Mirror-Image Mentoring

Employees succeed for a number of reasons; ability, experience and skill all play a part. But these factors don’t always explain the difference between a good employee and a great one. Sometimes the difference is a good mentor.

Mentoring can be a valuable retention tool and a critical element in employee development.

Effective mentoring, however, usually requires the development of a personal relationship between the mentor and the mentee. Good mentors become emotionally committed to their mentees’ success. As a result, their relationship cannot be strictly professional.

But if the modern-day avalanche of harassment and discrimination claims have taught us anything, it is that introducing personal feelings and relationships into the business environment is not free of legal risk.

Given the difficulty most employers have in attracting and retaining good employees, the risks of a formal mentoring program are almost certainly worthwhile. As a result, the question for many employers will not be whether to mentor, but how to mentor.

Here are some observations that may help make the process more legally palatable.

Mentors tend to be drawn toward employees who remind them of themselves—it’s human nature. And while there is nothing inherently evil about being pulled unconsciously toward similarity, it can have an evil effect in a mentoring program.

White men still have disproportionate power in most workplaces, and most white men don’t see themselves when they look into the eyes of a woman of color, for example. When leaders mentor their mirror images, they perpetuate themselves, albeit unconsciously. In an organization run principally by white men, women and minorities lose out.

But unconscious bias is not the only force that limits the mentoring available across gender, racial and other equal employment opportunity (EEO) lines. Conscious bias—in the form of a fear of lawsuits—may also come into play.

As noted previously, mentors and mentees share more than objective information. They share pieces of themselves. Mentors must share their successes and failures; mentees must share their hopes and fears. It is only when both parties share their humanity that successful mentoring can occur.

Tragically, however, sharing humanity on the job is dicey. Power and perspective play an important role in the workplace. By definition, mentors have more power and prestige than their proteges. In such relationships, a mentor’s personal attention may be misperceived as sexual attraction. This, in fact, has happened in some organizations.

The easy way for male leaders to avoid this risk is simply to avoid mentoring women. Unfortunately, this also happens. Some men are so afraid of being misunderstood that they essentially discriminate against women to avoid the harassment claims these employees might bring. Because there are still more men than women at the top, this works to the disadvantage of women—and the company, which could benefit from their advancement and input.

Fear of harassment is not the only factor that impedes mentoring; fear of engaging in conversations that deal with an employee’s race, religion or other EEO factors also plays a part.

For example, a woman of color clearly faces different obstacles in the workplace than a white man. For a white man to effectively mentor a woman of color, both must be able to discuss these obstacles. These discussions can be wonderfully productive and both the mentor and the mentee can learn from each other—but only as long as the relationship works.

If the relationship sours, these same conversations can be cast in an unflattering light. For example, in one actual situation, a mentor and mentee discussed their views on assertiveness in the workplace. The female mentee claimed that it is more socially acceptable for a man to be aggressive in the workplace than it is for a woman. The mentor agreed that this, regrettably, was true—not that it should be true.

Later on, when their relationship took a turn for the worse, the employee claimed that her mentor—by agreeing with her—tried to discourage her from being assertive.

Any mentoring relationship runs a similar risk. And the results may be extremely damaging if the conversation involves factors that may be covered by federal and state employment laws, such as plans to have a baby, the impact of religious beliefs on one’s career, etc.

Many workplace laws—such as the Americans with Disabilities Act, Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964—encourage us to embrace difference. Still others, such as the Family and Medical Leave Act and its state equivalents, encourage the balance of work and family life.

Yet honest conversations about human differences or family plans are legally risky. Again, one way to avoid these risks is to avoid difference. Conversations on gender and race are less likely to be an issue if a white male mentors another white male.

Because of these unconscious motivators and conscious fears, de facto mentoring often is discriminatory; when it favors white males, other employees may have legitimate cause for pursuing legal action.

To encourage mentoring across racial, ethnic, gender and other EEO lines, companies should establish formal mentoring programs. These programs should be in addition to, not in lieu of, the informal mentoring that will occur naturally.

