Intentional Discrimination and Disparate Treatment

According to the Department of Justice (DOJ), Civil Rights Division, a claim of intentional discrimination is one that alleges that similarly situated persons (e.g., coworkers in the same department, employees working under the same supervisor, employees—as a whole, etc.) are treated differently because of their race, color, or national origin. FYI: This information was written in relation to grant applications, but it is very appropriate in explaining discrimination anywhere--such as the workplace.

In order to prove intentional discrimination, an employee must show that "a challenged action was motivated by an intent to discriminate." Elston, supra, 997 F.2d at 1406. This requires a showing that the decision-maker (e.g., supervisor, manager, executive, etc.) was not only aware of the complainant's race, color, or national origin, but that the decion-maker acted, at least in part, because of the complainant's race, color, or national origin. However, the record need not contain evidence of "bad faith, ill will or any evil motive on the part of the [employer]." Elston, 997 F.2d at 1406 (quoting Williams v. City of Dothan, Alabama, 745 F.2d 1406, 1414 (11th Cir. 1984)).

Evidence of discriminatory intent may be direct [e.g., “You’re not getting this job because we don’t promote ni**ers here!”] or circumstantial [e.g., false allegations are used to deny a Black employee a promotion] and may be found in various sources, including statements by decision-makers [e.g., oral and written], the historical background of the events in issue [past patterns on executing similar actions, work history, etc.], the sequence of events leading to the decision in issue [How did everything happen?], a departure from standard procedure (e.g., failure to consider factors normally considered), legislative or administrative history (e.g., minutes of meetings), a past history of discriminatory or segregated conduct [as described in yesterday’s post on checking into prior bad acts], and evidence of a substantial disparate impact on a protected group [a significant change in the status of your employment, impact on your career or work environment, etc.]. See Arlington Heights v. Metro. Housing Redevelopment Corp., 429 U.S. 252 at 266-68 (1977) (evaluation of intentional discrimination claim under the Fourteenth Amendment); Elston, supra, 997 F.2d at 1406.

Direct proof of discriminatory motive is often unavailable. However, if the record contains sufficient evidence to establish a case of discrimination, the investigating agency must then determine if the employer can articulate a legitimate, nondiscriminatory reason for the challenged action. [Many employers can offer a pretext to hide their true discriminatory motives. This usually involves making false allegations against the complaining employee, creating manufactured/fabricated documentation against an employee, providing false eye witness statements of events, etc.]

Similar principles may be used to analyze claims that an employer has engaged in a "pattern or practice" of unlawful discrimination. Such claims may be proven by a showing of "more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts." See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977). The evidence must establish that a pattern of discrimination based on race, color, or national origin was the employer's "standard operating procedure the regular rather than the unusual practice." Id. Once the existence of such a discriminatory pattern has been proven, it may be presumed that every disadvantaged member of the protected class was a victim of the discriminatory policy, unless the employer can show that its action was not based on its discriminatory policy. Id. at 362.

So, if you’re facing rampant discrimination on your job, go for showing patterns of discriminatory behavior by your employer that shows the history of illegal conduct. Also, document everything and be ready to respond to the pretext/lies offered by your employer to justify any discriminatory actions that have occurred at work. Finally, be sure to point out how similarly situated employees (other coworkers with the same job classification, title, salary, etc.) were treated differently—and more favorably—than you were treated. Be sure to show how those differences impacted your career.

For instance, that you were denied training opportunities or a promotion or that you were severely reprimanded, while others were not. Don't forget that being denied the building blocks for a promotion is just as bad as being denied the promotion itself. So, lack of training opportunities, etc. can help prove discriminatory behavior and disparate treatment.

Source: Department of Justice, http://www.usdoj.gov/crt/grants_statutes/legalman.html#Intentional

Investigate the Perpetrator of Discrimination, Harassment, etc.

Start a similar incidences log! If you are being harassed or discriminated against at work, you should do your best to find out if your harasser or tormentor has had similar encounters with other employees or if there have been other informal or formal complaints lodged against this person. If so, you should create a log that you can use to track this similar past behavior.

If a pattern of negative behavior exists, you should use this log to demonstrate that this pattern of prior bad acts have not been adequately addressed by your employer. Your employer is legally responsible to have preventative measures in place that discourage illegal misconduct at work. Similarly, your employer is legally responsible to utilize corrective measures to put a stop to anyone engaging in illegal misconduct at work.

For instance, if a manager has been on the receiving end of several complaints from minority employees, your company should conduct a thorough investigation into this manager. While the investigation is being conducted, the manager should be subjected to heightened scrutiny to make sure he/she doesn’t attempt to retaliate against his/her subordinates. And, the manager could be removed—at least temporarily—from management responsibility/maintaining a position of authority over the complaining subordinates.

If the manager is found guilty of engaging in illegal misconduct, additional corrective actions could include firing or demoting the manager, written warnings and probation, participation in diversity and/or sensitivity training classes, salary cuts, etc.

But, the first step in fighting back is finding out what your “enemy” has been up to. If your employer has received numerous complaints from a variety of minority employees about racially-based harassment by a particular supervisor, you should definitely make note of this pattern in a log. Have conversations with anyone who has had similar experiences with the individual, even if they never filed a complaint. Find out as much specific information as you can and highlight all of the similarities with your case. Be sure to note what action, if any, was taken by your employer based on a problem pattern of behavior.

This will also have an impact on your employer’s liability in your case--especially if the past bad acts go back for a significant period of time. This would show that your employer knew it had a long-term problem with this employee, but did nothing. The inaction of your employer would demonstrate a tolerance for illegal misconduct and a lack of seriousness regarding maintaining a workplace free of discrimination, harassment, etc.

LEGAL BRIEFS: Workplace Discrimination and the Word "Boy"

This post serves as an FYI that the offensive use of the word “boy”—in reference to an adult Black male—can be used to help build a case alleging race discrimination, harassment, etc. in the workplace.

The U.S. Supreme Court became involved in a 2006 discrimination lawsuit vs. Tyson's Food, Inc. in which 2 Black men said they were denied promotions by a white manager, who referred to them as “boys.” The Supreme Court unanimously overturned an appeals court decision that said the term "boy" alone was not evidence of workplace discrimination. The Supreme Court also ordered the lower court to reconsider the matter.

The Supreme Court stepped in because a jury awarded Anthony Ash and John Hithon $1.75 million apiece in damages, but a judge had thrown out the decision. The two Black complainants had 15 years and 13 years of experience, with Tyson’s Food, respectively. BUT, a white man, with less than 2 years of experience, got a management job they sought at an Alabama plant.

Eric Schnapper, a law professor at the University of Washington who represented the men, told the justices that the term "boy" is offensive and had been considered a slur by other courts. "This form of verbal abuse has its origins in the slave era," he wrote in the appeal of the decision.

In sending the case back to the 11th U.S. Circuit Court of Appeals in Atlanta, the Supreme Court released an unsigned opinion. Supreme Court Justice Alito wrote: "Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign."

Source: http://www.abqtrib.com/news/2006/Feb/20/supreme-court-renews-racial-discrimination-case/

Employment Discrimination by a Federal Contractor or Subcontractor

A presidential order (Executive Order 11,246) forbids employment discrimination on the basis of race, color, national origin, sex, or religion by companies that hold contracts or subcontracts with the federal government and by firms working on construction projects that receive federal funds.

