Disparate Impact

Disparate impact occurs when members of a protected class are substantially underrepresented as a result of employment decisions that work to their disadvantage.

Even where an employer is not motivated by discriminatory intent, Title VII of the Civil Rights Act prohibits an employer from using a seemingly neutral employment practice that has an unjustified adverse impact on members of a protected class. Practices that have the appearance of being fair may actually be discriminatory in form.

Employees would have to use statistical information to show a negative/disparate impact on a protected class (e.g., Blacks, women, the disabled, etc.). Of course, the employer would probably argue fuzzy math as a defense against the statistical evidence or the employer could cite a business necessity (mentioned in a previous post) for the practice.

If the employer says it has a business necessity that justifies a seemingly discriminatory practice, the employee could argue that there were alternative practices available that would not have disenfranchised the protected class of employees, but was not used by the employer.

Examples of practices that may be subject to a disparate impact challenge include written tests, height and weight requirements, educational requirements, and subjective procedures, such as interviews.

Source: http://www.hr-guide.com/data/G702.htm

Disparate Treatment

Disparate treatment occurs when members of a protected class are treated differently from similarly situated employees. The question examined is whether the employer's actions were motivated by discriminatory intent. Most employers won’t admit to treating an employee differently because of race, but it does occasionally happen. That rare case would be an example of direct evidence.

Most employees will have to use circumstantial evidence to show disparate treatment. To do so, an employee must point out how the actions of an employer infer racial discrimination in the workplace. The employer would then have to provide a reason, a non-discriminatory reason, for why they took the actions being disputed. Many employers will provide a reason that is nothing more than a pretext (something I’ve mentioned in previous posts) to hide their real motivation—discrimination. So, they will come up with a race-neutral reason to justify their actions.

An employee probably won’t be successful in proving disparate treatment, unless they prove that the reason provided by the employer is a pretext (a lie/cover story). Therefore, it’s important to document every meeting you participate in regarding your issue, to file away key pieces of evidence (e.g., memos and emails), and to maintain a list of witnesses, who can corroborate your position.

Employees must attack their employer’s stated and written positions/defense, line by line. Don’t leave out any relevant points or fail to point out any inconsistencies, no matter how minor the issue may seem. You must build a strong circumstantial case, if you don’t have direct evidence of disparate or unequal treatment at work.

FYI: An example of disparate treatment would be asking Black applicants to take and pass a special test, but Whites don't have to take this test at all.

Source: http://www.hr-guide.com/data/G701.htm

How Far Would You Go?

I’ve been amazed at how far some Black people are willing to go in order to “fit in” with White coworkers and to try to be “liked” by White coworkers. So, I ask…fitting in…being liked…how far would you go?

Some Black workers will bad mouth other Black coworkers to White staff, will dime out a Black coworker to White staff or will engage in other behavior that is intentionally designed to show loyalty to Whites, while exhibiting disloyalty to Blacks.

I had a group of Black coworkers that made complaints about a White manager to a Black supervisor. When the Black supervisor addressed the issue and found herself the target of many Whites—and the company as a whole—those same Black workers tried to figure out how to turn her misery into their fortune. They signed false statements against the Black supervisor, pretended not to know anything that was going on in the department regarding the supervisor’s mistreatment, and accepted unprecedented raises, market increases, and other financial rewards that they knew were nothing more than bribes.

Their behavior disgusted me then and it disgusts me now. Not only were they cowards, but they were calculating. And, they had absolutely no character. They enjoyed their reward and went out of their way to side with White workers and members of management that were engaging in illegal misconduct. How does this tie in with fitting in and being liked?

The Blacks that engaged in this behavior were the same Blacks that were always trying to win over White staff and who talked openly about the things they did to get White coworkers to "like" them. For instance, one Black coworker would tell Black coworkers that he always shared with White coworkers that he didn’t like basketball. He said that he would only talk about sports that Whites liked, such as golf. A Black woman would buy and make lunch for all the staff in the department—at least once a month. She served everyone in the department lunch, including a few Black staff, but it was clear she was doing this for the benefit of the Whites in the department. She would say, “I’m liked,” when referring to the Whites in her department. She felt that her lunches were getting her over and making her popular with Whites.

