Monday, February 26, 2007
Thursday, February 22, 2007
Harassment by a Co-worker or other "Non-Employer"
Just because an employee is not being harassed by someone in authority doesn’t mean that employers aren’t liable for any damage caused by the mistreatment. So, if you’re being harassed by someone senior to you (with no authority over you), someone who’s the same level as you or even by someone that is junior to you, your employer may still be liable for damage to your career, etc.
In the decision for Faragher, 118 S. Ct. at 2289 the Supreme Court said, “When harassment is perpetrated by the plaintiff’s coworkers, an employer will be liable if the plaintiff demonstrates that ‘the employer either provided no reasonable avenue for complaint [you didn’t have a way to complain of mistreatment] or knew of the harassment but did nothing about it.’”
On top of that, the EEOC states that an employer is liable for harassment by a co-worker or non-employer if management knew or should have known of the misconduct, unless the employer can show that it took immediate and appropriate corrective action.
So, if your coworker (or any workplace “non-employer”) is harassing you, your employer may be liable for punitive and/or other damages if they knew or should have known about your mistreatment because it was so prevalent and out-in-open in your workplace, but they did nothing about it! If your employer did take the right and immediate corrective actions against the person harassing you (e.g., transferring the perpetrator, firing the perpetrator, etc.), you may not be able to convince the court that your employer is liable for any damages.
Tuesday, February 20, 2007
Legal Aid Society - Sample Employment Letters
Here are some links to state labor laws:
State Labor and Employment Laws (Fifty States) http://www.law.cornell.edu/topics/Table_Labor.htm
State Law Statutes by Topic (Fifty States)
Class Action Suit in Stop and Frisk Searches
I had a recent post containing statistics on the searches, which showed that far more NY Blacks are stop and frisked compared to Whites. New statistics show that less than 10% of all stop and frisk searches ended with a formal accusation against a citizen.
If you stop enough people of any race, you could end up formally accusing less than 10% of those individuals with a crime. So, this tactic pretty much amounts to guessing (and the harassment of many innocent citizens).
Apparently, the number of searches in NY increased after September 11th, so it’s interesting that Blacks, and not those appearing to be Middle Eastern, are the one suffering more searches. The investigation of stop and frisk searches found that one precinct, in the Bronx, stopped 2,747 Blacks and only arrested 3 individuals out of such a high number of searches. Clearly, with results that poor, far too many law abiding citizens are falling victim to the searches. I’ll keep you posted on this law suit.
Source: NY Daily News, Monday, Feb. 19, 2007, Frisks are High Tix Risk is Low, by Benjamin Lesser and Adam Nichols
Black Men and Their Big...
Well, according to the story, the poster wasn’t certified by the MPAA because the MPAA were “prudish about showing the [Black] actors in their Speedos." In fact, the MPAA even accused the movie studio of digitally enhancing the size of one actor’s you-know-what. So, now I’m definitely going to have to see this film! The actor in question is the son of Diana Ross, Evan Ross.
The movie studio had to give the MPAA the original film in order to prove that the image of his undercarriage was legit!! The MPAA reversed their decision on certifying the poster. I guess this was an example of a stereotype being for real.
Thursday, February 15, 2007
Tips for Fighting False Allegations About Your Job Performance
I’ve had this tactic used against me and have seen it used against other Black employees. In one case, a Black male was complaining about discrimination and sexual harassment, in another case, a Black manager was the victim of retaliation for complaining about racially insensitive remarks made by a White manager, and, in my case, I participated (truthfully) in both internal and external investigations about these race-related issues. So, retaliation—among other things—was the company’s response to me, when I came up for a promised promotion.
I’d like to give you some quick tips on dealing with false attempts to slander your reputation, regarding your work ethic. These things worked well for me.
--Quote from performance evaluations. Use all relevant comments about your job performance that show you have a pattern of successfully and professionally performing your duties. Don’t forget to pull out quotes that speak to your personality/temperament at work. For instance, you could quote from a recent performance review where you are credited with being patient and flexible, which contradicts a sudden and false accusation that you are rigid and demanding.
--Print up copies of emails or cards that speak to your job performance, especially kudos from clients. This will also demonstrate you have a pattern of successfully and professionally performing your duties and that staff are aware of your positive contributions to your projects/assignments.
