Thursday, August 30, 2007

Same Race Discrimination

At two different jobs, I reported to Black men, who would repeatedly make statements based on the same race-based stereotypes that Whites use against Blacks. For instance, they would say that Black workers were lazy and had to be closely watched because they were prone to goofing off (in other words, Black required a plantation style overseer in order to do their jobs). They would also make comments about Black workers being very negative, angry, and defensive. If there was something negative to be said about Black people, they would often beat White people to the punch.

One of these men was the Director of a department and the other individual was a senior-level manager. Based on their words, is it possible that these men would discriminate against members of their own race? Yes! They seemed to have a palpable bias against their own race. The comments were extremely offensive and, of course, contributed to an offensive environment at work—the same as if a White person had been making the remarks.

But, what’s interesting is that one of these men behaved in a discriminatory manner and one did not—although they both made comments that might make any reasonable person believe that they both were unable to be fair and might act out in a discriminatory manner. Despite the anticipation that both of these individuals might stick it to me and other Black staff, the senior manager always went to bat for me and was very supportive of me as far as helping me gain new skills and opportunities, as well as in getting me substantial salary increases.

However, the Director created a more hostile work environment for Black staff, especially the younger Black employees. He would call young staff into one-on-one meetings to be chastised and reprimanded over the most minor issues. These lectures and tantrums would last 30 minutes to an hour—per session. He tried to control what Blacks did on their breaks…their free time. He would give Blacks assignments and then disturb our work effort by calling us constantly or hovering over our shoulders to see how the work was going.

He would use humiliation as a tactic by openly questioning our intelligence, whether a person was a college graduate or was in college. He said he did this because we always looked confused. I guess he assumed we were confused because he loved to throw around so-called “big” words. If he was as smart as he thought he was, he would have realized that we were looking at him like he was an a**hole—not as though we were confused. The way he treated Black staff was entirely different from the way he treated White staff. He left them alone to do their jobs, gave them instructions and left them to do their work, etc. He reserved his highest compliments for White employees. He was always pushing White staff into highly visible roles that would show them off around the company. He pushed them for promotions. In my opinion, he definitely engaged in disparate treatment of staff.

I’ve already had a couple of posts on this site that confirm that same race discrimination does exist and is just as illegal as discrimination involving people of different races. Comments made by the Supreme Court have shown the position that the race of decision-makers in the workplace may be relevant, but is not controlling. In other words, the Supreme Court has shown an understanding that no one can presume that a person would not discriminate against members of his own race.

The Supreme Court has noted, “[b]ecause of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.”

I know many of us think we have to tolerate what seems to be race-based abuse from Black supervisors, managers, etc. Who’s going to believe the person is motivated by race, right? But, based on the comments by the Supreme Court and based on Federal statutes, you can make a complaint that a Black person is guilty of workplace discrimination. And, then it's up to you to prove your case. Just like any other discrimination claim you want to focus on documentating the facts/collecting evidence, keeping a list of witnesses, who can corroborte events at work, and you should report any issues to HR or someone in authority at the company.

If you suspect that a Black manager, supervisor or other member of authority is discriminating against you, you should pursue the issue in the same way you would if the person were White, Hispanic, etc. You don't have to tolerate discrimination because the perpetrator looks like you!

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Tuesday, August 28, 2007

Education Requirements

One of the easiest ways to keep certain workers in their so-called places is to use education as a qualifier for certain positions—whether or not an advanced degree has anything to do with a person’s ability to perform a job and to be successful. Just look in the classified ads section of the newspaper or perform a job search on a site like Isn’t it amazing how many administrative assistant positions or other low-level or entry level jobs now require a Bachelor’s degree, when for decades they often did not?

In the past, Black workers primarily represented the laborers or we represented the administrative staff at many companies. Historically, many Blacks and other minorities have been denied promotions or have been told we could not transfer into other jobs because we lacked a college degree. Despite this, some Blacks have been able to rise to the level of mid-level management. But, fewer have been able to actually rise to the high-level or executive branches at their companies.

In order to keep the workplace haves as the haves and the have-nots as the have-nots, some supervisors, managers or companies—as a whole—have played the education card to their full advantage. Using education as a justification for refusing to hire, promote, transfer, etc. certain employees is a pretty good bet for a racist supervisor, manager or a company—as a whole—to wager. How many applicants or employees are actually going to officially or legally challenge a workplace claim that they are unqualified for a job because they lack a college degree or an advanced degree?

