our organization
has makes a big difference,especially managers and
supervisors, right?
Because we want them to knowwhat the appropriate paths are.
We want them to know what theright conversations are and who
(15:32):
should be having them.
And when is it appropriate totake it to a higher level?
When is it appropriate toactually say, actually we need
to escalate that to the nextstep.
Dean Colvin (15:43):
It seems particularly difficult in some
of these situations where youhave clashes between employees
who both claim rights basedinterests.
Um, you know, we, we've allheard about the famous case of
the, uh, the bakers who don'twant to bake a wedding cake for
an LGBTQ couple because theyclaim it's against their
(16:05):
religious values.
Now that case, they owned thebusiness.
And so it was based on that.
But I could imagine, you know,that a company I'm running where
I have two employees, each ofwhom claims their own rights.
In the situation, the rights tobe free against discrimination
based on your sexual orientationor gender identity.
And on the other side, theemployee who claims that their
(16:26):
religious rights are beingviolated.
How do we think about thoseconflicts?
Cause that seems like a reallydifficult one to deal with in
the workplace.
Katrina Nobles (16:34):
Yeah.
So I think you said kind of themagic word there in terms of the
most classic cases we see withthe bakers, it was the ownership
piece, right?
I think when you're talkingabout employees, we have to be
willing to kind of step into thedifficult conversation arena.
If we're managing two employeesthat are kind of in that
scenario because there will besome kind of, hopefully in our,
(17:02):
our best case scenarios, right,there will be organizational
policies.
There will be federal laws thatare set and followed, right?
We don't know how the courtcases coming up are going to
turn out.
Regardless of the outcome.
We'll know the outcomeeventually.
Right?
Right.
So we would know what is thatgoing to cover?
(17:24):
Um, organizational policieshopefully have been made clear,
paths have then been made clearand there are certain things
that an organization will haveto decide, you know, if a
conflict gets to X point are weno longer willing to have
difficult conversations and thenit is a performance and
improvement plan and disciplineand termination as a for
(17:48):
instance.
Dean Colvin (17:50):
So an organization could have certain values of its
own that at a certain point isnot willing to compromise those
values and it feels like it hasto take action.
Katrina Nobles (17:59):
Right?
Right.
So I mean the difference thereis that I think the person who
is feeling as though they'rebeing discriminated against
based on sexual orientation andthe person who feels as though
they're being, um, their rightsare being violated because they
(18:23):
have to make accommodations forsomebody with a particular
sexual orientation.
Right?
If those are kind of the twosides of the coin, we have to
look at the bigger picture as anorganization to see where our
values as an organization lie.
Dean Colvin (18:37):
Right?
And I guess, you know, in theworld there are some rights that
are not absolute.
You know, the, the example Ioften think about is, Title VII
says that you're, uh, you don'thave a right based on your
religion to discriminate basedon somebody's race.
So you can't say that, you know,well my, I have a racist
religion and therefore I get todiscriminate based on race.
(19:00):
So we say that there are certainlimits you may have rights, but
they have to be balanced againstother rights that may trump them
in our society.
Katrina Nobles (19:09):
Right?
Right.
So I think that really speaks alot to how are these court cases
going to turn out, right?
Because when we get to the levelof rights, again, it goes back
to discrimination claims thatwould likely go to at least some
form of fact finding andinvestigation and then
potentially through litigation,which puts it at a different
(19:32):
kind of conflict model than theinternal model to the
organization.
So if we're talking aboutsomething that is not supported
by law as a right, per se, it'sthen the difficult conversations
internal to the organization,
Dean Colvin (19:48):
Right.
So, so in a way, it's not asurprise that the Supreme Court
is now dealing with thisquestion of, you know, is sexual
orientation, one of ourprotected categories under our
discrimination law.
Does your gender identity haveprotections under our law?
Because we have these issues inthe workplace, right?
And we, we want the SupremeCourt to tell us, is this
something that's part of ourfundamental rights that we have
(20:10):
in this country againstdiscrimination?
Right.
Well, I think this is a, this isan area that we're going to see
play out, um, over the nextmonths and years.
Uh, however, the Supreme Courtdecides these cases, there's
enormous issues thatorganizations will have to
wrestle with and how effectivelyto deal with these conflicts and
(20:31):
what the best approaches tohaving the difficult
conversations that they'll needto have in dealing with employee
rights and employees interests.
Thank you.
Katrina for this discussion hasbeen really informative and I
think really helpful ourlisteners to learn more about
this topic.