--Get signed statements from coworkers that show you are successfully performing your duties. If possible, get your coworkers to have the statements notarized.
--Print up requests for you to work with other staff – why would you be invited onto projects if it were known that you were underperforming?
--Ask specific questions about all blanket statements about your job performance. For instance, do not let someone accuse you of being rude without asking for examples and situations where you’ve supposedly shown this behavior.
--If someone is suggesting you have a pattern of exhibiting poor behavior or poor performance, ask (in writing) why this issue is just being brought to your attention and why you were not offered any suggestions for improving your performance. Remember, if you are not told of performance issues, and are, therefore, led to believe that there are no issues, you can’t accurately gauge your performance and live up to the expectations of your position. So, the onus for the alleged issue being a so-called continuing problem is on your supervisor/manager because they did not inform you of any alleged problems at work.
Tuesday, February 13, 2007
LEGAL BRIEF: Only the Mental State of the Harasser is Relevant!
--Blame the complainant by turning the victim into the bad guy and by pointing out alleged deficiencies with the victim’s behavior. In other words, they will justify why the victim was targeted for mistreatment.
--When backed into a corner, lay all of the blame on the offender and declare—as loudly as possibly—that the company’s higher-ups would have never tolerated illegal misconduct and would have immediately corrected inappropriate behavior, if they had only known about it.
I’d like to focus on #3 for a moment. You see, employer’s like to put all of the blame on a coworker or supervisor, after they see there isn’t any reasonable way they can claim that illegal misconduct didn’t take place. By laying blame on one or more individuals, many employers believe they can escape liability. They will try to make the illegal misconduct look like an anomaly and something that is extremely atypical of what would normally occur in their workplace.
So, the employers will be spitting all of this venom and fire about how horrible the offender was and how they were a rogue employee that went off the rails. The employers will position themselves as rationale, fair, and helpful in the hopes they can escape liability.
But, in the Supreme Court decision for Kolstad v. American Dental Association, 119 S. Ct. 401, (1998) it says, “The test for imposition of punitive damage is the mental sate of the harasser, not of the higher-level officials…”
Therefore, it doesn’t matter how reasonably or fairly the employer may have acted or would have acted; they are still liable for the illegal behavior of their staff, supervisors, etc.
The EEOC states that:
“…an employer is liable for punitive damages if its supervisor commits unlawful harassment or other discriminatory conduct with malice or with reckless indifference to the employee’s federally protected rights.”
So, don’t let an employer sweet talk you into believing that you have no way to seek remedies outside of whatever they may or may not decide to do—in the workplace—to your harasser. Your employer may still have legal liability and may have to pay punitive damages to you, depending on the specific circumstances.
Black Manager Instructed to Treat Problem White Employee "Like a Puppy"
Anyway, he was exhibiting some very unprofessional behavior one day (shouting and screaming in someone’s face), so the Black manager called him into her office to tell him that this was unacceptable. To make a long story short, he picked up a chair, stared her down, and then threw the chair against the manager’s office wall! But, you know, he really wanted to throw it at the Black manager.
The Black manager reported him to his direct supervisor (also Black), who admitted that she could believe he would throw a chair and that she was sure he did throw the chair against the wall.
wait for it…
This manager had an “agreement” with the White employee that prevented her from writing this man up. It was explained that this White man had a “bad childhood.” So, his direct supervisor informed the Black manager that she should do two things:
1. Wait until he takes his medication—and “let it take hold”—before approaching him to talk about work or to request something.
2. “Talk to him like he’s a puppy.” This was also connected to his childhood turmoil.
Please tell me any scenario you can think of in which a Black man or woman could throw a chair at a White manager and STILL BE EMPLOYED!!!
Please also tell me any scenario where a Black person’s difficult upbringing would guarantee them free reign to engage in violent outbursts at work and STILL BE EMPLOYED!!!
You gotta love the double-standards. And, you've got to love how some Blacks help perpetuate the cycle of racism that takes place in many offices. It was easier for this woman to provide corrective steps for the Black manager than it was for her to step to the unprofessional White employee. Keep the stories coming, folks!
Little Black Girls Still Prefer White Dolls!