So, it’s no accident that these are the very same Blacks that could assist White supervisors and other members of management in destroying the career of a Black woman that was championing their causes at work, fighting for better treatment for them, and had gotten some of them significant pay raises on their yearly reviews. The fact that she did a good job for them as a manager couldn’t fight the desire of these Blacks to get in good with Whites. These Black needed the acceptance of Whites. It was a regular part of their conversations.

So I ask again…fitting in…being liked…how far would you go?

Part of a being an active member of any society means finding common interests with other people/races, compromising, and stepping out of your comfort zone. However, interacting with people in a positive way and a** kissing based on playing into stereotypes and being cut throat—only with other Blacks—goes far beyond the call of fostering camaraderie at work and it goes far beyond simply trying to “fit in” or be “liked.”

In the workplace, the interpretation of blackness and acceptability is not up to us. Executives, directors, supervisors/managers, and coworkers have enormous input into the perceptions that exist about Black people in the workplace. Some of the people shaping these perceptions are going to be racists. Playing into stereotypes and trying to destroy others to gain favor at work only serves to tear down all minorities at the company because it validates the perceptions that we’re fighting everyday.

We always hear about Blacks being like crabs in a barrel, always snapping at each other. Why engage in that behavior at work? We always hear that about Blacks being envious of each and trying to tear each other down because of petty jealousy. Why engage in that behavior at work?

As Blacks, we need to take responsibility for some of the stupid drama going on in the workplace. And, we need to take responsibility for the fact that some of us actively assist White racists in the workplace and we do this knowingly. All the drama we create amongst ourselves serves as entertainment for the Whites we work with and it often facilitates Whites, who are biased against Blacks.

We should never want to fit in or be liked so badly that we are willing to sell out ourselves or other Blacks for the benefit of racists that would target all of us, including those yet to come! Remember that, the next time you think of running behind someone that you know means you or your people no good! You can’t fit in with or be liked by someone who has no intention of ever accepting you and who has no respect for you or your race.

Track Your Awards, Honors, and Memberships

You should keep track of any awards and honors that you’ve received. Be sure to spotlight awards and honors that are particularly relevant to the field you’re working in. Most people track awards and honors starting from college and then add any awards and honors they’ve received as a professional. Some people include awards and honors going back to high school.

Regarding memberships, if you’re extremely active in an organization where you hold a membership—particularly if it’s an organization closely related to your field of work—be sure to give some specific details about your activities with the organization.

Don’t just sign up to become a member of an organization. You should figure out if there are areas where you would actually like to be active. Then, volunteer or do whatever you need to do to fill that role (e.g., serving on a committee, assisting with an organizational event, submitting an article for the organization’s newsletter or other publication, etc.).

This can only serve to help your career and looks great on your résumé.

Where's the Weed?

That’s the question a 19-year old Black teen was asked after he was stopped (by State Troopers in Long Island, NY) for allegedly speeding. But, check this out…not only did the troopers want to know where the kid, Ricky Walker, was stashing “the weed,” the troopers also forced him to throw his car keys out of the window and onto the ground.

How often does that happen in a routine traffic stop—even for speeding? Talk about racial profiling. The troopers instantly thought they would find drugs and assumed they had just encountered someone about to lead them on a high-speed chase. But, they also stereotypically thought they had found a real threat for violence in the baby-faced teenager.

One trooper told the teen that if he looked at the trooper (in the rearview mirror) one more time, “I’ll shoot you in the back of your head…You [expletive] bastard – you move – I’ll kill you!”

This wasn’t about a kid speeding. This was about a Black teen driving a Mercedes. He was DWB (Driving While Black) and doing it in a nice car. This made him a drug dealer, to the troopers.