Katrina Nobles (20:47):
No problem.
I really enjoyed it.
Alex.
Diane Burton (20:51):
Thank you for joining us for"Work! Exploring
the future of work, labor andemployment." In our next
episode, Dean Alex Colvin talkswith disabilities expert Suzanne
Bruyere, Director of the ILRSchool's Yang Tan Institute on
Employment and Disability.
They'll discuss whatcorporations and small
businesses can do to buildinclusive work environments for
(21:15):
neurodiverse employees.
Again, thank you for listeningand learn more about ILR by
visiting us on the web atilr.cornell.edu.
Work is all around us.
It defines us and the future ofwork impacts nearly every person
on our planet.
The ILR school at CornellUniversity is at the center of
work, labor and employment,influencing policy and practice
on the most pressing issuesfacing employees and employers.
ILR school Dean Alex Colvin isthe host of our series"Work!
(00:25):
Exploring the future of work,labor and employment," featuring
discussion with experts on keyworld of work topics.
In this episode, Dean Colvin isjoined by Katrina Nobles,
director of conflict programsfor ILR's Scheinman Institute on
Conflict Resolution.
They'll be talking aboutsituations in the workplace that
(00:45):
involve LGBTQ employees.
Dean Colvin (00:49):
Cases of the Supreme Court can seem pretty
theoretical and abstract attimes.
This question of whether genderidentity or sexual orientation
is a right under title seven ornot.
What does this actually meanthough in practice for workers
and for companies?
What's the impact on them ofthese decisions?
Katrina Nobles (01:08):
So I think there's a couple of really
concrete kind of takeaways, forboth individual employees and
also companies or organizations.
So for individual employees, Iwould say, dependent on the
outcome of the case, you need toconsider who do I work for and
(01:29):
why do I work for them?
Right?
You may need to be a little bitmore engaged in learning a
company's policies prior totaking on employment with them
and understand fully whatthey're offering in terms of
either formal protections orexpectations within the company.
I think for a company, dependenton the outcome of the case, a
(01:56):
company really needs to thinkabout kind of what are their
policies, procedures andexpectations, and they need to
be ultra clear with that.
And what are the pathways thatyou can take within the
organization when a conflictcomes up around these issues?
I think this is important,especially if the language
(02:18):
within the federal law or theexpectation within the federal
law becomes more vague insteadof more clear.
You're looking at something thatan organization is going to have
to define and by defining that,they are going to define their
culture.
So policies, procedures, andexpectations a re kind of, kind
of define what your organizationlooks like.
Dean Colvin (02:41):
So the Supreme Court might say that there's a
right against discriminationbased on your sexual
orientation.
But that also might make methink as an employee,"do I want
to work for a company thatdoesn't value that right?"
Something that I value as well.
Or conversely, as a company, Iwant to make sure that the
(03:02):
policies we have reflect thevalues that we as a company
have.
Katrina Nobles (03:06):
Exactly.
Dean Colvin (03:07):
So if somebody never fills a the coffee maker
after they've emptied it, wellit's a day to day irritant
right.
There's, you know, I have aninterest that I'd like you to be
a better colleague and fill thecoffee maker.
But when it comes to anorganization treating me
differently because of my sexualorientation that gets to a
(03:27):
rights issue and I feeldifferently about that because
of the nature of the nature ofthe conflict there.
Katrina Nobles (03:32):
Right.
Yeah.
And that really speaks to, Imean, when we talk about that
particular area of rights, wherewe have things that cover
discrimination and differenttypes of discrimination, you're
talking about identities andidentities are central to who we
are, right?
And we are the center of our ownreality.
So when somebody is attackingsomething that we consider our
(03:54):
identity or a part of ouridentity we're gonna feel it in
a very destructive and deep waywhere we want some larger form
of recourse around whateverthey've done.
Dean Colvin (04:10):
It seems like this is an area we get into clashes
of values and rights too whichare really difficult to deal
with in organizations.
I was just reading about arecent case in North Carolina
involving a teacher who claimedbecause of religious values that
he held that he didn't want touse the pronoun of choice of one
(04:31):
of his students.
Um, that then led to the teacherbeing disciplined by the
organization.
So, you know, it's the kind ofworkplace conflict where you
have a clash between differentrights and different values,
which seemed particularly toughto deal with.
Katrina Nobles (04:47):
Yes, I, you know, I think that is
particularly difficult to dealwith.