Flash forward to today and little Blacks girls (4 to 5 years old and Harlem residents) are still voicing a preference for white dolls, despite how many Black/minority dolls are available on the market today. The study also found that these little girls are also associating “blackness” with the word “bad” and other negative feelings.
So, it begs the questions:
What is going on in Black households that many our beautiful children CONTINUE to corrolate "beauty" with whiteness? And, why must Black still "stay back"?
You know, I can remember babysitting a little girl (she was around 4 yeas old at the time) who told me that she didn’t want me to put her Black doll in the bathtub with her. She was having a party in the tub and only wanted the White dolls to come. When I tried to put the Black doll in the tub, she told me that the doll wasn’t “invited.” I asked her why and she told me the Black doll “fights a lot” and was “loud.” She refused to put it in the tub. I’d say the year was about 1988. I spent the entire bath time experience trying to get this little girl to say something nice about the Black doll. And, it never happened! We’ve still got a lot of work to do, as a people.
Getting back to A Girl Like Me, the film is about 7 minutes long and can be seen at: You can watch "A Girl Like Me" in its entirety at www.reelworks.org..
BLOGGER NOTE: I grew up in a household (poor and in the 70s) where we were not allowed to have White dolls because my mother wanted me and my two sisters to have dolls that looked like us. We had an entire family of Black dolls, from the baby to the gray-haired grandparents! We had Black Polly Pretend dolls and Black Dancerella dolls. I don’t remember ever feeling I was supposedly missing out on something, by not having the latest doll—in the White version. Although I will admit that my sisters and I did have one Barbie accessory—the Barbie townhouse—which was used as a place for our Black dolls!
But, it wasn’t just about dolls in my house. My mother also painted/colored any White faces on our birthday cards, so they would look like little brown-skinned girls. She’d do the same with decorations. Our Santa was Black. And, Jesus looked just like us!
Early childhood images and other factors shape our perceptions of ourselves and our race.
What is your childhood experience with dolls and “blackness” as you were growing up? Did you receive positive reinforcement on your race, including on defying standards of typical beauty? Or, was race a non-topic in your household? What do you tell your daughters, nieces, etc. about standards of beauty/appearance?
Friday, February 09, 2007
My Sister's Skirmish with an Ignoramus at Work!
She begins asking around the office to see if anyone saw my sister, the only Black worker, “go into my mailbox and take anything out.”
So, not only was she a racist to assume that the sole Black person in the office stole something from her, but she was planting seeds of doubt in other workers’ heads about my sister’s trustworthiness.
To take it to the next level, another White woman yells across the room to my sister, in front of visitors, “Stephanie [my sister’s name], did you take something out of Leia’s mailbox?” And, that was it. My sister went right up to Leia to confront her with the following:
--Going in someone’s mail, unauthorized, is criminal behavior.
--Don’t ever go behind my back and accuse me of stealing from you.
--If you have something you want to know, ask me yourself!
--There is absolutely nothing anyone could send you that I would be the least bit curious about, so I have no interest in your mail.
--Why didn’t you ask any of the White people in the office if they went in your mailbox?
Well, Leia had nothing to say, until she thought of this gem, “I didn’t ask if they saw you in my mailbox, I asked if they saw any visitors go in my mailbox.”
So, my sister was supposed to believe that the visitors were known by the collective name of “Stephanie,” which is the name she used. She asked if anyone saw “Stephanie” in her mailbox.
Her next comment was, “Well, it’s just that I’m expecting something really important and I don’t see it.”
Okay, heifer, you’re expecting it. That doesn’t mean the mailman delivered it. That doesn’t mean that someone else didn’t take it or that it wasn’t placed in the wrong mailbox. There were so many other scenarios to account for her not having her mail, but the first thought was that her Black coworker took it. And, that shows just how easily racial stereotyping can cause issues at work. People love to scream about race cards and sensitive Black people, but I don’t think anyone would appreciate being wrongly branded as a thief or POTENTIAL THIEF—which is just as bad. Every time something comes up missing, who’s going to be looked at? That’s why it’s a big deal.
FYI: The boss didn’t appreciate the question either and confronted Leia and the woman that shouted the question across the room about their behavior and accusations. They, of course, deny singling my sister out. But, they couldn’t name a single person they asked about the mail—other than my sister!