In addition, the Rehabilitation Act of 1973, as amended, forbids employment discrimination on the basis of disability by companies that hold contracts or subcontracts with the federal government. Employers holding contracts or subcontracts with the federal government are also barred from discriminating against qualified disabled veterans and veterans of the Vietnam era.

If you think an employer who has discriminated against you holds a contract with a federal agency, contact the Office of Federal Contract Compliance Programs (OFCCP), Department of Labor listed below, or one of the OFCCP regional offices.

U.S. Department of Labor
Employment Standards Administration
Office of Federal Contract Compliance Programs
200 Constitution Avenue, NW, Room C3310
Washington, DC 20210
1-866-4-USA-DOL
Fax: (877) 889-5627
www.dol.gov

Complaints must be filed within 180 days of the date of the alleged discrimination, unless an OFCCP director extends it for a good reason. If you are disabled or a Vietnam era veteran, you must file within 300 days, unless filing is extended for good cause. If your complaint is an individual complaint of discrimination against an employer, it will probably be referred to EEOC. If it is one of systemic discrimination or if there are several complaints, or if many other persons are also affected by a pattern and practice of discrimination, the Labor Department will generally take the lead in processing the complaint.

If you are a federal employee, or an applicant for federal employment, and think you have been discriminated against, contact the equal employment director of the agency involved within 45 days of the alleged discrimination. That person will provide information about filing a complaint. If the agency rules against you, you should ask the equal employment opportunity director what appeal rights you have and what the time limits are for filing an appeal.

Source: U.S. Commission on Civil Rights, Getting Uncle Sam to Enforce Your Civil Rights, http://www.usccr.gov/filing/flndx.htm

Who's Really Being "Hostile" In the Workplace?

Scenario #1: A white mid-level worker approaches a Black mid-level worker and asks the Black mid-level worker to perform administrative tasks for him/her. The white mid-level worker is not the manager or supervisor of the Black mid-level worker and isn’t in any position of authority over the Black worker. The white mid-level worker hasn’t even approached the Black mid-level worker’s actual supervisor for permission to ask them to do work of any level—let alone administrative work! The Black mid-level worker informs the white mid-level worker, “I’m sorry, but I’m not an administrative assistant. I don’t perform the tasks you need assistance with. Even if I could provide you with assistance, it wouldn’t be fiscally responsible for someone making my salary to be performing that type of work. Perhaps you should speak to the boss about getting some help with that.” The White mid-level worker leaves the encounter and reports to the Black employee’s White supervisor that the Black employee is rude, defensive, difficult to work with, and is not a team player.

Scenario #2: A white employee approaches a Black employee and calls the Black employee by the wrong name. Both employees have worked at the company for over a year and they’ve previously worked on the same projects. The Black worker tells the white worker, “I’m not sure what the problem is. But, you seem to have a problem remembering my name—even though we’ve been introduced several times and have worked together before. My name is [NAME], not [WRONG NAME]. Please call me by my name.” The White worker leaves the encounter and reports to the Black employee’s White supervisor that the Black employee is rude, intimidating, and unapproachable.

Scenario #3: A white worker approaches a Black employee that prepares budgets. Per guidelines, all budgets that are being sent to clients must be submitted to the Black employee 2 days in advance. These procedures were recommended and approved by the Director of the department. Yet, this particular White worker chronically brings budgets to the Black employee and demands to receive the budget back in 2-4 hours. The White employee says, “But, I already promised the client they would have the budget emailed to them by the time they came back from lunch.” The Black employee says, “You should have asked me—first—if it was possible to get a budget to your client before you guaranteed the client they would receive an official budget from us. I’m working on a priority right now on a multi-million dollar contract for a major client. I couldn’t possibly get you a budget before COB tomorrow, at the earliest. I’m sorry, but I’ve explained the procedures to you before. You really have to carefully manage client expectations.” The White worker leaves the encounter and reports to the Black employee’s White supervisor that the Black worker is rude, unhelpful, isn’t a team player, is unconcerned with serving the best interests of the client, can’t prioritize his/her work, and that the Black employee tried to tell them [the White person] how to do their job.

In all 3 scenarios, the Black workers are not asked about their encounters with the white workers. Yet, the Black employees are called into their supervisors’ offices and are soundly criticized for allegedly having a negative attitude, not being team/client oriented, and for having “communication issues.”

The Black workers try to explain the encounters and are told by their supervisors, “You’re being defensive. I’m just trying to give you constructive criticism.” Each Black worker may say, “I’m not being defensive. Someone made accusations that aren’t true. I’m just trying to share my perspective on what happened.” Each White manager says something about the Black employee being sensitive and informs the Black worker that the White employee has already explained what happened. The supervisors instruct the Black employees to be “more helpful in the future.”

At no point do the White supervisors say that:

--It was improper for a coworker to ask a mid-level manager to perform work that was several job levels below the Black worker’s job function (Scenario 1);

--It is offensive to be repeatedly called by the wrong name by someone who is quite familiar with you and who doesn’t have a problem remembering anyone else’s name (Scenario 2); or

--It is improper for an employee to routinely disregard established protocol and procedures for requesting work from other staff through procedures that were recommended and approved by the head of the department;

In all 3 scenarios, the white employees thought it was reasonable to criticize the Black workers, when the white workers are the ones who should own the outcomes of these scenarios. In all 3 scenarios, the white employees made wild conclusions, complete with race-based labels, and reported their Black coworkers. In all 3 scenarios, these incidents were cited on the Black employee’s performance review as examples of areas for improvement. And, we wonder why America’s workplaces seem filled with one race-based issue after another? Really?

These 3 scenarios represent just how easy it is for Black workers to receive false labels about their attitudes and job performance. At issue, is that Black workers are often forced to work with White employees that choose to be unaccountable for their own behaviors and job performance. For instance, a Black worker may be called unhelpful, difficult to work with, rude or mean if they refuse to render assistance to a same-level white coworker that sat on an assignment until the last minute or simply forgot the work was on their desk until the day the assignment was due.

A major problem in the workplace is that, when dealing with Black workers, some whites feel they can totally disregard social norms and standard business etiquette/protocol, can ignore procedures and policies, and feel they can dictate the work day of their Black coworkers—at that very minute and without authority to do so. I can’t tell you how many Black workers complain about feeling they have 7 supervisors at work, when speaking about the number of white coworkers they encounter that behave as if they have authority over the Black person and can tell them to stop and start assignments at the drop of dime.

Unfortunately, for a Black employee to tell these sorts of White workers that they have crossed a line, that you can’t render assistance to them (for a legitimate reason), or to tell these people that you have a name—and only one name that you respond to, can cause serious problems for Blacks on the job. These types of White people only want to hear one word from their Black coworkers and that word is “yes.” Yes, I’ll drop everything. Yes, you don’t have to call me by my name. Yes, I’ll do junior level work for you. Yes, yes, yes…

If some White workers held the same mirrors on themselves that they often flash on their Black coworkers, they would be shocked to see how they have falsely portrayed a fellow team member, how they have created issues that can haunt a coworker, how they have been unfair or premature with their judgments or how they having been working with double-standards. Or, if there is true and thoughtfully racist intent, they could be happy with their achievements for the day! In either case, far too many Black workers have to spend too many portions of the day fighting wild accusations and fighting for the basic respect White workers expect and demand. Think about it…

If a White worker is the one who is refusing to call a Black worker by their rightful name, is trying to force them to do junior level work, is trying to force them to shuffle their workday—without authority to do so…who’s really being hostile, rude, and difficult to work with? And, who isn’t a team player?