And that's something that Ibelieve went through their,
their typical grievanceprocedures.
So there's a system in place forthat, right?
And I think systems are, areequally as important as laws and
policies and procedures, right?
So we think about systemsoffering one way, a grievance
(05:09):
procedure as part of a systemoffering one way to kind of
address value issues or addresspolicy or a rights based issues.
I think the interesting thingwith anything that comes up in
laws in even collectivebargaining contracts, things
like that is that there's acertain amount of
(05:31):
interpretation, right?
And that's what we're dealingwith currently with some of the
things in the news around LGBTQsituations occurring in the
workplace.
And it's interpretation.
So first of all, is it somethingactually having to do with your
(05:52):
identity as an LGBT person asyou know, one avenue?
I think the other kind ofinteresting area with that is,
does it rise to a certain level?
Right?
That's the other part we kind ofthink about with rights and
laws.
We see it in the Me Too movement, in terms of the level of what
(06:14):
we consider sexual harassment.
And as a country we'restruggling with that one too.
Right?
So, I think it's kind ofinteresting because we think of
rights and morality often askind of a black and white, right
and wrong type situation when infact there's quite a bit of
(06:37):
interpretation involved.
Dean Colvin (06:39):
That leads into, I think a question that people
often struggle with.
What's the role of companypolicies and company authority
versus individual rights andhow, how do you balance those
two and their impact on, on aworker, right?
The company says one thing, thisis our policy, right?
And then the workers are like,okay, how does that mesh with my
(07:01):
individual rights?
Katrina Nobles (07:02):
Right?
So typically when we seepolicies that differ from, from
federal law, at least in myexperience, it's been policies
that go above and beyond afederal law.
Right?
So you might have the basediscrimination laws that are out
there where you can make a claimwith the EEOC or, or things
similar to that.
(07:24):
And then you've got a companywho maybe is a very liberal
company or a very green companyor something like that, and they
take a policy that puts afurther restriction or a greater
expectation on the base levelfederal law.
(07:44):
Right?
And so I think policies play avery big role in shaping the
culture of an organizationbecause it basically sets
expectations.
Dean Colvin (07:53):
So I think it must be a surprise sometimes to
employees to encounter that,that the company has something
that is an expectation that'shigher than what the basic
rights that they have are.
Katrina Nobles (08:06):
Right.
Dean Colvin (08:07):
Uh, one of the examples that I think is
interesting to think about withthis is sexual harassment.
You know, we have our lawsprotecting against sexual
harassment, but companies oftenseem to have more extensive
rules such as, you know, youcan't date a coworker, right?
No.
dating at work policies thatemployees may, may think
(08:32):
impinges on their personalrights.
Katrina Nobles (08:35):
Yes.
And I think, I think a lot ofthat in terms of how those
policies and or procedures playout are dependent in some way on
how they've been written out,how they've been set forth in
terms of employee handbooks.
What setting are you in?
(08:56):
Are you in a unionized settingor are you in a non-unionized
setting?
Then you have, if you're in aunionized setting, you have the
backing of the collectivebargaining agreement as well as
the union as a whole.
And I think that it, it doesbecome somewhat interesting and
some of those things that tendto be unclear if the
expectation, whatever that aboveand beyond expectation is in a
(09:18):
policy was not made clear or wasnot made available.
Those are the times where youmight see individual rights
winning out over companypolicies and expectations.
I think there's a pretty largepopulation that tend to be in
non-unionized workforces, right?
So they're employees at will andthe company if they've laid out
(09:40):
a clear policy that providesappropriate and clear
expectations, regardless ofwhether that kind of steps over
the boundaries of personalrights.
To some extent there are, aresome, boundaries on that.
But to a certain extent thecompany's rights could win over
(10:03):
an individual's rights.
Dean Colvin (10:05):
So you're circling back to these Supreme Court
cases, right?
So let's suppose the SupremeCourt decides that sexual
orientation is not protectedunder Title VII, so employees
don't have the individual,right.
I guess it would still be thecase that a company, if the
company had a policy that you'renot allowed to discriminate
based on sexual orientation,then as an employee, you're
(10:25):
bound by that policy, right?
Katrina Nobles (10:27):
Yes.
Yes.
So I think the key here thoughis that you know, you might see
these cases going in a slightlydifferent direction.
So the, the time where it's afederal law that's upholding a
right, you'd take it potentiallyin the, in the path of
litigation, right?
I'm going to take it to thecourts.