In case you’re wondering what happened to the mail:
The mail was sitting, down stairs, on another White woman’s desk! The mail was on that desk for 3 days! So, my sister was getting blamed because one White woman had been sitting on another White woman’s mail. You gotta love it!
Thursday, February 08, 2007
Immediate Response Doesn't Always Negate Liability!
Finally, the employee can’t take the abuse anymore and goes to HR to complain about the supervisor’s behavior. HR takes quick action against the supervisor. For instance, they demote him and require him to go to sensitivity training.
Question: Is that response good enough to resolve the situation?
Answer: Maybe not!
Even though the company quickly responded to the complaint and took action against the supervisor, the problem is that they waited for the employee to complain about mistreatment before they did anything about it.
According to a decision in Dees v. Johnson Controls World Services, Inc., 168 F. 3d 417, 422 (11th Cir. 1999):
“… [an] employer can be held liable despite its immediate and appropriate corrective action in response to a harassment complaint if it had knowledge of the harassment prior to the complaint and took no corrective action.”
The bottom line is that Federal law does not require that an employee complain about mistreatment because some employees may have a reasonable fear of complaining out of fear of retaliation, etc. For instance if they saw another employee mistreated after complaining of workplace abuse, it would be reasonable to remain quiet, while experiencing mistreatment. So, legally, there is a hope that employees complain about illegal mistreatment, but there is some flexibility on this.
Also, all members of management and authority in a company have an unwritten requirement to report workplace abuse of employees, if they have knowledge of potential misconduct (e.g., witnessing it or overhearing conversations about it, etc.).
So, an employer can’t just sit on its hands and wait for employees to complain about a problem coworker or manager before taking action against the offending person. They can fire an offending employee, but if they knew what was happening and allowed misconduct to continue, they may be legally liable for damages, etc. that occurred, while they did nothing to correct the abuse.
Black on Black Discrimination
So, it was funny, when I spoke to an ex-coworker last night, who was complaining about the President/CEO of the company he is resigning from—today! The President/CEO is a Black woman, but, apparently, she refuses to put Black people into the highest level positions.
In fact, she preferred promoting a Hispanic into the company’s CFO job, even though female staff made complaints about his “very hands on” approach to business and even though there were complaints about his fiscal accounting (read: he had shady math). I’m told none of this mattered. The President/CEO wasn’t putting a Black person into that type of job because she had problems “trusting us.” In other words, she had trouble trusting Black workers and senior managers.
I’ve been told that her biggest business accounts were found and won by a Black man! So, her mistrust is based on what?
Yes, some of us, even business owners and executives, have issues! This example reinforces that Blacks (and others) can intentionally discriminate against their own race.
Tuesday, February 06, 2007
"A Preference for Whiteness"
In a government study, conducted by Joni Hersch, a law and economics professor at Vanderbilt University, 2,084 legal immigrants to the United States were surveyed and it was found that those with the lightest skin earned an average of 8 percent to 15 percent more than similar immigrants with much darker skin.
"On average, being one shade lighter has about the same effect as having an additional year of education," Hersch said.
Other researchers said the findings are consistent with other studies on color and point to a skin-tone prejudice that goes beyond race. When considering immigrants with similar English-language skills, education, etc., skin tone still seemed to be a factor in earning power.
"I thought that once we controlled for race and nationality, I expected the difference to go away, but even with people from the same country, the same race — skin color really matters," Hersch said, "and height."
Although many cultures show a bias toward lighter skin, Hersch said her analysis shows that the skin-color advantage was not due to preferential treatment for light-skinned people in their country of origin.
She said that the bias occurred in the U.S.
Economics professor Shelley White-Means of the University of Tennessee at Memphis said the study adds to the growing body of evidence that there is a "preference for whiteness" in America that goes beyond race.
William Darity Jr., an economics professor at the University of North Carolina, said Hersch's findings are similar to a study he co-authored last year on skin tone and wages among blacks.
"We estimate that dark- or medium-skinned blacks suffered a discriminatory penalty of anywhere from 10 percent to 15 percent relative to whites," he said. "This suggests people cue into appearance and draw inferences about capabilities and skills based on how they look."
Darity said it is not clear whether the bias is conscious or subconscious.
