The emergence of self-directed work teams and their effect on Title VII law.

• Author: Polland, Andrew

INTRODUCTION

Many Fortune 1000 companies have recently implemented various forms of enhanced employee participation, often referred to as work teams or quality circles, in an effort to remain competitive in today's international economy.

During the past decade, a number of major American companies have quietly launched and nurtured self-directed work teams, and have reaped substantial rewards with little or no fanfare. Xerox, Procter & Gamble, Tektronix, GM, Blue Cross of California, TRW, Shenandoah Lire, and many others have realized the enormous power of the fully trained, fully committed team that is fully responsible for turning out a final product or service.(2) This recent trend raises some rather novel issues in claims of discrimination under Title VII.(3) For example, how is an African American team member supposed to prove that the team's promotion of a white male to the position of supervisor was a violation of Title VII, when the decision is inherently subjective and is ultimately formed by fifteen different people? Team decision making complicates a paradigmatic Title VII analysis because the structure of decision making differs dramatically from that which Congress envisioned when it enacted Title VII in 1964. The inherent problems associated with team decision making are beginning to surface in Title VII litigation. For example, three African American employees filed a Title VII claim in the U.S. District Court in Milwaukee, claiming that S.C. Johnson Wax's reliance on self-directed teams on the factory floor has limited African American employees' opportunity for advancement.(4) This suit "appears to be the first race-bias complaint that involves work teams."(5)

This Comment will address the issues that arise in team-based decision making and will propose a more tenable Title VII framework for analyzing the S.C. Johnson claim and others like it. Part I will explain the impetus for the team structure and how teams generally function within American companies. Part II will discuss how a Title VII claim is analyzed under a typical hierarchical framework for both "pretext" and "mixed motive" claims as well as "disparate impact" claims. Part III will discuss the difficulty of bringing Title VII claims against subjective employment decisions under present law, and the added difficulty of applying such an analysis to team-based decisions. Additionally, Part III will explain the tenets of cognitive bias theory and will explore the dynamics of team decision making and the possible unconscious biases that can affect it. Part III will also address the shortcomings of Title VII, which presently fails to account for cognitive biases that can influence group behavior, even subconsciously. Part IV will focus on the Title VII framework for multi-input employment decisions by examining two cases that are analogous to team-based decisions. Part V will advocate changes in Title VII law to accommodate this new organizational structure in American companies. It will suggest: (1) eliminating the "Hicks" factor; (2) requiring an employer to adopt procedural safeguards to minimize evaluator bias in subjective evaluations; (3) imposing liability on employers when one evaluator takes an unlawful consideration into account when making an employment decision; and (4) allowing employees to demonstrate that an employer's reliance on the team structure in general is having a disparate impact on their employment opportunities. These changes are designed to help eliminate the present insulation from Title VII liability seemingly enjoyed by employers relying on subjective, group employment decisions.

1. THE RISE OF TEAM STRUCTURES AND THEIR OPERATION IN THE FORTUNE 1000

   In order to remain competitive in the international economy, many American companies have adopted new technologies and incorporated greater flexibility in their respective production processes.(6) A common means of remaining competitive has been a decreased reliance on traditional organizational structures, accompanied by a corresponding increase in reliance on bottom-up decision making. Bottom-up decision making occurs when workers are empowered with real decision-making authority regarding their everyday production tasks.(7) Workers are still supervised by some form of management, and the upper levels of management continue to control company policies and goals. The form and title of the revised organizational structure varies dramatically within companies, ranging from self-directed work teams(8) to total quality management,(9) but the central tenet remains the same in most cases: give employees greater control over the production process by eliminating formal structures of hierarchy, usually through the elimination or restructuring of middle management.(10) This shift in organizational structure is designed to enable the company to produce its product at a lower cost than its competitors.

   Workplace decisions are usually based on the team's consensus, and a given team may control the production process, hiring, promotions, discipline, evaluations, and layoffs.(11) To ensure that team members are capable of handling these various tasks, employees receive training to improve their technical, interpersonal, and administrative skills.(12) Employees operating in enhanced participatory regimes generally have more motivation on the job, lower levels of absenteeism, and greater loyalty to their employer, all of which enhance their productivity.(13) In addition, such a system promotes flexibility, encourages the acceptance of new technologies, and leads to innovations in the modes of production that can improve efficiency.(14)

   The shift towards decentralization in the production process has not been limited to traditionally blue-collar jobs. Autonomous work teams have also been effectively used for some white-collar positions.(15) A 1990 study found that 47% of the Fortune 1000 are using some form of self-managing work teams, an increase from 28% in 1987.(16) While many of the companies that have adopted the concept of enhanced employee participation have yet to incorporate their model throughout the company,(17) the increasing number of Fortune 1000 companies experimenting with such forms of production is an empirical indication that those that have implemented such a system have been successful in their endeavors.

   Generally, an individual's performance in a self-directed work team is evaluated based on the productivity of her team.(18) Such an evaluation system encourages team members to align their personal goals with that of the team.(19) Professor Lawler's 1990 study found that 61% of the companies that have based their reward system on team incentives round them to be successful or very successful, while only 5% round such incentives to be unsuccessful.(20) Even within the team context, however, some form of individual review exists. The most popular form of individual review is peer appraisals:

   Team members are in the best position to judge other individuals on the team because of their more frequent interactions in the work area and in team meetings.... Peer appraisals also help to empower teams because they are another management responsibility the team can assume with the aid of some guidelines and a good appraisal system.(21) It is quite possible to imagine the potential shortcomings of a peer-review system, however, particularly if the organization's evaluation process is not designed to catch biases and prejudices among the team members. Prejudice within the group can have a devastating effect on the appraisal a particular employee receives from her peers, which in turn may negatively affect her compensation level.(22) The novel aspect of the discriminatory team decision, as compared to that of a traditional prejudiced supervisor, is the difficulty in proving an allegation of discrimination due to the number of subjective evaluations that are considered in reaching the decision being challenged. An aggrieved employee in a traditional workplace, on the other hand, can more readily identify the source of potential animus when making a Title VII claim.

   Autonomous work teams are premised on the notion that every member of the team participates in decision making. These teams, too, have the potential for various forms of discrimination to infect the decision-making process. For example, team members may elect their supervisor from within the group.(23) In addition, teams often assign members to various roles in the production process and may assign minority, older, or female employees to less desirable tasks if the team feels they are not a good "fit" with the more desirable functions in the production process.(24) The majority of the team may even view an employee protected by Title VII as inferior and therefore discount that employee's suggestions, undermining the tenet of the team process. Such forms of prejudice can inhibit the performance of the team and the victimized employee, both of whom become disenchanted with the team process.(25)

   Title VII was enacted when American workplace relations could be classified as a bureaucratic hierarchy, where shop-floor employees were supervised by floor supervisors, who in turn were supervised by middle managers and so on. It is much easier to point to an invidious decision maker under the traditional paradigm of workplace relations since the contours of a supervisory relationship are better defined. With the shift toward more participatory workplace models and the blurring of formal hierarchies, a new question arises: How does a Title VII claim function in a multi-input decision-making context in light of the fact that the Title VII framework was formulated to target either one particular decision maker's bias or a company's discriminatory practices as a whole?(26) Tangible proof of discrimination may very well be unavailable to a member of an autonomous work team, particularly when, for example, the...