Furthermore, how many applicants or employees will challenge a claim that they do not have the “right” degree? Yes, there are people who aren’t promoted or hired because they don’t have a Master’s degree…“only” a Bachelor’s. That’s the new workplace game. It involves pushing the education envelope to the point that a Bachelor’s degree is now the basic equivalent of a G.E.D. A Master’s degree is the new Bachelor’s degree (and the minimum required to stay competitive at an ever increasing number of companies). The Ph.D. is the real prize these days. Again, how many workers are going to challenge an employer’s claim that they must have a Master’s degree in order to be promoted or hired for a certain job?

As I’ve written before, I believe the reason for the shift had to do with the fact that more and more Blacks (and Hispanic/Latinos) began to receive college degrees. So, over the years, the ability to stifle certain employees based on education requirements became less effective. And, as a result of increased education by many more minorities, competition during the hiring and promotion process began to become a bit more vigorous. It became tougher to justify why minorities weren’t being placed in certain jobs. The education excuse was watered down to a certain degree. But, that hasn’t stopped some employers from trying, hence the shift in the types of desired degrees for applicants and employees.

Now, I would never argue that employers shouldn’t want the most educated employees they can find. But, the fact of the matter is, many jobs don’t require a college degree. And, anyone who’s spent any amount of time in the workplace can tell you that some of the worst employees have the best education. Receiving a degree (pick a subject) doesn’t give you common sense, doesn’t mean you can work well in teams or lead a team, doesn’t mean you can communicate well (verbally or in writing), doesn't mean you won't violate employment law, and it doesn’t mean you are strategic, forward thinking, a quick learner, etc.

Having a degree doesn’t even mean that you’re extremely knowledgeable in your field—if you were a poor to mediocre student, cheated your way through college or are working outside your area of study. But, as I’ve stated, almost every job these days—no matter how menial or entry level—is requiring a college education. As I was reading up on race and color under Title VII of the Civil Rights Act, I came across this:

Educational requirements obviously may be important for certain jobs. For example, graduation from medical school is required to practice medicine. However, employers often impose educational requirements out of their own sense of desirable qualifications. Such requirements may run afoul of Title VII if they have a disparate impact and exceed what is needed to perform the job.

As the Supreme Court stated in one of its earliest interpretations of Title VII: “History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the commonsense proposition that they are not to become masters of reality.”

And, that's where I stand on the issue. Diplomas shouldn't dictate reality or a person's opportunities in the workplace--not without a LEGITIMATE reason. If your supervisor, manager or other authority at your job is seeking to block your desired career path, deny you a promotion, etc. based on education requirements, please keep in mind that those requirements can be challenged! Two questions you can ask about education requirements are:

1. Is the requirement for a degree out of a business necessity? A business necessity is a practice necessary for safe and efficient organizational operation. For example, an employer can require that an employee have a high school diploma, but that employer must also be able to prove that this is essential to performing the job. Is there some essential element related to a degree that legitimately prevents you from being hired for a specific job, being promoted, being transferred, etc.?

2. Is the requirement for a degree based on job-related factors? Job-relatedness deals with the skills or other qualities that employers say are a requirement for a job. For instance, an employer can legitimately argue that applicants pass a math test in order to get a job working as a cashier because math skills are a job-related necessity for succeeding in that position. Based on the job you are applying for, seeking a promotion for, requesting a transfer to, etc…is their a job-related reason for requiring a degree? Is there a skill gained or other quality only obtained through earning a degree in a specific field (vs. actual experience, for example)? Would the lack of degree automatically prevent you from doing this specific job?

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Monday, August 27, 2007

More on Race and Color Discrimination

All Black workers should be aware of the Federal statutes that currently exist because the statutes are designed to correct the historic disadvantanges and racially-based attacks that Blacks have always been subjected to in the workplace, in our communities, etc. Continuing the theme of the previous post, below is a summation of prohibited actions associated with race and color, under Title VII of the Civil Rights Act:

-- Title VII prohibits the denial of equal employment opportunity because of the place of origin of an individual or his or her ancestors, or because an individual has the physical, cultural, or linguistic characteristics of a national origin group;

-- Title VII prohibits discrimination not just because of one protected trait (e.g., race), but also because of the intersection of two or more protected bases (e.g., race and sex). For example, Title VII prohibits discrimination against African American women even if the employer does not discriminate against White women or African American men;

-- Title VII is violated if race was all or part of the motivation for an employment decision. Racially biased decision-making and treatment are not always conscious. Therefore, Title VII covers not only decisions driven by racial animosity, but also decisions infected by stereotyped thinking or other forms of less conscious bias;