Just as an FYI, the car belonged to the teen’s mom—a traffic enforcement officer for the NYPD. The trooper that made the stop apologized to the teen, after he left the station a few hours later (with a speeding ticket).

Ricky Walker has retained a lawyer because it appears he was racially profiled by the troopers.

Source: The NY Daily Post, June 20, 2007, Black driver’s ‘bias’ ordeal, by Kieran Crowley

Life's a Beach!

Many White people act as though Blacks are always crying wolf about unequal treatment (read: experiencing racism in our day-to-day lives). Yet, there is always evidence that racism is as prevalent today as it has been in the past.

From shopping in stores (and being followed by security), to trying to catch a cab (and having the cab driver pretend to be off-duty and ignoring your waving hand), to moving into a predominately White neighborhood (and having your neighbors make it perfectly clear that you supposedly don’t belong), Blacks have to deal with racism in many aspects of our lives.

Now, let’s add going to the beach to that list.

Yes, going to the beach.

Snooty White homeowners near Brooklyn’s Manhattan Beach are trying to have the beach privatized in order to stop “thugs” (read: minorities) from going to the beach. How do they plan to do this? They plan on making it very difficult and unpleasant to come to the beach by:

-- charging people a fee to enter the beach area;
-- closing the beach at a moment’s notice, whenever “thugs” start to arrive;
-- creating a single entrance to the beach and having metal detectors there; and
-- by adding more cops and surveillance cameras.

The issue is that many minority high-school and college students like to go to Manhattan Beach and the homeowners don’t like it. So, they’ve gone as far as fabricating a shooting incident to justify the changes they want to make. People on the beach said there wasn’t a single serious incident at the beach. When pushed on the subject, one of the homeowners had to admit that there wasn’t a shooting incident (read: it was a lie). But, the homeowners thought everyone would accept the lie because everyone knew they were referring to minorities, when they spoke about alleged shootings.

Why am I writing about this? Because people like this work somewhere! So, I ask…

How do you think they perceive the Blacks they work with, if they don’t find Blacks (and other minorities) worthy of going to “their” beach?

You see, this open-minded society we live in is nothing more than a fabrication. There is still more to strive for regarding the dream Martin Luther King, Jr. spoke of. We must stop pretending we are all one big happy family and that racism has gone the way of the dinosaurs.

Again, these people—who are bold and stupid enough to be obvious bigots—are someone’s employer, supervisor or coworker.

Can they give fair performance evaluations? Can they decide a Black, Hispanic or Asian employee has earned a promotion? Will they sign off on the training classes that will help a minority employee gain valuable knowledge and skills that will make them more competitive with other coworkers (read: White coworkers)?

The answer is…You can’t turn racism on and off! These stories are directly linked to racists in the workplace. The people that engage in this behavior off the work site will also engage in the behavior on the work site.

Bona Fide Occupation Qualification (BFOQ)

A bona fide occupation qualification (BFOQ) is a quality or an attribute that employers are allowed to consider when making decisions on the hiring and retention of employees–qualities that, when considered, in other contexts would be considered discriminatory and thus violating civil rights employment law. In other words, a BFOQ can be the justification an employer provides after being accused of discrimination.

An example of a BFOQ is that Chinese restaurants can argue they have a legitimate reason for hiring only Asians to work in their restaurants. Other examples can be found in the mandatory retirement ages for bus drivers and airline pilots, which are required for safety reasons.

It is important to know this term because you may come across it, after confronting an employer about a potentially discriminatory practice. If your employer does claim that it is not discriminating against you because there is a BFOQ related to your job, you can question that defense because it is the employer’s responsibility to prove BFOQs are "reasonably necessary" and that there is no reasonable alternative with a lesser impact on the protected classes (e.g., minorities, women, the disabled, etc.).

Source: en.wikipedia.org/wiki/Bona_fide_occupational_requirement

Resignation Letters: Resist the Urge for Melodrama!