In general, mentors should not be matched with mentees solely because they share certain similarities. While factors such as gender, race or national origin may affect some of the experiences and perspectives relevant to mentoring, it would be discriminatorily stereotypic to assume that two employees share common values or goals simply because they share the same traits. There is as much diversity among individuals within EEO groups as there is among the groups themselves.

Further, there are obvious benefits to being mentored by someone prominent in the organization. Where the top is predominantly white and male, EEO matching will favor white male subordinates and work to the disadvantage of women and minorities.

Moreover, mentoring across racial, ethnic, gender and other lines sensitizes senior managers to the ways that these factors play a role in the workplace, albeit often unconsciously. With greater awareness, mentors can strive for greater inclusion. By contrast, mirror-image mentoring limits how much mentors can learn about the role EEO factors play in the workplace, thereby limiting their growth in this area.

While it is recommended that organizations avoid EEO matching, mentees should have some say in the matching process. In particular, many organizations allow mentees to define what they seek in a mentor.

In this process, a mentee might mention EEO factors, such as race, gender or age. In such cases, employers generally should honor this request, where feasible. Accommodating a mentee’s stated wishes differs from assuming what those wishes will be.

Of course, there are limits to accommodating a mentee’s stated preference. Mentoring programs should support appreciation for diversity without condoning blatant discrimination. This standard is admittedly easier to articulate than to apply. But common sense dictates that there is a fundamental difference between an employee of color asking for a mentor of color and a white employee asking not to have a mentor of color.

Some individuals are born mentors. For others, it is an acquired skill. Either way, all mentors benefit from training that is focused on interpersonal skills that are critical to the mentoring relationship. For example, the best mentors know they cannot shape their mentees in their own image. To the contrary, gifted mentors try to cultivate a mentee’s own gifts, no matter how different they may be from their own.

Training also should focus on the regrettable—but real—conflicts between open dialogue and avoidance of litigation. If mentors are aware of these conflicts, discussed in more detail below, the risks they take are more likely to be reasonable.

Both mentors and mentees should be given guidelines before the mentoring relationship begins. The guidelines should discuss whether and how to deal with EEO and family issues.

Mentees should be encouraged to discuss these issues—if they are relevant to career development. It should be made clear that it is up to mentees to raise these kinds of issues. A mentor should not discuss race, gender or family plans unless the mentee first opens the door.

When employees do broach such subjects, mentors may wish to document this fact. If a judge or jury is called on to evaluate the conversations between mentors and mentees, the context of these conversations—and the fact that the employee initiated them—will be relevant. When the context for these conversations is fixed by written mentor/mentee guidelines, employers will have a leg up.

Note, however, that asking mentors to document their conversations may render the mentor/mentee relationship a bit more formal and may reduce its effectiveness. No one wants to portray mentees as black widow spiders, waiting to trap their prey.

You also should recognize that no approach completely insulates your company from litigation. There is still some legal risk to engaging in personal conversations. But there also is a business risk in not having these kinds of discussions. In today’s increasingly diverse labor market, it is in an employer’s self-interest to increase diversity at the top. Employers that avoid discussions related to diversity limit their ability to tap into the talent in underrepresented communities.

A mentoring relationship is a safe place for mentees to share their frustrations. Some of these frustrations may involve the way mentees are being treated by managers and other employees. When such treatment involves legally protected factors—such as sex, religion, age or others—these conversations take on potentially serious legal risk.

Management has a legal responsibility to take corrective measures whenever it becomes aware of the existence of harassment or discrimination. As a result, mentors who are managers are placed in a precarious situation if their mentees discuss behavior that may qualify as harassment or discrimination.

In such situations, if the mentor does nothing, the employer may be unable to avoid liability and may actually increase its exposure to damages.

If the mentor believes the employee did not experience illegal harassment or discrimination and discourages the employee from filing a complaint, the employee can later claim that management told him or her not to file a claim.