(10:49):
Whereas if it's, if it's more ofa policy of a company, the hope
would be you'd have someinternal process that's
occurring that would kind ofhelp determine some of these
steps before litigation.
Right.
Because there's not a law per sethat's going to distinctly say
(11:10):
you can't discriminate on thebasis of sexual orientation, if
the case were to go that way.
Dean Colvin (11:15):
Yeah.
I think that's one of thosereally important points for
people to realize is that eventhough we're a really litigious
society in America, we're kindof known for the place where
everybody runs to court all thetime.
The reality is for most of us,most of the time, we don't want
to go to court.
If something happens in theworkplace that you know, isn't
good, even if you feel yourrights might've been violated,
(11:37):
you'd much rather have anability to complain to the
company and somebody dosomething about it rather than
having to sue your employer.
Katrina Nobles (11:44):
Right.
Right.
I mean, obviously that changes abit if we're talking about
termination or something to thatextent where then you're no
longer employed by the company.
But I mean if we're talkingabout discipline within the
company as a for instance, yes,I mean, I, I think employees
tend to, um, struggle with thosesituations that come up if
(12:05):
there's not a clear path forthem to take to have a
discussion, right?
So if I want to have a difficultdiscussion and say,"Hey, Alex,
you know, I was really offendedby the fact that you were
implying that I needed to dressdifferently because I wasn't
feminine enough" or somethinglike that.
Or I was feeling like that.
Or maybe you explicitly said it,you know, how do I have that
(12:29):
difficult conversation?
Are we expecting the employeewho has been hurt by the event?
Right?
And maybe you didn't evenrealize, that wasn't even in
your conscience.
Right?
So are we expecting thatemployee who's been hurt to
figure out how to have thedifficult conversation on their
own?
Or do we have a path in placefor that?
Dean Colvin (12:51):
So how do we, how do we set up that path?
Right?
If we are as an organizationsaying that we want to allow
people to have those difficultconversations and, and we know
that they might involve rightsand values, things that are
deeply seated in people'sidentity, these, there's going
to be difficult conversations tohave.
You know, how do we make thatpath one that's effective for
(13:13):
employees to be able to have?
Katrina Nobles (13:15):
I think first and foremost, it's having really
clear policies and expectations,right?
If we're expecting that to bepart of our culture, part of the
organization's expectations, weneed to make that clear, right?
So first and foremost, we as anorganization need to be clear on
where we stand on some of thesethings.
Second, I would say there needsto be multiple access points.
(13:38):
Every person's experience isdifferent and every person's
comfort level with direct orindirect dialogue is going to be
different as well.
So we need to have the accesspoint for the person who is more
than happy, I'm going to go talkto Alex directly right now
because of what he said, versusthe person who needs the access
(13:59):
point where it's their manager.
Has the manager beenappropriately trained to manage
that conversation, to have thatconversation, first of all, just
with that employee, right?
To validate what they'refeeling, validate what they're
thinking, but then furthermore,to come up with a plan for how
do we have that conversationwith Alex?
(14:20):
Does it need to be somebodyother than you?
Do we need to go to HR?
Do we need to go to employeerelations?
Right?
But it's having those multipleaccess points and then we have
to be clear on what areconsidered egregious acts or
what are not.
Right.
So what would go through kind ofa performance process, or a
(14:41):
discipline process versusone-on-one difficult
conversations.
Dean Colvin (14:46):
And I could imagine it might vary for employees
depending on the type of issueso that I might be comfortable
raising concern about my salary,but not being comfortable about
having a discussion about anissue relating to gender
identity or sexual orientation.
That I might view that assomething that's much harder to
(15:06):
have the conversation about oronly with certain people?
Katrina Nobles (15:09):
Oh, definitely.
Definitely.
I think the, the topic areamakes a big difference.
The number of access pointsmakes a big difference.
And the, the training thateverybody in our organization
has makes a big difference,especially managers and
supervisors, right?
Because we want them to knowwhat the appropriate paths are.
We want them to know what theright conversations are and who
(15:32):
should be having them.
And when is it appropriate totake it to a higher level?
When is it appropriate toactually say, actually we need
to escalate that to the nextstep.
Dean Colvin (15:43):
It seems particularly difficult in some
of these situations where youhave clashes between employees
who both claim rights basedinterests.
Um, you know, we, we've allheard about the famous case of
the, uh, the bakers who don'twant to bake a wedding cake for
an LGBTQ couple because theyclaim it's against their
(16:05):
religious values.