Questions Investigators Will Ask About Race-Based Complaints

Here's a sampling of some the questions you will have to answer, during an internal or external investigation. PLEASE NOTE: If your company is trying to cover-up what really happened to you, HR will likely have far fewer questions for you. An external investigation should be extremely detailed and thorough. Now for the questions:

--Who is bullying, intimidating, discriminating or retaliating against you?

--What specifically happened?

--What comments were made?

--What actions were taken?

--Was this a one-time incident?

--What day and time did this occur?

-- If not, how many times did this happen? (Describe each situation)

--Is it still continuing? If so, what was the most recent incident?

--What was the impact? (State the professional and personal consequences that occurred as a result of the actions taken against you)

Think about tangible employment actions, which are any actions taken by employers or their agents that impact hiring, firing, promotions, transfers, disability etc.

--Describe how certain actions led to you being denied a promotion or terminated from your job, etc.

--Are you now being subjected to an offensive work environment marked by intimidation, harassment, bullying, disparate/unequal treatment, etc.? If so, describe these conditions.

--How did you respond to the situation?

--Who did you speak to/report the incident to? List dates, times, and responses.

--What specifically did you tell them? Describe fully—this will help you keep track of what authority figures knew and when they knew it.

--Did you correspond with your superiors or Human Resources in writing? If so, list names, dates of correspondence, and responses. (Note: If you participate in face-to-face meetings, you should always follow-up the meetings with a quick email in order to create an undeniable record of what transpired.)

--Did you address the individual who is the perpetrator of this incident? What was their response? Did you come to a solution?

--Who are your witnesses? List their names, titles, and the dates of incidences they observed.

--Who else has been harassed, etc. by this person? List their names and any information that is available regarding their harassment, including dates or the approximate time frame of the mistreatment and illegal activities.

--Does the perpetrator have any outstanding complaints against him/her? List specifics, if available.

--How would you like to resolve this issue?

--What would you like to happen? (Your dream scenario)

--What is the minimum that you would find as an acceptable solution to resolve the problem? For instance, you may only want an apology from the perpetrator or you may want an apology, restitution of your salary, and the perpetrator to be placed in training that is appropriate for the offense they committed (e.g., diversity training).

Don't Be Afraid to Challenge Authority or Jump the Chain-of-Command!

I’m about to race out to work, so I’m going to cut right to the chase! There are some White workers, supervisors, etc. that don’t like ANY Black coworker appearing to question their authority. Point blank. I don’t know if it’s a carry over from slavery or what. There are some Whites who will take the words of a thoughtful Black person as a threat to their real or perceived power, as a blatant attack by the Black person or as insubordination. Ah, insubordination—the backbone of fabricated complaints against Blacks throughout the country. It’s the NWA (Ni**ers with an attitude) defense.

A few years ago, a White coworker misread an email I sent and stormed into my office accusing me of circumventing her authority. She was sweaty and red-faced and DEAD WRONG. But, she carried on and on accusing me of embarrassing her and challenging her authority, etc. I let her ramble on, looking at her like the idiot she was. Then, I asked her if she read the email from the bottom/last email to the top. She had not. I asked her to go back to her office to do so. But, before she left, I let her know that she just wasn’t that important to me. Yes, if she wanted to engage in a conversation about authority she didn’t have (she wasn’t a manager or even my manager), then we had to get real. I told her point blank that she was not that important to me and that I did not work on Falcon Crest or on some other nighttime soap opera. I asked her not to project her behavior onto me. I told her that I did not conduct myself in that manner.

She went back and read the email and came back to my office—red-faced—to apologize. I told her, “It’s just not that serious. I don’t have time for games like that.” Again, she wasn’t even a manager and she wasn’t my manager. Yet, she saw something in the email that falsely led her to believe that I was trying to do her job or was questioning her or whatever her dumb mind came up with. And, she became enraged.

I think she was upset by who she perceived to be challenging her, more than by the perceived challenged. She had 4 Master's degrees, which she always bragged about. And, she dind't appreciate this younger Black woman, who was junior to her, actually having the knowledge to participate effectively in an email exchange with members of the contracts office. She didn't know who I thought I was. Yes, she might not have liked anyone challenging her. But, my race escalated her emotional response. How do I know? My feelings were confirmed, when she later admitted to being raised by Mormons that disliked Black people! So, I know race was an issue in her upbringing. And, I was a member of the race that was disparaged in her household. I can't make this stuff up, folks!

So, imagine how some White managers will respond to Blacks that are legitimately questioning their authority, language, policies, actions, etc. That brings us to requesting an investigation of a racist supervisor, manager, etc.

If you are requesting an investigation of a supervisor or manager or anyone in a true position of authority over you, you should request the investigation through Human Resources. Period! Don’t go to that person to give them a heads up out of respect, fear, etc.

Legally, you have a right to skip the chain-of-command, if the perpetrator is part of your chain-of-command and has violated your workplace rights. Therefore, I would recommend that you bypass your supervisor or manager, as they are the harassing party in your complaint. Human Resources will notify your supervisor or manger of the investigation, which is the appropriate way for the process to work.

If you are filing a complaint against your supervisor, be sure to present an evidence list and a witness list. Remember, your employer is more likely to immediately believe a supervisor over a worker. So, the burden of proof is on you! You have to show that misconduct has taken place. Your evidence list should contain a quick summary of documents, charts, instructions, nasty/offensive emails, etc. that can help prove your case.

The witness list should contain the name, title, and other information related to anyone who witnessed harassment, bullying, etc. By submitting evidence, instead of just making accusations, you will help your company take your complaint and request for an investigation more seriously because your evidence will demonstrate that you can prove the allegations are true. Don’t forget…the scariest kind of proof, for any company, is evidence that is explosive (e.g., written documentation, such as emails) and evidence that can be presented by a witness.

Having witnesses correlates to having someone who will be able to provide testimony, on your behalf, regarding the incident. This person can provide testimony not just for an in-house investigation, but for a legal trial, if things get to that point.

When submitting evidence, it’s important to be strategic. Don’t ever give anyone in Human Resources and/or corporate management everything you have to prove your case! You may need to hit your supervisor or employer hard—at a later time. Don’t tip your hand too soon. Present compelling evidence, but always hold out. This will stop your employer from being able to create false documentation, administrative forms, etc. that appear to counter your legitimate evidence.

Don’t sell your employer short. If the company is desperate to disprove a case or thinks it is in legal jeopardy based on employee claims of discrimination, etc., your employer may engage in manipulating timesheets, creating fraudulent documentation of fabricated performance deficiencies, etc. Don’t help them make up their lies! Hold out some information and use it to box them into a corner, to prove future lies, etc.

Tangible Employment Actions Aren't Connected to Maintaining Salary or Benefits!

Workplace harassment is defined by law as behavior that, while offensive, is extremely serious because it changes the conditions of your employment or creates a hostile work environment. In regard to the law, for something to change the conditions of your employment, the “something” must be a tangible employment action. A tangible employment action is any significant change in your employment status. It’s an action that has a negative impact on your work environment, job function or career.

A tangible employment action is not simply someone making a threat or giving you lip service. So, if someone’s telling you they’re going to meet you in the parking lot, next to your car, at 3 o’clock—that’s just not going to cut it. Now, if they show up and attack you, then that would be assault. A tangible employment would be:

--a demotion;
--a suspension;
--being stripped of your staff;
--being denied a promotion with no basis;
--receiving a pay cut under false pretenses;
--being transferred to a menial job;
--being transferred to a remote location or being transferred to a hard to reach location (making it difficult to get to and from work) or being isolated from other staff; or
--being subjected to a hostile work environment that is so offensive and persistent that you can’t perform your job.

