ORC Sightlines

August 2009

In this issue:

Wellness Culture is Part of Corporate Sustainability Strategy in Asia Pacific

So-called “wellness”—providing facilities, information, tools, and services to help employees stay healthy—has increasingly gained favor in the US and Europe as a strategy for controlling health care costs and increasing productivity. Last month’s meeting in Shanghai of ORC’s Asia Pacific Health, Safety, and Environmental Forum demonstrated that wellness is becoming an important part of multinational companies’ sustainability strategy in that part of the world as well.

Dr. Fiona BaoDr. Fiona Bao, Dow Chemical’s Regional Medical Director for North Asia Pacific, described her company’s approach to more than 60 delegates at the meeting. The strategy rests on four pillars: prevention, quality and effectiveness, healthcare system management, and advocacy. Metrics track how attention to these four areas affect the company’s costs, productivity, and culture.

Where possible, Dow Chemical ties its wellness activities to nationwide programs in each country. In China, for example, the Golden Goal campaign in 2008 caught the excitement surrounding China’s hosting of the 2008 Olympic Games and boosted participation in the company’s health initiative to all-time highs. During the campaign, the company’s Chinese facilities competed with one another and medals were awarded to employees for exercising a certain length of time.

Meeting participants had the opportunity to tour the new wellness facility in Dow Chemical’s Greater China R&D center. They were greeted by security personnel who administered automatic body scale temperature tests to everyone to prevent anyone who might have H1N1 or Avian flu from entering. (Our group were all cleared to enter.)

The wellness facility provides employees who pay a minimal fee with:

The wellness center also includes a well-equipped medical center and sick bay staffed by two doctors.

For information about ORC’s Asia Pacific HSE Forum and future meetings, contact Norman Tan, +65 6438-0004 in Singapore, or Dee Woodhull, +1-212-293-2980 in Washington, DC.

Diversity Programs at Risk Following Supreme Court Decision

Since the U.S. Supreme Court released its decision in Ricci v. DeStefano last April, employment lawyers and HR managers have been pondering what it all means and what impact it may have on how businesses manage a diverse workforce. To help sort through the practical implications of Ricci, ORC invited Tom Goldstein of Akin Gump to join a discussion with Network members. Nationally known for his SCOTUSblog commentaries on Supreme Court actions, Goldstein believes Ricci will indeed increase the legal risk to companies that consider race or gender when making employment decisions.

The Ricci case addressed what happens when one group tends to do better or worse than other groups on employment tests or other employment criteria. In the past, employers have sometimes ignored results of the test when they adversely impacted opportunities for protected groups, such as African-Americans or women, because they believed the adverse impact would subject the company to liability. Ricci has raised fears that employers will be caught between two untenable positions: either making decisions based on the test and being sued by the members of the group adversely affected by it or ignoring results of a test and being sued by the people the test would have advantaged.

The facts in Ricci v. DeStefano were these: The city of New Haven’s fire department has a large number of African-American and Hispanic firefighters, but most of the lieutenants and colonels are white. When the city needed to promote new lieutenants and colonels, it administered a new pencil-and-paper test to candidates. No African-Americans achieved a passing score on the test. Concerned that it would be subject to lawsuits by African-Americans because the test had an adverse impact on their opportunities for advancement, the city decided to not promote anyone.

Several white firefighters who would have been promoted based on the test results sued the city, saying that the city decided not to promote them because of race. There was some indication that politics in New Haven had an impact on the position the city took. The city won at the trial court, and the Second Circuit Court of Appeals upheld that decision in a very short opinion. (That opinion became a cause célèbre when Second Circuit Court of Appeals Judge Sonia Sotomayor, who voted to uphold the trial court decision, was nominated for the U. S. Supreme Court.)

However, in a 5-4 decision the Supreme Court reversed and held that the city of New Haven violated Title VII of the Civil Rights Act of 1964 when it refused to promote anyone based on fears of a lawsuit by African-American applicants. According to the Court, the city could only refuse to promote the white firefighters if the city had a “strong reason to believe” it would lose a lawsuit by African-Americans. The court held that the test’s adverse impact against African-Americans, while significant and supportive of a prima facie case of discrimination, was not a sufficiently “strong basis in evidence” for believing the city could be liable under Title VII. In short, the Court said that refusing to promote the white firefighters because no African-Americans would be promoted was a decision based on the race of the candidates, which is illegal under Title VII.

Unless and until Congress decides to rewrite the law to negate the Court’s decision (and there is no indication that it is interested in doing so at present), diversity programs that attempt to increase opportunities for minorities and women may be at risk to the extent that employees are selected for developmental programs or other special treatment based on race or gender. Goldstein advises employers to review their hiring, promotion and layoff processes to make sure that adverse impact analyses do not change the ultimate decision based on race, gender, age, etc., and to talk to their lawyers about potential liability under the Ricci decision. In essence, with this decision, the Court seems to be taking the position that disparate treatment—making decisions about individuals based on race or other protected characteristics—will always trump disparate impact.

ORC Knowledge Center: Popularity of “Expatriate Light” Packages Grows in Asia; Nurturing Authentic Diversity Champions

Personneltoday.com has published ORC’s findings from two recent surveys covering pay packages for expatriates in Hong Kong, Singapore, and China. Companies in these countries are increasingly turning to “local plus” arrangements—sometimes referred to as “expatriate light”—to curb the costs of staffing positions in Asia with foreign talent. The exact composition of local plus packages varies by country, company, and often individual situation, but most combine salary based on the host-country pay structure with a few expatriate-type benefits “tacked on,” according to Phil Stanley, managing director of ORC Worldwide’s Asia-Pacific region. In China, especially, Stanley said, “the concept is still very much a work-in-progress.”

An article in Diversity Executive by Patrice Hall, vice president in charge of ORC’s global equality, diversity, and inclusion practice, makes the point that really committed diversity champions are engaged personally, in their hearts, not just their minds, and offers some ideas for how to nurture this kind of authentic passion in business leaders. Hall argues, “True champions understand their own issues, and they’re not afraid to explore them publicly.” But if the individual’s life experience has not yet provided such an epiphany, companies need to provide him or her with the opportunity to get to know people who are different from him or herself whom they might not encounter in their day-to-day activities.

 

 

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