Mary J. Blige sang it best, when she blurted out…No More Drama! So, try not to be highly emotional, when you’re writing your resignation letter! This is especially true for those of us that are forced to resign because of race-based misconduct at work.

Yes, you may be justified in being upset or angry, etc. However, those legitimate emotions can be twisted by your employer and can be used against you in the future. Remember, your official resignation is in writing. Therefore, it can come back to haunt you. So, choose your words carefully. Here are some tips:

--don’t forget to include the effective date of your resignation;

--give 2 weeks notice—unless there are extenuating circumstances;

--write professionally--stick with the facts;

--spell-check and grammar check your resignation letter;

--don’t use profanity;

--don’t make threats of physical violence;

--don’t make threats of legal action—let your employer be surprised;

--don’t attach any old or new evidence that will be used in your complaint;

--don’t make any new accusations—at this point, save all issues for your complaint;

-- explain why you are ending your employment. If you are resigning for cause, briefly state the cause (harassment, falsely accused of performance deficiencies or insubordination, retaliation, etc.);

--don’t write about what your employer should have done—although you can briefly state that your employer failed to prevent or correct misconduct, etc;

--don’t write a 100 page resignation letter—keep it as short as possible;

--CC: HR and the Director of your department/unit (assuming your resignation is sent to your immediate supervisor); and

--inquire about the date for your exit interview (and plan to be truthful at the meeting with HR).

Remember: If you are resigning due to race-based misconduct, don’t let fear cause you to write a resignation letter that sounds like a glowing thank you letter (e.g., I appreciate the opportunities provided to me by the company.) If you were forced to resign, you should not portray yourself as a happy camper on the way out the door. Your employer will gladly show your smiley face resignation letter to any investigator or jury and will state that it is proof that you weren’t subjected to an offensive or hostile work environment.

So, don’t play yourself worrying about burning bridges as you exit the company. If you were dealing with race-based issues, they won’t be hiring you back anyway! Focus on preserving the integrity of your complaint.

Resignation Letters: Keep to the Point!

Mary J. Blige sang it best, when she blurted out…No More Drama!

The same is true with resignation letters. If you're resigning because of race-based discrimination, harassment, and/or retaliation (constructive termination), you've probably already had more drama than you can stand. So, try not to be highly emotional, when you’re writing your resignation letter!

Yes, you may be justified in being upset or angry, etc. However, those legitimate emotions can be twisted by your employer and can be used against you in the future. Remember, your official resignation is in writing. Therefore, it can come back to haunt you. So, choose your words carefully. Here are some tips:

--don’t forget to include the effective date of your resignation;

--give 2 weeks notice—unless there are extenuating circumstances.You're employer can claim that you didn't give enough notice to cover the workload and it resulted in missed deadlines, etc., which they may falsely claim is consistent of your behavior throughout your employment;

--write professionally--try not to be argumentative;

--spell-check and grammar check your resignation letter;

--don’t use profanity;

--don’t make threats of physical violence;

--don’t make threats of legal action—let your employer be surprised;

--don’t attach any old or new evidence that will be used in your complaint;

--don’t make any new accusations—at this point, save all issues for your complaint;

-- explain why you are ending your employment. If you are resigning for cause, briefly state the cause (harassment, falsely accused of performance deficiencies or insubordination, retaliation, etc.);

--don’t write about what your employer should have done—although you can briefly state that your employer failed to prevent or correct misconduct, etc;

--don’t write a 100 page resignation letter—keep it as short as possible;

--CC: HR and the Director of your department/unit (assuming your resignation is sent to your immediate supervisor); and

--inquire about the date for your exit interview (and plan to be truthful at the meeting with HR).