Some employers try to get all Slick Willie with these actions. So, sometimes they won’t take away an employee’s salary or benefits. Then, they’ll argue that there isn’t a really significant change in job status/no significant penalty. But, that argument doesn’t fly because tangible employment actions aren’t considered based on whether or not an employee retains the same salary or benefits. So, if there is a significant and negative change to your job—even with the retention of pay and benefits—you can argue that you were hit with a tangible employment action.

In my case, I was denied a promotion without basis—except racism and retaliation. I kept my salary and benefits. I filed a complaint with the Office of Human Rights (OHR). My employer responded to OHR that they didn’t change my salary, title, etc. and used that to try to prove that everything was legitimate that happened to me. They didn’t know that I knew they were full of sh*t and that I could argue such based on the fact that I knew that tangible employment actions are not linked to retaining salary, benefits, etc.!

Anyway, according to the Equal Employment Opportunity Commission, tangible employment actions:

--occur when a supervisor uses the official powers of the company to take action(s) against an employee;
--are official acts of the company;
--are often documented in company records;
--often have the official approval of the company and its internal processes;
--often cause financial harm; and
--generally, can only be caused by a supervisor or other agent of your company, since a coworker just doesn’t have the power to bring about a significant, negative change in another employee’s employment status or job responsibilities.

So, if you feel you are the wrongful victim of a tangible employment action, PREPARE TO FIGHT BACK!

Tip #1: Maintain a record of any memos or emails you receive that are meant to justify the tangible employment action (e.g., corrective action notice, written warnings, etc.);

Tip #2: Be able to produce your salary history, by maintaining a record of your income with your employer. Show any decrease in pay. Maintain a record of any memos or emails that are meant to justify a salary decrease.

Tip #3: Check the personnel manual! Before such extremes actions were taken against you, check to see if your employer is following its own policies and procedures. If not, point out any violations that may exist.

Tip #4: Find out about past history! Have other employees engaged in the same behavior that you were accused of engaging in or of having the same performance deficiencies that you were accused of having? If so, what happened to those people? Does it differ from actions taken against you? If so, and the consequences for other employees was nonexistent or very minor, you may be able to claim disparate and unequal treatment by your employer.

Tip #5: Keep pushing your side of the story! Don’t let HR or your employer ignore your version of the facts. Document everything, including every relevant conversation you’ve had with HR staff and authorities at your job. List any contradictions in what they say about policies and justifications for the actions. Provide witness statements to support you (e.g., character references or eye witness accounts of events, etc.) and request that HR check with these individuals to confirm your story.

Tip #6: File a grievance or request an internal investigation! Don’t let tangible employment actions slide. If you believe a manager is acting on racist whims by stripping you of your staff or cutting your pay, ask for HR to investigate the matter! It’s your career, fight for it! If the company doesn’t find in your favor, appeal the decision!

Tip #7: Seek legal counsel! Don’t be afraid to consult an attorney in response to a fraudulent tangible employment action.

Tip #8: Remember that your company will usually do everything in its powers to make it appear that the tangible employment action was warranted. This will be their justification for why no violations of Federal law occurred. It is your job to show that the arguments presented by your employer are nothing but pretexts used to hide their true motivations, which might be harassment, discrimination or retaliation. By keeping a log of events that transpired, keeping hard copies of memos, emails, and other documentation that supports your case, and by tracking comments made and actions taken by your supervisor, Human Resources, and corporate management, you can begin to demonstrate that their defense is dishonest and solely meant to cover up the violation of your employee rights. Focus on why their defense is untruthful! That is the burden placed on complainants!

New Links!

Check out 3 new workplace resources in the Links section. The links are for The Americans with Disabilities Act, The Age Discrimination in Employment Act, and The Equal Pay Act.

LEGAL BRIEFS: Iron Workers to Receive $800k payout!

According to the EEOC, the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers Local 580 in Manhattan will pay $800,000 to 45 Black and Hispanic members. The penalty is for refusing to refer minority journeymen to jobs between September 1992 and August 2004. Payments to the members will range from $2,000 to $47,000.

Being "Fair" and/or "Forgiving" Are Incompatible With Fighting On-The-Job Racism!

I don’t know what it is about some of us Black folks, but we have this amazing ability to forgive people that have done absolutely horrible things to us. I don’t just mean in recent history. I am also talking about historically. I am often still amazed at how Blacks—today—have been able to find a way to get along with the descendants of their enslavers—many of whom still share abhorrently racist views and attitudes about the capacity and basic humanity of our race. But, many Blacks still often manage to cope and overcome the institution and legacy of slavery and racism in America.

Perhaps at the root of our ability to be a fair and to forgive is that our people have gone through such extreme suffering on the plantations of America. Maybe that extreme suffering has translated into an almost hyper-compassion for anyone that we perceive as also suffering. Perhaps our ability to be fair and to forgive egregious horrors is due to experience with retaliation from the White majority. Post-slavery retaliation against Blacks, for fighting for and demanding basic human/civil rights still occurs today. It just happens more covertly.

Regardless of the reason for the Black ability be fair and to forgive, fairness and can ultimately lead to our continued battles against racism in the workplace. Sometimes, Blacks are too willing to let someone take back a racial slur or repeated racial slurs that happen on the job. Sometimes, Blacks are too willing to walk away from someone making racist comments and promoting stereotyping on the job. Sometimes, Blacks are too willing to ignore the actions of a racist coworker or supervisor—even when those actions are destroying our careers, promotion opportunities, and salary increases.

Here’s a scenario: A White, female worker makes a very racist comment to a Black female coworker about Black culture. This isn’t the first time the White worker has made this kind of negative comment. Well, the Black worker has finally had enough and confronts the White worker. The Black worker says she’s not going to tolerate the remarks anymore and that she’s going to management. So, the White worker begins crying and says that she didn’t realize the Black worker took the comments “like that.” She stresses that she was only joking and, when she wasn’t joking, she was truly just trying to get a better understanding of Black people. She swears that she’ll never make that kind of remark again. And…

Lo and behold…

The Black worker starts to soften. After all, the White worker is crying and she looks sincere enough. She seems truly apologetic. So, the Black worker lets things slide. She says she won’t go to management about the issue. She decides that she’s going to be fair. As a matter of fact, she’s going to be a true Christian. She’s going to give the White worker another chance. That would be fair. And…

Lo and behold…

The same white worker makes a similar comment to the Black woman—2 months later. It took some time. But, she went right back to old habits and her true nature.

Many Blacks like to pat ourselves on the backs and praise ourselves for being fair and for overlooking the negative behavior of the racists we work with. We’ll say, “Girl, I just ignore her. I don’t pay her any mind. That’s how she is.”

Some Black workers can be racially attacked on the job and then sit there and worry about complaining about the White worker because they don’t want to see anyone lose their job/be fired. Because far too many Black workers are often too busy thinking about being fair and extending an olive branch to someone to worry about their own career. I’ve heard people say, “I’d feel guilty, if she got fired!” Are you kidding me? If someone’s behavior warrants termination, let them have at it! Let them get the result they worked so hard for. Who are you to deny them their just reward? Who are you to condemn other Blacks to continue to work with an abomination?

