HR MANAGERS AS ETHICS AGENTS OF THE STATE 145of behaviour would occur rarely but nearly one quarter of all EEOC cases are
based on complaints of employer retaliation (Shapiro cited by Mello 2000).
In operationalizing EEO, it is common for employers to delegate much
of the responsibility for compliance to an EEO/AA manager who may work
within the HR division or who may be independent from HR, although the
latter is perhaps more likely to occur in larger organizations that can afford
the luxury of someone checking up on the gatekeepers to the organization who
are also the advisors to managers. The Code of Federal Regulation outlines the
EEO/AA employee’s duties as including the development of policy statements,
AA programmes, internal and external communication techniques; assisting
in the identification of problem areas; designing and implementing auditing
and reporting systems to ensure the effectiveness of programmes; serving as
the liaison between the organization and enforcement agencies; and serving as
the liaison between the organization and minority organizations and groups
concerned with employment opportunities for marginalized groups such as
women and minorities. Weatherspoon (2000) reports that it is typical for EEO
job descriptions to require the EEO/AA employee also to investigate com-
plaints of discrimination, to recommend disciplinary actions for employees
who violate anti-discrimination laws and policies and to alert the public and
federal agencies of discriminatory practices.
Clearly, this role is fraught with a variety of minefields in which the HR
employee is between a rock and a hard place. Weatherspoon (2000) argues
that it is not infrequent that the EEO employee has to advise their employer
that the law has been breached and this in itself may well result in reprisal from
the employer, even though the same employer probably hired the EEO officer
to monitor this area.
Under common law, every employee, no matter whether in management
or even at the EEO officer level, has a duty of loyalty and confidentiality to
their employer and a clear duty to protect the employer’s interests (Larmer
1992). This concept of loyalty is common across many countries; it is not
unique to the USA. In fact, Aaron (1999), in his overview of the laws governing
loyalty in countries including Australia, Canada, England, France, Germany,
Italy, Japan, New Zealand, Sweden, and the USA suggests that it is commonly
held that employees must behave in ways that enhance rather than detract
from the interests of the employer. Pfeiffer agrees but adds that this should
not be in a manner which is illegal or unethical (1992, citing Michalos). From
the employer perspective, a 1997 House of Lords decision pointed out that
employers, similarly, must not behave in a manner that serves to damage
the trust and confidence between themselves and their employees (Hepple
1999; McCallum and Stewart 1999). An obvious conflict arises when issues
of alerting public and federal agencies about non-compliance comes into play.
However, even in these cases, it might also be thought that those who have
been appointed to take care of this important area of EEO would also be