BLOGGER COMMENT: I worked at the corporate headquarters for a bank where color did more than just impact what we were paid, it also impacted where we sat in the office. I kid you not, the light-skinned Blacks sat up front and every medium-skinned and dark-skinned Black person sat in the very last offices in our department. We had dark-skinned Blacks making damn near six-figure salaries “joking” about being a darkie in the back of the bus. Everyone noticed it. Even a few bold White coworkers mentioned it aloud. Color impacts a lot in the workplace, including perceptions about attitudes. I’ve noticed that the darker Black people are, especially Black women, the more frequently comments about “bad attitudes” seem to come up. That's not to say we all don't hear that comment--regardless of color--just that the desire to jump to that stereotype may be a bit faster with darker people.
Source: The Associated Press and MSNBC.com, http://www.msnbc.msn.com/id/16831909/
The NYPD Stops and Frisks More Blacks than Whites!
Ah, the shady Black man stereotype rears its ugly head again! And, it’s been used as a defense by White cops in cases such as the Amadou Diallo shooting, the Sean Bell murder, etc.
There’s always a Black man that walked, talked, reached for x, y or z, and/or did something else that could be categorized as stealthy and suspicious. But, when you’re a racist or a cop who buses himself in from a predominately White neighborhood to police Black neighborhoods—everything most Black men do looks suspicious! And, this is the problem, folks!
On top of that, simply searching Black men because they are walking in a high crime area is nothing more than racial profiling. That does not qualify as probable cause. Despite those poor excuses, the NYPD had to try at least one more argument to justify the stops by claiming they only stop suspects based on crime victims’ descriptions.
Yeah! I believe that. Just like I believe that all Black people look alike! And, when all Black people look alike you can stop whomever you like. Right, cops?
It reminds me of something my friend told me after jury duty. She served on a jury where a White detective testified that he saw a Black man in a car. This is the Black man that was on trial for selling drugs. The detective didn’t say he saw a Black man that fit the defendant’s description. He didn’t provide skin color, hair color, hair style, clothing description, facial hair, features, etc. He just said it was a Black man. Everyone in the jury deliberation tried to argue with my friend that the man was pointed out and described by the cop. My friend said, “No, he didn’t point him out. He just said he saw a Black man in a car outside the building. He’s a cop that does surveillance all the time. He’s used to testifying and providing complete descriptions. So, why didn’t he point him out and why didn’t he write a description?”
No one agreed with my friend, so one White person said, “Let’s go back to the transcript. The description is in there.” Well…
They went to the transcript and saw that the detective only said was that there was “a Black man” in the car. He didn’t describe the defendant or anyone else. He just noted that he saw one Black man sitting in a car in a city with more than a million Black men! But, people heard what they wanted to hear—that this defendant fit some description of a suspect.
And, that mindset is why these stop and searches just don’t pass the smell test. “Furtive” behavior is too subjective, especially when you have cops that believe Whites rarely display this behavior and when you have a society that believes that Blacks are prone to appearing suspicious and to be engaged in illegal activity—especially when they could just be sitting in a car!
Source: NY Daily News, by Alison Gendar, Saturday, Februrary 3, 2007, NYPD Frisked Blacks at 5 Times Rate of Whites
Monday, February 05, 2007
LEGAL BRIEFS: CONSTRUCTIVE TERMINATION
But, the legal terminology we should use is that the person was a possible victim of “constructive termination.” So, I want to take a quick look at the two types of termination, actual and constructive.
When you are actually fired by your employer, you are notified in writing or verbally that they don’t want to see your Black a** no more! Yes, let me be real on that.
Constructive termination is when an employee resigns because their company or one or more of their representatives, such as a supervisor, director, etc., is intentionally creating a situation where the employee’s work environment is so hostile and intolerable that there is no way the person can stand to show up on the job anymore. And, the employer would have known that the person would have been compelled to resign based on what was going on at work. In those cases, it can be argued that the worker was a victim of constructive termination. In other words, they were forced to resign because it was the only reasonable choice, considering the circumstances.
To give you an example of constructive termination, I’ll describe what happened to a friend of mine, a manager. She was stripped of her staff, she was asked to clean the company’s three kitchens, she was forced to shred paper for days at a time and to break apart meeting folders, she was asked to wear a head scarf to serve clients food, she was given extremely menial tasks, and she was being demoted—at the time she resigned. She is now seeking legal remedy based on constructive termination among other violations of her rights. So, use the proper terminology. If you were run out of your job, say that you were the victim of constructive termination and prove your case!