But, no. Many Blacks will say we’re going to be the bigger person or a “Christian.” But, the reality is that the same White person that you extend forgiveness to after they “jokingly” calling you a monkey is the same White person that will make the comment again in the future. It’s the same White person that will feel they can escalate their offensive language.

The same White person that you extend forgiveness to and try to be fair with after they lie about your work ethic and job performance to your supervisor—strictly based on their racist instincts and not fact—is the same White person that will engage in this behavior in the future. If they don’t target YOU again…they will target another Black person or other minority.

The same White person that you extend forgiveness to and try to be fair with after they deny you a promotion—without basis and based on your race and not your job performance—is the same White person that will refuse to promote you next year. This same White person will also refuse to promote other Blacks or minorities.

Yet, far too many Blacks will continue to use the word “fair” to describe why we ignore racist behavior and actions in the workplace—even those that truly impact our careers in a negative manner.

When you extend forgiveness, you would and should expect that you are dealing with a person that is grateful to have received the opportunity to be forgiven. However, in the workplace, gratitude isn’t often the end result of letting someone remain unaccountable for their racist words and/or actions. Most people don’t learn a life lesson on the first try. Many people have to repeat their mistakes before they finally get it and make a behavioral change.

So, here are some questions about being fair with others in the workplace:

--How is it fair to continually overlook behavior that is hurting you, while it empowers your attacker?

--How is it fair to allow someone to engage in behavior that demoralizes you and makes you hate being in their company or going to work?

--What exactly are Blacks in the workplace seeking, when they are claiming they are only trying to be “fair” or “a bigger person” or a “Christian,” when they ignore or accept the fake apologies of on-the-job racists?

--Is the label “fair” simply a way to shirk the responsibility of following through with putting a stop to racist behavior at work?

--Is the label “fair” designed to avoid retaliation from the White worker in question or Whites at the company—as a whole?

--Is it fair to have false critiques placed in your employee review, simply because of your race? Is it fair to be denied a promotion simply because of your race? Etc.

Last, but not least…

When is it less important to be fair and more important to hang someone with the same rope they laid out for you?! The racist often takes advantage of a Black worker attempting to seek the higher ground. The racist often counts on not being confronted or challenged about their behavior. The racist is calculating. A racist will think about their chances of getting away with their behavior. That’s why they will often use covert language or tactics. I had a post, last year, where a White manager used a code word around a Black worker to refer to her a ni**er. So, yes, a lot of thought often goes into getting away with racism at work.

At some point, Black workers need to stop trying to be so damn fair and forgiving and need to start going on the offensive. Only by having a zero tolerance attitude for racist comments and behavior that creates a hostile or offensive work environment or negatively impacts our careers (e.g., promotions, etc.) will Blacks be able to confront racism and to truly provoke continued change in the our workplaces around the country.

By the way, you can be a Christian, while reporting a racist supervisor to Human Resources. Don’t let anyone ever tell you differently! You can forgive and fight for your human/workplace rights at the same time.

Reader Comments: Defamation by Conduct

Here’s some information that was sent to me by a reader. I’ve concealed the identities of those involved, but this is still a powerful example of how a person can have their reputation destroyed by colleagues and managers. It’s also an example of how defamation/slander, etc. can cost a person their job!

The Reader wrote...

Employers either don’t realize, don’t care, or don’t see it as a serious of issue, but slander, libel and defamation of character are illegal and the employer can be penalized. Here's what happened to me:

Coworker X knew the accusations she made against me were lies, yet she repeated them to Coworker Y, Coworker Z, and Manager A; Manager A then “confirmed” Coworker X’s statements through Coworker Y and Coworker Z, who admitted to Manager A that they were only repeating what they had heard from Coworker X. Neither Manager A nor HR had proof of the accusations, they didn’t make an attempt to find the truth, and based on HR’s comments, HR only judged me guilty because one person made the accusations but the accusations were “confirmed” by “many/several” people. Manager A judged me guilty because according to her “many/several people said the exact same thing and they couldn’t all be wrong.” Uh yeah, and she’s actually a member of management. Go figure.

Coworker X knew she was making false statements against me therefore, her actions were defamatory; Manager A/the company’s actions may show defamation by conduct as their actions showed a “reckless disregard for the truth.”

I was suspended based on these lies! The stipulations in a Final Written Notice I received was that if any employee construed or perceived me to have violated the terms of the suspension or the Final Written Notice, it was grounds for my immediate termination. Well, how and why would any employee be privy to the terms of my disciplinary action? Did Manager A tell staff that if I rolled my eyes to come tell her? Or if they heard me talking about her (as was reported by Coworker X on March 8) or if I didn’t greet them or gesticulated excessively, to inform her? Obviously, the way that Manager A drafted my Final Written Notice which was approved by HR, and the language used regarding grounds for immediate termination implies that staff were privy to information that was not their business and may prove that Manager A/my employer informed my coworkers of my disciplinary action although my coworkers didn’t have a legitimate right to know. This is illegal and grounds for a lawsuit.

If an employee knowingly makes and then spreads false statements about a person/people in the workplace, and the statements negatively impact this person/people, i.e., staff no longer associate with them, advancement/job opportunities are lost, the employer can be accused of defamation by conduct.

Manager A and my employer are guilty of defamation by conduct by “publishing” the Final Written Notice included in my personnel file. The Final Written Notice automatically prevents me from being rehired at my employer because the accusations against me violate their code of ethics. But the accusations aren’t true and that should prove detrimental to my employer’s argument that they did “everything by the book” regarding the actions they took against me.

I was subjected to a reduction in force action/laid off due to my job being designated as no longer necessary. But, I was told that I could reapply for a job at the same company. I pointed out to HR that the language of the Final Written Notice was slanderous and extremely harsh and that my chances of being rehired at my employer were null. She said the Final Written Notice would not be removed – well that was fine with me since it proves my defamation claim. My employer’s conduct in relation to their “investigation” and the Final Written Notice is questionable because the “evidence” they used to judge me guilty were the statements made by Coworker X and confirmed by Coworker Y and Coworker Z – but Coworker Y and Coworker Z admitted to HR and Manager A that they were only repeating what they heard from Coworker X.

Something that may prove detrimental to my employer – Manager A informed some staff that some of us were being laid off (and she named us) before notifying the laid-off coworkers. And, she informed them that we were being let go but new staff were being hired. So how did she justify letting us go?

And, when I called the Director of Labor, Employee Relations and Compliance and informed him of: Coworker X’s actions; another baseless accusation being made against me in an effort to defame my character; and that I continue to question the motivations of Coworker X and Manager A (and I used this exact language), he had the opportunity to investigate the situation right then and there. But he did absolutely nothing. My phone call put him on notice that I was being slandered and maligned yet again, and he did nothing. I am pursuing action in this matter!

What happened to me may also serve as defamation by conduct and courts are starting to take this very seriously. Here are some links that may be helpful:

http://library.findlaw.com/1999/Sep/1/127684.html

http://www.uslaw.com/library/article/carel8DefamatoryAction.html?area_id=43

Thanks, reader, for sharing your horror story!

DO YOU HAVE ANY EXAMPLES OF WORKPLACE DEFAMATION, ETC. THAT YOU’D LIKE TO SHARE? POST A COMMENT OR SEND AN EMAIL TO BLACKONTHEJOB@YAHOO.COM!

Never Tolerate Any Level of Race-Based Character Assassination!