If the mentor ignores the mentee’s wish for confidentiality and either notifies HR or conducts his or her own investigation, the mentee may feel betrayed and the relationship may be crippled beyond repair.

There is no easy answer to this question; it is not a question of risk avoidance but of risk selection.

One way to reduce the risk is to clarify the relationship between the company’s formal complaint procedure and its mentoring relationships. In particular, mentees should be told that if they believe they have been harassed or discriminated against, they should file a formal complaint procedure as opposed to discussing it with their mentors.

In addition, mentors should encourage mentees who raise an apparently serious legal issue to use the formal complaint procedure. If the mentee ignores the mentor’s admonition, then the mentor may have to report the complaint himself/herself.

This approach is admittedly a compromise that neither precludes litigation nor honors fully the wishes of the mentee. But it is a reasonable balance of two important but conflicting considerations.

Another suggestion is to explain clearly in the mentor/mentee guidelines that managers may be required by law to report any instances of potential harassment or discrimination. If mentees know what to expect before raising such issues with mentors, it should help to avoid misunderstandings.

However, such a rule will likely have the chilling effect of turning employees away from the people who provide them with guidance at a time when they most need it. When mentees are unsure if they have experienced illegal harassment or discrimination, they may want to check their perceptions with a trusted confidant. However, as mentioned previously, the courts could view mentors who give their opinions on such matters as speaking on behalf of the company and discouraging employees from seeking legal redress.

To protect themselves, employers may wish to establish written, signed agreements by which mentees acknowledge that any discussions with their mentors regarding EEO issues do not constitute notice to the organization. The agreement could further state that if mentees have any concerns they want investigated and/or remedied, they will use the company’s formal complaint procedure.

Such an agreement, although not ironclad, would nonetheless strengthen the employer’s position if the mentee later claimed that the company failed to remedy concerns he or she shared with a mentor.

However, there are countervailing business considerations. The more legalistic the mentoring relationship, the less likely that it will be successful. Accordingly, if an employer wants to achieve fully the business potential of mentoring, it may need to take some risk on the legal side.

Mentoring relationships should be evaluated periodically to make sure they are working. For example, HR professionals may want to speak with each party on a semi-annual basis.

If the relationship is not working, HR professionals can detect and correct the problems or assign a new mentor. Either way, you will want to know as soon as possible if a mentoring relationship starts going astray.

Fixing or replacing a mentoring relationship before problems occur can ensure that both mentor and mentee enjoy the benefits of mentoring. Doing so also has the additional benefit of avoiding potential legal complications. As mentioned previously, mentoring is a personal relationship; when that relationship fares poorly, miscommunication and misunderstanding, as well as lawsuits, can arise.

(Note: Forcing reluctant individuals to serve as mentors increases the likelihood that the mentoring relationship will be unproductive, or even legally damaging. In my experience, the only thing worse than no mentor is a bad mentor.)

If the relationship is working well, document this fact. If mentees later claim that they were treated illegally during the same period of time in which they previously acknowledged that things were going well, this inconsistency will undermine their credibility.

Bear in mind, however, that such documentation is limited. An employee who states on Aug. 1 that he has a good relationship with his mentor may have a hard time claiming he was harassed on July 20, but he can still claim he was harassed on Aug. 2.

Individuals who have mentors are more likely to be successful in overcoming obstacles and, therefore, more productive. They also are more likely to be loyal and less likely to be enticed by the entreaties of a competitor.

I believe strongly in the power of mentoring. I have seen it work, and I have been one of its lucky beneficiaries.

I dedicate this article to my mentor in the area of human resource management, Jim Redeker. As a mentor, now partner—and always a friend—Jim has generously shared with me not only his professional gifts, but also his personal humanity. He has played a key role in much of my professional achievement. For this and much more, I am extremely grateful. Thank you, Jim.

Author’s Note: This article should not be construed as legal advice or as pertaining to specific factual situations.