-- Title VII also does not permit racially motivated decisions driven by business concerns. For example, concerns about the effect on employee relations, or the negative reaction of clients or customers. Nor may race or color ever be a bona fide occupational qualification under Title VII. (See the archives for a previous post on bona fide occupational qualifications);

-- Title VII forbids not only recruitment practices that purposefully discriminate on the basis of race but also practices that disproportionately limit employment opportunities based on race and are not related to job requirements or business needs. For example, recruiting from racially segregated sources, such as certain neighborhoods, schools, religious institutions, and social networks, leads to hiring that simply replicates societal patterns of racial segregation;

-- Under Title VII, employers cannot treat persons of different races differently in the hiring or promotion process. Nor may employers use selection criteria that have a significant discriminatory effect without being able to prove that the criteria are job-related and consistent with business necessity;

-- Under Title VII, employers must apply the same selection criteria to persons of different races, and apply them in the same way, giving the same weight to each criterion for each person. The reasons given for selection decisions should be credible and supported by the evidence; and

-- Under Title VII, it is unlawful to disqualify a person of one race for having a conviction or arrest record while not disqualifying a person of another race with a similar record. For example, an employer cannot reject Black applicants who have conviction records when it does not reject similarly situated White applicants.

I will continue to provide a summary of prohibited actions under Title VII throughout the week (for race and color discrimination).


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Friday, August 24, 2007

Race and Color Discrimination

Race Discrimination

Title VII of the Civil Rights Act prohibits employer actions that discriminate, by motivation or impact, against persons because of:

-- race;
-- racial or ethnic ancestry;
-- physical characteristics associated with race (skin tone, hair, height, etc.);
-- race-linked illnesses, cultural characteristics (names, grooming, etc.);
-- perception of race (making a guess about a person’s race);
-- association with a particular race of people (Whites associating with Blacks, etc.);
-- subgroups of people of a particular race (Black single mothers, etc.); and
-- reverse race discrimination.

Color Discirmination

Courts and the EEOC read “color” to have its commonly understood meaning – pigmentation, complexion, or skin shade or tone. Therefore, color discrimination occurs when a person is discriminated against based on the lightness, darkness, or other color characteristic of the person. Even though race and color clearly overlap, they are not synonymous. So, color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity

Multiple protected bases of discrimination can be raised by the same set of facts, both because negative stereotypes and biases may be directed at more than one protected basis at a time, and because certain protected bases overlap considerably. Therefore, a discrimination complaint by an “Asian Indian” can implicate race, color, and national origin, as can, for example, a complaint by a Black person from an African nation, or by a dark-skinned Latino. For Title VII purposes, the question is whether any prohibited factors led to an adverse employment action, alone or combined.

All bases of discrimination that are reasonably implicated by the facts should be included in a complaint of discrimination (e.g., race, color, national origin, religion, sex, etc.). Failure to include all possible bases may result in a court dismissing a legitimate claim. For instance, a person complaining of being subjected to race discrimination may not be able to later bring a suit alleging color discrimination.


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Wednesday, August 22, 2007

Fight Supervisor and Employer Traps

Unfortunately, instead of providing a remedy to correct race-based misconduct (by firing or demoting the offender) some employers will escalate attacks against the victim of the harassment. If you’re being subjected to harassing behavior and a hostile work environment at work, beware of the traps that are often laid by supervisors and/or employers.

When a supervisor or a company decides to go into protection mode, they will sometimes try to create a rock-solid case against the complaining employee. The stronger the case against the employee—even a fraudulent case—the more secure the supervisor or employer will feel about deflecting any allegations that an employee or group of employees has engaged in illegal misconduct.

It’s a bait and switch. The employee goes from complaining about mistreatment to being lured into a position of defending themselves against baseless attacks, which often have nothing to do with the instigating incident. For instance, a Black employee may complain about a White manager using racial epithets and end up in a meeting defending allegations that they (the Black employee) has been habitually tardy to work—an accusation that was never made before they complained. Having been subjected to supervisor and employer traps, I can provide some tips:

1. Keep track of all the false allegations being made against you and guard against the attack by keeping all documentation that proves the allegations are false. For instance, to justify a malicious performance evaluation rating given to me (the lowest offered at our company) my former employer accused me of being unavailable to work on specific projects and they named those projects. They said that the task leaders never knew when I could work or what I was doing.

Unfortunately, for my employer, I had emails from the tasks leaders of those projects stating that our work was put on hold by government contracting officers or that the projects were canceled. The emails even stated that no one on the team should bill any hours to those projects because they were inactive. Therefore, how could I be unavailable for work that was nonexistent? An outside investigating agency now has the claim from my employer that I was not pulling my weight on these projects. But, this agency also has my written evidence that there was no work to be done because work had been suspended or permanently stopped.