I can’t stress this enough: NEVER ALLOW ANY LEVEL OF RACE-BASED CHARACTER ASSASSINATION IN THE WORKPLACE.

I’ll give you an example of how race-based character assassination can come back to haunt you and destroy your career. I worked for an employer where several White women that had problems working with certain Black women. The Black women they had problems with had three things in common:

1) The Black women were all brown-skin to dark-skin in complexion;
2) The Black women weren’t intimidated by these women, as many other women at the company were (other women would tense up, when they saw this clique, etc.); and
3) The Black women weren’t afraid to say “no” to these women (e.g., refusing to do impossible tasks caused by impossible deadlines because of last minute requests, refusing to drop other priority assignments in order to complete a routine request, refusing to pass along their threats to other workers, not tolerating blatant disrespect and threats, refusing to allow the women to blame them for problems caused by the group/not tolerating becoming a scapegoat, etc.)

Any Black woman that fit these criteria was immediately greeted with a chorus of stereotypes from the White women:

-- She’s angry
-- She’s defensive
-- She’s mean
-- She’s rude
-- She’s moody

The White women would use any combination of these racially-based stereotypes that would help turn other staff against these women as well. For instance, if one of these women sat on an important project until the last minute and the client asked for an update, the women would hurriedly try to figure out everyone that needed to pitch in to help them meet the deadline. They would never admit to being behind schedule. So, they would “crack the whip” and make their incompetence everyone else’s problem. So, they might barge into several people’s office throwing around their perceived weight and using the fear they’d built up to their advantage.

Then, let’s say they get to a Black, female worker that met the criteria above. And, they DEMAND (not ask) for her to do x-y and z by the early afternoon. And, let’s say x-y and z would take until close of business the next day to be done correctly and to be reviewed. Well, they wouldn’t have any of that. If these White women asked for something in 2 hours, they’d better have it in 2 hours—or threats to a person’s job security would fly fast and furious. Now, let’s say the Black woman refused to do take on the task because of the parameters of the assignment—she was being set up for failure—and would be the scapegoat for the failure.

Well, they’d accuse the Black woman of not doing her job, would make job threats, etc. And, if the Black woman stuck to her guns and said, “You can’t have that in 2 hours because of [reason]…,” forget it! These White women would go on the war path. The war path led right to character assassination.

Before you knew it, they’d go around the office talking to other high-level staff about how the Black woman was “difficult to work with.” And, from what I heard, they would pose it as a question, such as “Don’t you think she’s difficult to work with?” They wanted to get a consensus opinion. And, they’d tell other staff that the Black woman was moody and they didn’t know what to expect, when dealing with the Black woman. Or, they’d say that the Black woman wasn’t a team player, had a chip on her shoulder/was defensive, was unprofessional, etc.

They’d never admit that they were making unfair demands, had threatened to report the Black woman to HR, etc. These White women would take their falsehoods and hold them until the Black woman’s performance evaluation. That’s when all the race-based stereotypes would be regurgitated. At no point would any of the Black women’s supervisors ask about an incident reported by these women. No! The White supervisors and managers would just document the false claims as if they were written on the Holy Grail! The real payoff was that it would impact the Black woman’s yearly salary increase and decrease her promotion opportunities. Talk about retaliation!

The Black woman would have discussions with their White supervisors, where the supervisors would admit not having the same feelings about the Black worker as this group of women. However, because of the status of the White women, the negative comments from these women would have to remain in the Black woman’s record. No matter what!

And, sometimes, the brainwashing of other staff would actually take hold. Suddenly, a Black woman that worked at the company for years might be called “defensive” or “difficult” by other staff—all while behaving the same way she’d always behaved. It didn’t matter if the Black woman had great relationships around the company. One-by-one, slowly, but surely, you could sometimes see the poisoning was working. This was especially true of those workers that were scared of the women. They’d take on their viewpoints in order to try to fit in with them. There was another perk…if someone else was a temporary target, it meant they were not!

So, based on my experiences, I challenge you to truly fight back against race-based character assassination. Here are some tips:

Tip #1: Have a zero tolerance policy for anyone attempting to slander your name and/or falsely assassinate your character.

Tip #2: Address misrepresentations and character assassination. Don’t run from the issue of slandering in the workplace. You only get one name and damage to your reputation can permanently hurt your career opportunities and pay raises with your employer. It can also impact your overall treatment by management and coworkers that may be swayed by the character assassination.

Tip#3: Don’t be defensive. Instead, address any issues head on, including what may have lead to the individual’s false characterization of you. If you believe that some prior incident may have sparked someone’s false perceptions about you, clear it up. If something you did was taken out of context or misunderstood, explain your intentions and clarify the cause of the confusion.

Tip #4: Clear up any misrepresentations about your character by responding with facts. If the person has slandered your character/made accusations about your character in an email or memo to you, respond—in writing! Don’t get into name-calling or write an emotional response. Just present the facts and list any witnesses who can provide input about the circumstances surrounding the incident or slandering taking place. Copy HR and your supervisor on the email and request intervention to clear up the incident and find the facts. If the person has copied others in the email, decide whether you should respond to all or just to the sender—with a copy of your response to HR and your supervisor. You don’t want to be accused of starting an email war. But, you shouldn’t let it slide. Further, your company may have a policy in place regarding email etiquette. Try not to violate the rules. If you don’t reply to all, be sure to speak to the other individuals personally regarding the false attacks on your character. Don’t let the impression remain that the person making accusations is right about you.

Tip #5: Document everything. If a person is routinely assassinating your character, document every incident you find out about and make a witness list that can corroborate that the person is making major efforts to tarnish and destroy your reputation.

Tip #6: Don’t allow someone to paint you as “sensitive” for caring about the remarks being spread around the company. Your family name is priceless. It may not mean much to those you work with, but it should mean everything to you. You were born with that name and regardless of what kind of life you’ve lead (whether you come from poverty, abuse, etc.) NO ONE has a right to tarnish your name with false statements about who you are and what you represent. The name you have is the name that you carry to your grave. Wear your name with pride. Don’t let anyone get away with character assassination.

Tip #7: Talk to your supervisor and HR. Present any documentation you have about patterns of behavior meant to destroy your reputation, name witnesses, etc. Demand that the person and their accusations be addressed. Request a meeting with HR, your supervisor, and the perpetrator, to clear the air. See if the person is willing to repeat any false claims in front of HR and your supervisor or if they will deny it.

Tip#8: Ask for corrective action against the perpetrator, once it is proven they have been slandering you around the office. Do not let this slide. Demand to know what consequences await the individual.

Have pride in yourself and your name. Your name and reputation are your most basic assets. You take them every where you go. Don’t let anyone tarnish your reputation. Character assassination and intentional misrepresentations can destroy your chances to be promoted and/or may lead to disciplinary action, up to and including termination.

Unable to Post More than 200 Characters

I apologize, once again. I am currently unable to post more than 200 characters to the blog--a very short paragraph. I have contacted Blogger about the issue. Please check back later!

Technical Glitches With Blogger!

Sorry for not posting yesterday. But, it wasn't for lack of trying. I've been having some problems logging into my account to post updates. Hopefully, there will be consistent access soon! Anyway, a new post is included below!

Don't Let Whites In The Workplace Tell You How You Should Feel!

In the workplace, some Whites feel it is their moral obligation to tell Black coworkers how they should feel about to certain incidents, comments or actions.

