Wednesday, 4 November 2020

Protecting Our People

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You might have read about a claim brought against Cisco by California’s Department of Fair Employment and Housing (DFEH) on behalf of a current Cisco employee, claiming that the employee (we’ll call him “G.,” not his real initial) was denied opportunities by his manager on the basis of G.’s Indian caste. Because the claim of caste discrimination is novel in the American legal system, it has received a lot of attention. This blog is to update you about this case and what we’ve learned.

For those not familiar with the concept of caste, caste refers to a system of dividing society into hereditary classes, some of whom inherit exclusive privileges. While caste is most frequently used to refer to distinctions in Indian society, the concept is a useful one for understanding many different kinds of discrimination based on hereditary characteristics. Isabel Wilkerson, whose Warmth of Other Suns helped me understand the insidious nature of anti-Black racism in the US, has written a magnificent new book applying the concept to US racism, entitled Caste: The Origin of Our Discontents. To understand the analysis more fully, you may want to read the book, or read Harvard Law Professor Ken Mack’s great Washington Post review.

Cisco has a long history of zero tolerance for discrimination. We began pay equity reviews more than five years ago, and have extended that to promotions and the full spectrum of compensation, beyond base pay. With our roots in California, Cisco has long taken an expansive view of workplace discrimination and, even before the US adopted legal protections based on sexual orientation, we pledged to and did investigate (and where needed remediate), any case raising issues of discrimination based on LGBTQ status. We also are committed to transparency. Unlike many companies, we are fully transparent with our employees and our Board about the number of internal complaints raised by employees alleging bias, discrimination, harassment, or bullying and bad behavior.

Our conscious culture is a big part of the reason that we recently were selected for the second year in a row as Global #1 in the “Great Places to Work” survey. The results are based on our own employees’ own responses to the survey. Part of being a great place to work means honestly confronting challenges and pushing ourselves to do better. When G.’s complaint came to our Employee Relations Department, it was indeed novel – we had never encountered a claim of casteism. Nevertheless, Employee Relations management instructed that it be investigated as would be any complaint of discrimination, even though there is no law, federal or state, defining caste as a protected classification. Here’s what we learned:

☉ G. was hired by Cisco approximately five years ago as a Senior Engineer working on highly coveted, advanced projects. G. was recruited and hired to the role by someone G. had known since they had attended university together in India. That person became G.’s manager at Cisco.

☉ In keeping with the special role working on advanced technologies for which he was recruited, G. received from his manager special bonuses to come to Cisco. Even within that special projects team, G. was among the highest compensated members.

☉ G. claims that shortly after he started at Cisco, the same manager who recruited and hired him for this selective engineering position, and knew his caste when he did so, had told another team member the year before that G. was not on the “main list” at their university, which G. feels revealed G.’s caste to his coworker. G. does not allege that he suffered any discrimination in this first year even though his caste was apparently known to some of his coworkers. G claims that he spoke to his manager about this alleged statement and that his manager thereafter retaliated by failing to give him a leadership position in the aftermath of a team restructuring, and isolating him from the team.

☉ G. also alleges that his subsequent manager continued the alleged acts of retaliation and discrimination. And he alleges that another coworker of Indian origin (whose caste G. doesn’t mention) received a management role that he wanted.

☉ The manager against whom the vast majority of these allegations were made, is the same manager who hired, gave leadership opportunities, provided top compensation, including special bonuses, to G., all the while allegedly having knowledge of G.’s caste because of their relationship that dated back to their studies together.

The Cisco investigation was thorough and complete. We found no evidence that G. was discriminated or retaliated against on the basis of caste. G. also had the opportunity to seek a thorough second-level review of the outcome of the initial investigation, which was conducted, and the initial findings of no caste discrimination or retaliation were confirmed. Given our principles, had we found discrimination or retaliation, we would have remediated it, regardless of the fact that there is no legal basis in the US for a claim of caste discrimination.

Ultimately G. sought out, was offered, and accepted a lateral role on another engineering team at Cisco, where G. still works, with no degradation of compensation.

Given this history, we were surprised the California DFEH decided to file a complaint. Concerned that G. might be discriminated against further were his caste publicly known, DFEH and G. have insisted on keeping G.’s identity confidential, a courtesy neither he nor the DFEH extended to G.’s former managers. Instead, they publicly named the managers, resulting in harassment and abuse on social media with no chance to be heard and defend themselves.

We must of course respond to the DFEH complaint. G. signed an arbitration agreement when his employment at Cisco commenced, and once we informed the DFEH that we would be asking the court to refer the case to arbitration, the DFEH voluntarily dismissed the case from federal court and refiled in state court. Even now that we are in state court, we are asking the court to refer the case to arbitration. We have a workforce in the US of over 30,000 employees. And, in the past five years, we’ve only had 14 employee-initiated claims proceed to arbitration.

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We are well aware of the concerns about arbitration that have been raised in the context of the #MeToo movement. To ensure those concerns are addressed for all claims of unfair treatment by our employees, we’ve taken intentional steps to ensure that all arbitrations arising from claims brought by Cisco employees address these concerns:

◉ We don’t ask that employees keep the results of arbitration confidential (even though we are bound to do so if the employee requests);

◉ Employees choose the site of arbitration, so employees aren’t forced to pursue their claim in a far off or inconvenient place;

◉ Cisco pays for the costs of the arbitration;

◉ The employee is a coequal partner in selecting the arbitrator – this isn’t our decision alone; and

◉ If we enter into a settlement agreement, we do not require confidentiality regarding the facts of the case.

Given G.’s reputation concerns and desire for privacy, arbitration should be G.’s preferred forum as he will be able to control whether it is public or not.

We thoroughly examined G.’s concerns and continue to believe that he was treated fairly. We also don’t believe we should be subject to claims either in court or in an arbitration for a form of alleged discrimination that is not legally recognized. We would however fully support the Legislature adding caste to the list of categories having protection against discrimination. Until that happens, we will continue to treat caste as an unacceptable form of discrimination for purposes of our internal reviews – as we did in G.’s case.

Source: cisco.com

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