Remember: If you are resigning due to race-based misconduct, don’t let fear cause you to write a resignation letter that sounds like a glowing thank you letter (e.g., I appreciate the opportunities provided to me by the company.) If you were forced to resign, you should not portray yourself as a happy camper on the way out the door. Your employer will gladly show your smiley face resignation letter to any investigator or jury and will state that it is proof that you weren’t subjected to an offensive or hostile work environment.

If you weren't happy as an employee, don't pretend that you were! Don’t play yourself by worrying about burning bridges as you exit the company. If you were dealing with race-based issues, they won’t be hiring you back anyway! Focus on preserving the integrity of your complaint.

Fight Your Employer's Delay Game!

If you were forced to file an internal complaint against a coworker or supervisor alleging race-based discrimination, harassment, retaliation, etc., you probably learned a thing or two about how an employer (read: The Human Resources Department) can drag out an internal investigation.

Instead of engaging in a prompt and serious investigation of the facts, many an HR team will pursue a strategy of delay and then deny. They will prolong any investigation, hoping the employee will just let the issue die. Or, perhaps they will use the delay to retaliate against the employee, with the hopes of forcing them to resign (constructive termination) before the investigation is complete. Sometimes, the delay is used to give the false assurance that the investigation is being conducted thoroughly — leaving no stone unturned. The reality is that the company may be just using that time to come up with a counter defense to all of an employee’s arguments and evidence that validate illegal mistreatment in the workplace.

After all the hemming and hawing, these delayed investigations sometimes end up with the internal investigating team telling the complaining employee that they couldn’t find any evidence of wrongdoing on anyone’s part. Or, if HR acknowledges wrongdoing, HR may downplay the impact of any offending and illegal actions that the victim was subjected to. This may be followed by the employer promising the complaining employee that the offending employee or supervisor will be “dealt with.” In other words, the complaining employee may be promised that corrective steps will be taken to rectify the race-based harassment, etc.

But, what happens, when an employee is promised that misconduct will be rectified, but the employer does nothing to correct the behavior of the offending employee? And, is there something else afoot, when it comes to these delays in internal investigations?

When it comes to filing a complaint with an external agency (e.g., The Office of Human Rights or the EEOC), employees only have a certain number of days—after a race-based incident—to file a complaint. For instance, an employee may have 90 or 180 days to file a complaint with an outside agency.

So, the reality is that some companies will try to delay any internal investigation with the hopes of causing an employee to miss deadlines with outside investigatory agencies. If an employee files a complaint and it is accepted based on the fraudulent delay of the employer, the employer may try to argue that the complainant missed the deadline and, therefore, the entire investigation/complaint should be dismissed on that basis.

However, according to legal decisions an employer can’t engage in acts or omissions that serve to lull a complaining employee into foregoing a prompt attempt to vindicate his/her rights. Specifically:

“If an employer actively misleads an employee into missing the deadline for filing a charge by dragging out its investigation and assuring the employee that the harassment will be rectified, then the employer will be “equitably estopped” from challenging the delay.” (Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363 (D.C. Cir. 1998)

Also…

“An employer’s affirmatively misleading statements that a grievance will be resolved in the employee’s favor can establish an equitable estoppel.” (Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1531 (11th Cir. 1992)

So, if your employer has engaged in behavior that caused you to miss a complaint filing deadline with an outside agency, you can argue that you missed the deadline because you were misled and delayed by the intentionally manipulative actions of your employer. If the employer tries to get the complaint thrown out, based on the missed deadline, there is legal precedent for overruling that argument.

LEGAL BRIEFS: BREAKING NEWS!

This isn't work related, but it fits perfectly with issues of race being covered on THE BLACK FACTOR blog...

The Associated Press is now reporting that a judge has declared that Genarlow Wilson should be released from prison. Many of you may be familiar with the case of Genarlow Wilson (Black), who was sentenced to 10 years in prison for receiving oral sex from a 15-year old girl, when he was 17 years old. Yes, 2 teens engaged in consensual sex led to one of the teens being labeled a rapist! But, Georgia state law said that Mr. Wilson committed an aggravated sexual act.