This isn’t about opinion. No, this is about White workers literally telling a Black person they should or shouldn’t feel a certain way about racially insensitive comments, actions, etc. For instance, let’s say a White worker makes a racist and insensitive comment. Black workers complain and are told by Whites that they, “…shouldn’t feel that way (or take it that way).” Or, they may be told outright, to “not be so sensitive.” This completely disregards the feelings of the Black workers and actually marginalizes the workers with the assumption that they aren’t even smart enough to interpret routine day-to-day communication, standard English (normally their first language), and racist insults or actions.

I’ve experienced this myself—more than once. For instance, I’ve been told (by an HR rep and 2 supervisors) that the only reason I took racist actions “that way” was because I was an emotional person and that I was overreacting to the situation based on my “state.” I was also told that I had a high level of stress. I was told that my stress—and not the actions—were causing problems for EVERYONE at work.

So, not only was I being told that I couldn’t I understand how I felt, but I was told my feelings were faulty from the get go! Not only that, but my feelings were causing issues for Whites throughout the company! I even received the lowest ratings on my performance evaluation for upsetting the chain of command with my alleged hysterics.

Well, that trick only works on the weak minded. I know how I feel. I know that I’m not a sensitive person. I know that I wasn’t jumping to any conclusions. And, I know that an initial probe of my allegations, by an outside State agency, revealed at least 2 incidents of illegal misconduct against me. The investigation is still currently ongoing.

So, my advice to every Black reader is to remember that YOU KNOW WHEN YOU ARE EXPERIENCING RACISM! So, don’t let other people tell you how you should feel about:

--being called by a racial slur;
--being compared to a jungle beast or some other creature;
--being on the receiving end of racially insensitive remarks or comments;
--being disrespected, demeaned and ignored or marginalized based on race or race-based stereotypes;
--receiving extra scrutiny and criticism because of your race; or
-- having someone White using employment actions to harass you and to create a hostile work environment because of your race.

Some people come right out and say what's on their minds--no matter how negative or offensive the comments are. But, others are more covert. Nevertheless, your powers of observation, your listening skills, and your life experiences let you know when a person is behaving a certain way—universally (regardless of race)—and when they only behave a certain way, when dealing with Black workers. For instance, there may be a White worker that is only extremely rude and demeaning, when they must work with Blacks. Any other time, this person is the post card version of a socially acceptable and professional employee.

Or, you have a manager that goes out of their way to get training opportunities for White subordinates, to fight for great assignments for White subordinates, to fight for promotions for White subordinates, and to fight for big salary increases for White subordinates. The only problem is that this same White manager will do NONE of those things for their Black subordinates. In fact, this manager may go out of his/her way to criticize their Black subordinates, to keep them performing the same work at the same responsibility level, etc. The only employees this White manager champions for are those that are the same race as him/her! And, in this example, that’s all you would need to know to see there’s an issue on your job.

And, that gets back to my point. You know how a comment or action makes you feel, how it has changed your work environment, how it has impacted your career, salary, etc. So, don’t let people impose a false reality on you. Don’t allow someone to tell you what you must think or must feel about something. Your feelings may be dead on and this person may be simply trying to protect themselves, a coworker, a person in authority or the company—as a whole.

Everyone thinks in lawsuit terms these days. Unfortunately, many White workers will defend a White perpetrator, will say they don’t know anything about an incident to avoid involvement, may lie to protect the company or engage in other behavior that serves to protect their own interests. People have families. They are usually not going to lay down their careers for someone, especially someone of another race. That can be said about many of us!

I just want to drill home the point that a White coworker could have any number of motives for trying to dictate how you should feel about a race-based incident (company loyalty, sympathizing with the perpetrator, seeking reward/benefit for their actions, etc.)

When a White person is telling you how you should feel, what is it really based on? They haven’t experienced the trials and tribulations of being Black in America. They can relate to you as a person, with certain general and shared experiences, but they can’t relate to you on race. So, how can a White person dictate to you how you should feel or respond to a race-based incident? They can’t!! Whether they agree with your position about racism at work or not isn’t the issue. They can empathize with you, but a White person can never cry your tears or feel your pain because of race-based trauma caused at work.

So, don’t enable a White person to potentially talk you out of pursuing a race-based issue at work. I don’t care how cool this White person seems to be, I don’t care if they date Blacks or other minorities, I don’t care if they have Black adopted siblings, if they seem to have your best interests at heart/seem sincere, etc. You shouldn’t be getting input on how you should feel about a race-based issue—one way or another—from someone White! But, if you do have that conversation, keep it in proper perspective.

Don’t let someone cover up possibly illegal behavior. If you want to ignore an incident or comment or personnel action, that’s up to you. Just don’t pretend it’s not what it is!

You’re an adult. You’ve been Black all your life. Your red flags will go up, when you’re dealing with suspected race-based issues. Don’t ignore the cues. Racists at work only continue with their behavior because so many Black workers will allow some White worker or manager to talk us out of our legitimate feelings, will tell us we’re overreacting, will tell us we are sensitive, will convince us to ignore warning signs or will tell us they’ll deal with an issue “behind the scenes” or will speak to the racist individual “privately.”

You know how you feel. But, you should also know the guidelines in the personnel manual for employee conduct and for preventing and correcting problem behavior—active racism being one of them. You should also stay informed about Federal laws regarding misconduct, discrimination, harassment, etc. Only by knowing your rights will you know whether your feelings are signs of a much bigger issue at work!

LEGAL BRIEFS: TRANSIT COPS ALLEGE ON-THE-JOB RACISM

Talk about seeing the writing on the wall, but ignoring reality…

Going back as far back as the mid-80’s, NY Transit cops now say they have been summarily discriminated against based on their race. For instance, Detective Marshall Mazyck (Black) asked for a 1984 transfer to an anti-crime unit, when a White commander came right out and told him “We don’t want ni**ers in this unit.” That should have been the first clue to talk to a lawyer. That’s direct evidence of racism!! Nevertheless, Detective Mazyck stayed on the job.

Today, a group of minority transit cops, including Detective Mazyck, have filed a $12 million lawsuit against the Metro Transit Authority (MTA) for systematic discrimination. The cops say they were often subjected to racial slurs, were frequently passed over for promotions, and were even denied many overtime opportunities. For anyone who knows anything about these jobs, you can make a killing on the overtime alone. Overtime pay will SUBSTANTIALLY boost your year-end take, when you work for the MTA.

One obvious clue that the MTA likely discriminates comes in this statistic—96 percent of people holding the rank of captain or higher are…(drum roll)

WHITE!

We’ll see what happens with the lawsuit, but the initial allegations and stats don’t look good for the MTA.

As for the cops, better late than never! I’m glad they had the courage to come forward to fight such a powerful state agency.

Source: NY Daily News, Transit Cops Sue “Racist” MTA, by Kari Cornell, Saturday, May 5, 2007

Handling Performance Evaluations - Part III

Continuing with the tips and suggestions for handling performance evaluations, we continue with Tip #7:

Tip #7: If your employer demands you sign a negative performance evaluation, sign your performance evaluation with stipulations/comments. When people get performance reviews they don’t agree with, they’re often never really sure if they should sign the evaluation or not. But, the reality is that signing your review simply means that you’ve read and understood the contents of the performance review. It is not a statement of agreement. But, that doesn’t mean your employer won’t try to play your signing the review in that way.