Now that case, they owned thebusiness.
And so it was based on that.
But I could imagine, you know,that a company I'm running where
I have two employees, each ofwhom claims their own rights.
In the situation, the rights tobe free against discrimination
based on your sexual orientationor gender identity.
And on the other side, theemployee who claims that their
(16:26):
religious rights are beingviolated.
How do we think about thoseconflicts?
Cause that seems like a reallydifficult one to deal with in
the workplace.
Katrina Nobles (16:34):
Yeah.
So I think you said kind of themagic word there in terms of the
most classic cases we see withthe bakers, it was the ownership
piece, right?
I think when you're talkingabout employees, we have to be
willing to kind of step into thedifficult conversation arena.
If we're managing two employeesthat are kind of in that
scenario because there will besome kind of, hopefully in our,
(17:02):
our best case scenarios, right,there will be organizational
policies.
There will be federal laws thatare set and followed, right?
We don't know how the courtcases coming up are going to
turn out.
Regardless of the outcome.
We'll know the outcomeeventually.
Right?
Right.
So we would know what is thatgoing to cover?
(17:24):
Um, organizational policieshopefully have been made clear,
paths have then been made clearand there are certain things
that an organization will haveto decide, you know, if a
conflict gets to X point are weno longer willing to have
difficult conversations and thenit is a performance and
improvement plan and disciplineand termination as a for
(17:48):
instance.
Dean Colvin (17:50):
So an organization could have certain values of its
own that at a certain point isnot willing to compromise those
values and it feels like it hasto take action.
Katrina Nobles (17:59):
Right?
Right.
So I mean the difference thereis that I think the person who
is feeling as though they'rebeing discriminated against
based on sexual orientation andthe person who feels as though
they're being, um, their rightsare being violated because they
(18:23):
have to make accommodations forsomebody with a particular
sexual orientation.
Right?
If those are kind of the twosides of the coin, we have to
look at the bigger picture as anorganization to see where our
values as an organization lie.
Dean Colvin (18:37):
Right?
And I guess, you know, in theworld there are some rights that
are not absolute.
You know, the, the example Ioften think about is, Title VII
says that you're, uh, you don'thave a right based on your
religion to discriminate basedon somebody's race.
So you can't say that, you know,well my, I have a racist
religion and therefore I get todiscriminate based on race.
(19:00):
So we say that there are certainlimits you may have rights, but
they have to be balanced againstother rights that may trump them
in our society.
Katrina Nobles (19:09):
Right?
Right.
So I think that really speaks alot to how are these court cases
going to turn out, right?
Because when we get to the levelof rights, again, it goes back
to discrimination claims thatwould likely go to at least some
form of fact finding andinvestigation and then
potentially through litigation,which puts it at a different
(19:32):
kind of conflict model than theinternal model to the
organization.
So if we're talking aboutsomething that is not supported
by law as a right, per se, it'sthen the difficult conversations
internal to the organization,
Dean Colvin (19:48):
Right.
So, so in a way, it's not asurprise that the Supreme Court
is now dealing with thisquestion of, you know, is sexual
orientation, one of ourprotected categories under our
discrimination law.
Does your gender identity haveprotections under our law?
Because we have these issues inthe workplace, right?
And we, we want the SupremeCourt to tell us, is this
something that's part of ourfundamental rights that we have
(20:10):
in this country againstdiscrimination?
Right.
Well, I think this is a, this isan area that we're going to see
play out, um, over the nextmonths and years.
Uh, however, the Supreme Courtdecides these cases, there's
enormous issues thatorganizations will have to
wrestle with and how effectivelyto deal with these conflicts and
(20:31):
what the best approaches tohaving the difficult
conversations that they'll needto have in dealing with employee
rights and employees interests.
Thank you.
Katrina for this discussion hasbeen really informative and I
think really helpful ourlisteners to learn more about
this topic.
Katrina Nobles (20:47):
No problem.
I really enjoyed it.
Alex.
Diane Burton (20:51):
Thank you for joining us for"Work! Exploring
the future of work, labor andemployment." In our next
episode, Dean Alex Colvin talkswith disabilities expert Suzanne
Bruyere, Director of the ILRSchool's Yang Tan Institute on
Employment and Disability.
They'll discuss whatcorporations and small
businesses can do to buildinclusive work environments for
(21:15):
neurodiverse employees.
Again, thank you for listeningand learn more about ILR by
visiting us on the web atilr.cornell.edu.
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