Docket Entries Since Last Update
NOTE: This court's RSS feed does not list MOTION entries, so Bloomberg Law cannot detect them and thus they will not be listed here. However, motions will be included if you update the docket.
Some human resource and legal professionals think that effective compliance requires volumes of policies and a corresponding bureaucracy to implement those policies. Although that approach may work for some companies or be mandated in heavily regulated industries, it may be counterproductive in others. Much will depend on the “tone at the top,” which is one of the most critical tools in the compliance arsenal. Lower-level employees carefully watch the actions of senior managers—executives and frontline managers—to see what management truly deems important and rewards. Everything else typically flows from that, including whether a compliance program or a new initiative will succeed or fail. Dawn-Marie Driscoll, Executive Fellow, and W. Michael Hoffman, Executive Director, of the Center for Business Ethics at Bentley University, succinctly put it this way in their book Ethics Matter: “No organization—even if every employee group is well represented in the design and implementation of the program—will fully embrace a values-driven culture if employees sense that senior managers are not true believers in the program, or believe in it for others but not for themselves.”1
“Tone at the top” is not limited to just the words and actions of the members of the executive suite. In many organizations, the employees in the trenches do not interact with the executives and may be located in offices far removed from where the executives sit. As research by the Corporate Executive Board (CEB) has confirmed, the “tone in the middle” is also critical:
Middle managers disproportionately affect employees. Recent CEB analysis confirms that managers strongly affect local culture. Middle managers positively influence integrity levels of local teams, resulting in a stronger control environment. Their behaviour, when aligned with corporate culture, reduces the likelihood of misconduct. It also increases the likelihood of their team members being prepared to debate potential ethical dilemmas and speaking up about observed misconduct. Their demonstration of high ethical standards is also strongly correlated with increased employee discretionary effort.
The tone at the top does not always trickle down. CEB research indicates that while employees have slightly improved their perceptions about the Tone at the Top since the financial crisis, they remain much more skeptical about the ethical leadership of their direct managers. It turns out that a strong ethical leadership at the top does not always spread to the middle, and therefore may be an inadequate indicator of a strong control environment. This is intuitively right as most employees see their managers regularly and the top executives very rarely—so their department manager is the real embodiment of corporate values. This is further reinforced by the fact that the Tone at the Top is somewhat unstable, with the average tenure of [chief executive officers] being fewer than four years.2
Thus, when it comes to gender identity, gender expression, or sexual orientation in the workplace, it is important for the human resource department to secure senior management buy-in to an ethos that discrimination and harassment of LGBT employees will not be tolerated. In some organizations, this ethos might already be implicit but simply has not been expressed in a written policy or by senior management to employees. In other companies, human resource professionals may need to educate senior management about the need to address workplace inequities faced by LGBT employees, the subtle and not-so-subtle workplace discrimination they confront, and the positive impact that LGBT-inclusive policies can have on the organization.
Once management is onboard and committed to enforcing a discrimination-free work environment for all employees, regardless of their gender identity, gender expression, or sexual orientation, the remaining steps should be easier to implement. Ultimate success will depend in large part on senior managers throughout the company leading by example, thereby setting the tone within the entire organization.
It is important to build a sustainable culture of inclusion that survives executive and frontline manager turnover, so that efforts to effect positive change in attitudes on LGBT issues are not neutralized when key personnel leave the organization.3 Having broad-based, ongoing committed support of senior management will help the human resource department implement effective programs, including communication strategies, that can withstand changes in management.
Ethics and compliance officers often discuss with employees the difference between what a person has a legal right to do and what is the right thing to do. Although discriminating against people because of their gender identity, gender expression, or sexual orientation may be legal under the laws in many states, it is not the right thing to do. Senior management should consider Martin Luther King, Jr.'s observation: “[H]istory will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people.”4
 Dawn-Marie Driscoll & W. Michael Hoffman, Ethics Matter: How to Implement Values-Driven Management 171 (2000).
 Ian Beale, Importance of Tone in the Middle, CEB Blogs (Jan. 17, 2013)
 Studies indicate that the average tenure of chief executive officers is between three and seven years. See, e.g., Ian Beale, Importance of Tone in the Middle, CEB Blogs (Jan. 17, 2013) (fewer than four years); Press Release, American College of Healthcare Executives, Hospital CEO Turnover Rate Decreases Slightly (Mar. 14, 2011), available at www.ache.org/Pubs/Releases/2011/turnover.cfm (annual tenure among hospital CEOs between 2001 and 2010 fluctuated between 5.6 and 7.1%); Steven N. Kaplan & Bernadette A. Minton, How Has CEO Turnover Changed?, University of Chicago Booth School of Business and National Bureau of Economic Research Working Paper 3 (Aug. 2008), available at http://faculty.chicagobooth.edu/steven.kaplan/research/km.pdf (average tenure of CEOs between 1998 and 2005 was 5.7 years); cf. Spencer Stuart, 2004 CEO Study: A Statistical Snapshot of Leading CEOs (2004) (in 2004, four years was the median tenure for the S&P 500 CEOs).
 Martin Luther King, Jr., Stride Toward Freedom: The Montgomery Story 196 (Beacon Press 2010) (1958).