The Risks of Applied SSH 1
Another reason to keep the knowledge to yourself
The good news for the SSH-aware in the workplace is that the socio-sexual hierarchy is legally invisible. There is no protected class for behavioral pattern. Title VII covers race, color, religion, sex, and national origin. The ADEA covers age, the ADA covers disability, and the various state statutes add sexual orientation, marital status, and in a few jurisdictions political affiliation. Nowhere in this apparatus is there a shred of protection for the individual who is contrary, oppositional, and convinced of his unrecognized brilliance. An employer may lawfully decline to promote a man because he sulks and refuses to do his job, and no court will hear otherwise.
The bad news is that this legal fact is irrelevant to whether or not your organization gets sued. Litigation risk in American employment is not really a function of what the law permits. It is a function of what a terminated employee believes, what a contingency-fee attorney can construct from your documents, and what a jury will make of vocabulary it has never heard before. The entire problem, therefore, reduces to a single observation: the gap between what your managers actually know and what the corporate record officially states.
The first thing to avoid is the vocabulary itself, in writing, anywhere. Not in performance reviews, not in termination memoranda, not in Slack, not in email, not in the HRIS notes field, and above all not in the deposition of a middle manager who thought he was being clever. Everything an organization writes down is discoverable, and a plaintiff’s attorney does not need the classification to be unlawful. He only needs it to sound sinister when read aloud to twelve people who are unfamiliar with the framework. “Terminated: Excessive Gamma” is not a legally-coherent explanation; it is not a defense; but an exhibit. “Terminated following three documented performance improvement plans, seven written warnings, and two substantiated complaints from colleagues” is a case that never reaches a jury because no competent attorney takes it on contingency.
The classification is a diagnostic instrument for the manager’s own judgment, in the same way a physician’s clinical intuition informs a diagnosis that is nonetheless documented in observable findings. It informs the decision and it is never the actualreason.
The second thing to avoid is allowing the framework to become a proxy for something the law does protect. The most obvious exposure here is one the chapter creates for itself: the SSH describes male behavioral patterns, and a system applied to men but not to women is a facial sex-based classification under Title VII. That is not disparate impact, which requires statistical proof and permits a business-necessity defense; that is direct evidence of differential treatment on the basis of sex, and it is close to unwinnable. The framework must therefore be embedded inside a behavioral competency system that applies to the entire workforce. Hence the need to provide an alternate framework, one that is entirely behavior-based and can be applied to either men or women in a neutral manner.
A woman cannot be a Gamma, by definition. But she can certainly behave in a manner consistent with those behaviors categorized as a Critical Challenger. Note that this further underlines the vital importance of focusing solely on the What and not the Why.
Another potential area of exposure is disparate impact under Griggs v. Duke Power, where a facially neutral selection practice that produces disproportionate outcomes by race, sex, or age becomes actionable regardless of intent. A further problem that most organizations never see coming is the Americans with Disability Act. In Karraker v. Rent-A-Center, the Seventh Circuit held that a personality inventory used for promotion screening constituted a prohibited medical examination because it was capable of revealing a mental impairment. Any classification instrument is necessarily standing very near that line. This is why it is necessary to keep the assessment profiles strongly anchored to observable workplace behavior and job-related conduct, preferably documented over time, and never characterized as anything a psychologist would recognize as clinical.
The final thing to avoid is a surveillance layer, which is where the actual statutory landmines are buried. Automated analysis of meeting behavior, speech patterns, and Slack network structure runs directly into a rapidly proliferating body of AI-employment regulation: New York City’s Local Law 144, which requires an independent bias audit and advance notice for automated employment decision tools; Illinois’s AI Video Interview Act and its more recent amendment to the Human Rights Act governing AI in employment decisions; Colorado’s AI Act and the EU AI Act’s high-risk classification for employment systems, which applies to any operation touching European employees. Voiceprint and faceprint analysis in Illinois triggers BIPA, which carries statutory damages per violation and per person and has produced nine-figure settlements against companies that thought they were merely improving their timeclocks. Recording meetings for behavioral analysis implicates two-party consent statutes in a dozen states.
None of these things are necessary for observing behavioral patterns, and despite the temptations they will pose to the Smart Boys in management, the advantages they might, in theory, offer are dwarfed by the legal risks that come with them. There are much easier, less intrusive, and legally safer ways of identifying who is an Operational Leader and who is a Technical Specialist than using technology to spy on them.