Genarlow Wilson was a good student, an athlete, and had never been in any legal trouble—before this incident. Yet, he was sentenced as though he were a rapist. In addition to the 10-year sentence, Mr. Wilson was to be put on a sex offender registry FOR LIFE! His lawyer has been arguing that his sentencing was unconstitutional and grossly disproportionate to the crime.

After Mr. Wilson received such a ridiculous sentence, the Georgia state legislature changed the law, so that no one would ever again receive such a stiff sentence (under these circumstances—not to be applied to pedophiles).

Mr. Wilson has been appealing his case and trying to get his conviction overturned because the crime he was convicted for was reduced to a misdemeanor. However, this occurred AFTER he was sentenced. Despite the change in the sentencing guidelines for the sexual contact, Mr. Wilson—now 21 years old—was told he still had to serve a 10 year sentence according to the previous guidelines.

Intense media scrutiny of the case and pressure from the community likely led to today’s recommendation.

The judge changed Mr. Wilson’s sentence to 12-months with credit for time served. Since Mr. Wilson has already served 2 years in prison, he should be a free man!! The judge’s decision included this: “The sentence is void.”

If the state files an appeal, Mr. Wilson will probably not be able to get out of jail. The state has 30 days to appeal the judge’s decision. Hopefully, Mr. Wilson will be walking out of jail today!!

Reader Recommended Resource

A reader submitted a good web site for getting the latest news and regulations in EEO/Affirmation Action. Check out The OFCCP Blog at http://ofccp.blogspot.com/

Employers Should Look for Patterns of Improper Behavior in the Workplace

Establishing patterns of prior bad acts in the workplace can help an employee demonstrate that their employer had indications that a coworker, supervisor, etc. had a history of engaging in illegal misconduct, but did nothing to prevent such behavior from happening—again. Establishing patterns of prior bad acts can also demonstrate that an employer not only ignored a problem employee or manager, but that they also may have never even attempted to correct the behavior. For instance, the harasser was never put on any warnings, placed on probation, sent to training, demoted, transferred, suspended, etc.

But, establishing patterns of negative behavior is not just the responsibility of the victim of harassment, retaliation, etc. The employer is also obligated to examine the pattern behavior of employees. When it comes to patterns of negative behavior, the EEOC says:

“Reasonable preventive measures include screening applicants for supervisory jobs to see if any have a record of engaging in harassment. If so, it may be necessary for the employer to reject a candidate on that basis or to take additional steps to prevent harassment by that individual…it is advisable for an employer to keep records of all complaints of harassment. Without such records, the employer could be unaware of a pattern of harassment by the same individual. Such a pattern would be relevant to credibility assessments and disciplinary measures.”

This all goes to show how important it is to look for prior bad acts by a harasser. But, at the same time, it shows how important it is to notify your employer/make a formal complaint of harassment, if you believe you are being subjected to a hostile and offensive work environment.

Think of it this way…if you suffer in silence, you embolden your enemies—as our President, George W. Bush, is fond of saying.

By filing a complaint against your harasser, you help to create a history of your harasser behaving in an illegal manner. If your harasser has already been on the receiving end of harassment complaints, their record of this illegal behavior will be extended to the present—as opposed to possibly years ago.

Just the fact that you made a complaint can go a long way towards helping another employee, who may find that they have the same problem with this same employee—in the future. It’s up to each of us to hold racist employees, harassers, etc. to account.

Still, even without complaints, employers are responsible for any illegal behavior that was so prevalent that members of authority/management had to have known the illegal abuse was happening!

VIVA LAS VEGAS!

I'm really sorry for not having any posts over the past few days, BUT I was offered a free last-minute trip to Vegas and I couldn't turn that down. I didn't have to pay one dollar for anything! I just got back to NY this morning. I'm a little jet-lagged, but I'm ready to start posting again. I'll have new posts starting tomorrow. Thanks for sticking with The Black Factor!