FYI: Isolated acts of hostility or misconduct wouldn’t justify the accusation against an employer that there was constructive termination, but a continuous pattern of intolerable behavior would certainly support an employee’s claim that they were forced to leave their job.
A Black Man Can Walk and Talk at the Same Time!
The Program: Conservative Sean Hannity’s Radio Show
The Culprit: Crack fiend-looking Ann Coulter (allegedly a writer, political pundit, etc.)
The Statement: When discussing the qualifications and popularity of Democratic Senator Barack Obama, the crack-friend had this to say:
“I do think it does show -- it further confirms my point that Democrats are racist, and they're just stunned to find a black man who can walk and talk.”
I guess the strung-out looking commentator has solved the puzzle. The Democrats are only giving Senator Obama such attention because he can walk and chew gum at the same time!
So dark the con of man!
Thursday, February 01, 2007
Figure Out Who You Are and Stick With It!
Unfortunately, with Black workers, the extra burden of showing assimilation often causes even more drama and prompts even more personalities to push to the forefront. While talking to White staff on our job, we may use our phone operator, professional voice in an attempt to “sound educated” or to “sound White.” Or, with some White staff, we try to present ourselves as the most educated person in the room because we feel the need to impress them and to make ourselves seem superior to other minority staff. Or, we act more ghetto or street, when dealing with younger White coworkers that we think are “cool” because they’ve made sure to tell us they like hip-hop music or something else about Black culture.
The list of the different personalities we show can go on and on. The entire thing is completely schizophrenic and gets back to the quote from my friend’s dad…FIGURE OUT WHO YOU ARE AND STICK WITH IT!
I once had a coworker, a manager, warn me that people might not take me seriously because I seemed too happy and content all the time. She told me that, on the advice of her father, she always wore a serious expression, didn’t laugh much, and made very few jokes at work. She thought it would make her more successful and advised me to mimic her behavior.
I had a coworker, who was chastised on a performance review for not being frenetic enough. He was actually told that he should rush around the office more, to show that he was working hard and was tackling his work in a serious manner. Now, he hadn’t missed deadlines, etc. But, his manager just wanted him to look like he was always involved in some sort of crisis. He was actually told, “All of us seem a lot busier than you do.” But, he had an equal workload. He was just better than they were at managing his time.
I had a coworker who was routinely told that she was aloof, simply because she didn’t chat with staff in the hallways. She was even given the example where she should have joined a conversation about a TV show that was taking place near her office. Well, she didn’t stop to join the conversation because she didn’t watch the show and had work to do. She was told that, despite that, she needed to make an effort to “chit-chat” more with staff. This was conveyed to her as a chronic flaw, not engaging in office gossip and non-work related conversations. There weren’t any criticisms of her work, just that she didn’t socialize enough.
Guess what? After being criticized and receiving recommendations, like the ones just mentioned, none of us did a damn thing to change our behavior. We were friends, not only because we had a lot in common, but because each of us were people that knew who we were and who liked who we were. I wasn’t going to stop being a happy person for a job. My coworker wasn’t going to run around the office, working up a sweat, for a job. And, my other coworker wasn’t going to ignore work, to have personal conversations with staff that she didn’t particularly care for—for a job!
People, especially managers, at work may attack you and criticize you for things that aren’t work-related. And, that is not their place. If you are old enough to be in the workplace, you are old enough to define, for yourself, who the hell you are. Defining who you are does not require committee input and should not be put up for a vote. For each of us, fundamental changes in who we are only take place—and only last—if we truly believe in the changes we are making. So, don’t drink the Kool-Aid! Figure out who you are and stick with it! If there are things you decide to change, let them be because you feel they will make you a better person, etc. and not because someone at work feels they can dictate your life to you.
Never forget this: Stupid is as stupid does! And, miserable is as miserable does. There are so many people in the workplace that have sold out who they are that they absolutely don’t want to see someone that is able to maintain the core of what makes them unique. By being yourself, and being successful, you become a person to be envied by all of the sell-outs and lowlifes you might work with.
Labels: tips and strategies