So, I always suggest that you sign the review—if you must—but, that you write (underneath your signature line), “I have read, but do not agree with the content of this performance evaluation. I will be submitting written documentation to support my opposition to certain aspects of this performance review with the anticipation that the review will be amended.” Or, you can write something along those lines. Write in the borders of the review or write in the white space of the review. But, do not write in the empty space on the back of the review/page, which can be missed, ignored, more easily erased, etc.

The fact of the matter is, your employer can’t take a review (signed in the manner above) and then, later, try to insist that you read your review, understood it, but didn’t make any written or verbal complaints after receiving the official feedback.

Tip # 8: Prepare a formal written response. If you’ve received a negative and/or fraudulent performance evaluation, don’t forget to follow up your disagreement with the content of your review with an official email or memo to your reviewer, supervisor and/or manager. Have as many meetings as necessary to work out any issues. Ask for your review to be amended. Provide documentation to prove that your point of view is correct. Ask coworkers and other managers you’ve worked with for written statements about your performance.

This is best done on the front end of a performance evaluation, as I’ve written in the past. Always give thank you emails or congratulatory emails (sent to you from clients, coworkers, etc.) to your reviewer, supervisor, and/or manager throughout the performance review period. This lets them know you are consistently doing a good job and makes it harder for them to set you up during your actual performance evaluation. If you don’t give positive feedback you’ve received to your supervisor or manager during the year, give him/her a full copy of your kudos in the week or so before they are scheduled to draft performance reviews for their subordinates.

Tip #8: If your supervisor or manager doesn’t want to discuss amending the review, go to Human Resources! Ask for a meeting to discuss your official evaluation. Be prepared to offer solutions to resolve the problem and to correct the performance evaluation. Have a list of people that can support your strong and positive performance during the review period. Point out every area of disagreement with the review. Don’t rely on general complaints or statements. Talk in specifics about what is wrong with the review, why it is wrong, how you can prove the error, and what can/should be done to fix your review.

Tip #9: Request that HR conducts a formal investigation, if the accusations in your performance evaluation are extremely egregious and could result in employment actions, such as a suspension, demotion, salary cut, probation, termination, etc. Prepare your direct and circumstantial evidence of misconduct and/or violations of performance evaluation guidelines or corporate policies and procedures on the part of your reviewer, supervisor, and/or manager. Your official complaint should clearly justify why an investigation is warranted, who should be questioned about the facts, and the reasons you suspect racism or other illegal misconduct (harassment, retaliation, etc.) on the part of your reviewer, supervisor, and/or manager. If HR agrees to investigate, find out the timing of the investigation, who will be interviewed (look for anyone with a conflict of interest, grudge against you, etc.), and learn about the appeal process, should you not get a decision in your favor.

Remember, it’s your performance evaluation. The review will impact your career, your promotion opportunities, your yearly salary increase, bonuses, and could impact your overall treatment at work and, more specifically, within your department.

Don’t let false, harassing or retaliatory comments remain in your performance review. Even if you transfer to another department, that review will follow you throughout your career at the company. Stand up for yourself. Fight for a fair and equitable review process and a truthful review.

Handling Performance Evaluations - Part II

Continuing from yesterday’s post, we’re starting with Tip #4 for handling performance evaluations:

Tip #4: Ask lots of questions! You don’t have to sit in a performance review meeting simply accepting every word that’s said as if you’re sitting in front of the Burning Bush—instead of in front of your supervisor or manager! You have a right to ask for specifics about the statements being made about your performance, you have a right to explain your side of the story in any incident being used against you, and you have a right to ask for the project names and any other information regarding allegations that you are a poor performer or have engaged in negative behaviors, etc.

You can ask questions about anything you want AND your supervisor or manager should have the answer—immediately. They should not have to go talk to anyone to learn specifics. If they have included information on your performance evaluation, they should be able to back it up—on the spot—or there should be conversations about removing the comments from the review. It is not inherently plausible that a supervisor or manager is unable to provide a worker with the specifics about rude, intimidating, unprofessional, or any other negative behavior. Similarly, a supervisor or manager should automatically have the answers regarding missed deadlines, sloppy work/lack of attention to detail or any other performance-related issues.

If your supervisor or manager can’t answer your questions about their critiques of you, you may have a serious problem and you should question who wrote/shaped the content of your review. Ask your supervisor or manager what the issue is regarding their problem with memory recall of your performance or behaviors.

Tip #5: Ask for examples! Don’t allow your supervisor or manager to make blanket statements about you, your work or your attitudes/behaviors. If they want to attack it, they should own it! In other words, if your supervisor or manager wants to make a vague criticism, they should be willing to go as far as they have to in order to prove the criticism is legitimate. On a performance evaluation, every critique and every compliment is used to give your performance evaluation an overall score/grade. That is how many employers decide on an employee’s yearly salary increase, promotion eligibility, etc. Employers look at the overall performance of an employee and they compare it to the overall performance of other similar employees. Every critique adds up—against you!

If you hear something and you don’t know what your supervisor or manager is referring to, ask them, “Can you provide an example of when I allegedly behaved that way?” Get examples because your supervisor or manager will be held to the examples and justifications they’ve provided against you. By asking for examples, it forces your supervisor or manager into a position they may be uncomfortable with, but too bad. Many people don’t like to be questioned, just as a matter of course. Many people believe that their authority, words or commands should be accepted at face value. But, you have a right to ask for examples. Your supervisor or manager took the time to criticize you—in writing—at your yearly review. Therefore, he/she should take the time to defend the content of the review and to make sure you understand where you’ve allegedly gone wrong.

How can you gauge your progress towards correcting negative behaviors or poor performance if you don’t know what the exact problem is because you’ve never been given an example of what you’re doing wrong? How can you improve? You can’t! Without examples, you’re being set up for failure and possibly just set up! Blanket statements can be used to ensure that you are denied a promotion, etc. If you have a racist manager, you can be sure they’ll do whatever they can to make sure they further any goals they have against you—as a minority employee.

Ask for examples. If your supervisor or the company comes up with different “examples” to use against you at a later date, it will make any adjustments to their rationale/story very suspect!

Tip #6: DOCUMENT EVERYTHING!!! If your supervisor or manager says anything strange or makes very harsh critiques of your work performance, behaviors or attitudes—that you believe are completely baseless—write down the exact quotes. I don’t care how hard your supervisor or manager watches you move your pen over your notepad. Write everything down. You may need exact quotes at a later time. Hold your supervisor or manager accountable to everything they’ve said.

In my case, when my supervisor created a mid-year review process, simply to attack me and discriminate against me for another race-based incident at work, she wouldn’t document the content of the fraudulent mid-year review I received. Therefore, I didn’t get a copy of a performance review to sign or keep for my records.

The day before my year-end review, my employers changed the personnel manual to state that supervisors could give “informal” reviews anytime they chose to and they didn’t have to provide a written component for the review. In other words, this justified the lack of documentation for that retaliatory mid-year review. However, I wrote like a fiend. I captured every attack made against me and I submitted a complaint the very next business day. Regardless, the company changed the policy to cover their tracks AND…

My employer only referred to the “2nd half of the review cycle” throughout my year-end review. At no point during my year-end review would either of my supervisors or the HR Representative in attendance talk about the mid-year review. I was told, “That’s old news. We want to move past that.”

Always document what’s being said to you because, even if you do receive written documentation of your performance evaluation, it doesn’t mean that there is consistency with what was written and what you were told. Some supervisors and managers are willing to go out on a limb with what they say, compared to what they write or document. So, document everything!

More tips will be provided tomorrow.