Luckily, I saved those emails because those types of emails are important to keep and because my employer was already hinting that they were going to attack my time and work effort on a number of projects. My supervisor was suddenly fond of saying that EVERYONE was “watching my hours” and every “wonders what you do.” She telegraphed the company’s blows (attempted knock-out punches) and I was keeping all documentation related to where I knew the punches would come from.

2. Keep track of false allegations and show how your supervisor or employer is engaging in behavior that would lead you toward engaging in the negative behavior. For instance, a supervisor or employer will sometimes bog a targeted employee down with a lot of extra work. This is done to make it hard for the person to meet deadlines, to encourage mistakes, and to stress out the employee. If you find yourself in this type of trap, you should document all of your assignments prior to the point where you were a target and show how your assignments significantly increased after you became a victim of abuse. You could show how the workload wasn’t spread throughout your department—just to you.

Another example of this would be a supervisor or employer falsely criticizing an employee for not asking important questions, but leaving out the part about how they wouldn’t respond to the employee’s emails or voicemails and refused to have face-to-face meeting to discuss the assignment. In this example, the employee could show documentation of attempts at getting answers to questions that were rebuffed.

The point want to show that your employer is not documenting performance problems; your employer is creating and manufacturing performance problems.

3. For a moment, pretend any false allegations are true. So, look at the personnel manual and see how your employer should be handling their false complaints and management of you on the issues. You want to play the devil’s advocate to see if you can trap your employer with their own written policies and procedures. This is a tactic that can help your case. For instance, your employer may lay a trap for you with the end goal of demoting you. But, your employer may move more quickly than is justified by their own policy. The policy might say that you should only receive an oral warning for a first violation—real or not. You can use this to back your employer into a corner by asking why they are jumping the gun and violating their own policy. And, you could question why they are alleging your behavior is so egregious it warrants ignoring their own written policy.

All of the answers to these questions will go towards building your case against your employer. It can also force your employer to back off or commit to more lies—if that is the direction they wish to take things. But, if they do, they are already in a bad position, if they’ve ignored their own policies and procedures. If so, they are showing evidence of harassing or retaliatory behavior (if you’ve already made complaints).

4. Make the employer prove the allegations/traps. If they want to lie about you, make them fully own the lies. Instead of falling into the trap, ask for historical documentation of your alleged performance deficiencies and bog your employer down with questions that they can only answer by removing their complaint about you or by lying and getting themselves into more legal hot water. For instance, if your employer lays traps about false performance deficiencies, you can ask:

a. When did you first notice this problem?
b. Why didn’t anyone bring the alleged problem to my attention before now?
c. Can I see your evidence of this problem?
(e.g., if you’re accused of making critical errors that you’ve never heard about, ask to see the work and have the errors pointed out to you.)
d. Why am I being written up, instead of offered guidance, mentoring or training?
e. Other questions related to specifics of your individual circumstances.

I know it’s easy to get frustrated by fraudulent performance allegations and traps. But, try to see through the frustration and look at these things as your employer helping you to prove a case against them. If they want to break the law and continue to harass you, create a hostile work environment for you and/or by retaliating against you for complaining, document everything and ask lots of questions. Get the answers in writing. An internal and/or external investigation or a lawyer will do the rest—depending on how you choose to pursue the issue.

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Monday, August 20, 2007

Tips for Refuting False Written Statements

Before I write anything else, let me start by saying that sometimes an employee—of any race—deserves and needs to be written up for unprofessional conduct, missed deadlines, performance issues, chronic lateness or any number of other issues in the workplace.

But, having said that, let me tell you, I’ve seen my fair share of false and malicious workplace statements--especially false statements from coworkers. For instance, I’ve read statements written by members of management that were signed by the coworkers of a person being targeted for harassment or retaliation by an employer. The collusion being engaged in by management and the employees would always end up being far reaching—with all parties willing to swear on a stack of Bibles that the statements were true and were provided without any amount of pressure from the company.

Yet, behind the scenes, money often changed hands. I’m not talking about hundred dollar bills literally being passed from hand to hand under a conference room table. But, I am talking about special increases, unprecedented and unjustified bonuses, significant and unjustified yearly salary increases, awards, and promotions/title changes. You’d be surprised how many coworkers are willing to put themselves in the middle of illegal corporate misconduct in order to assist an employer in taking down an innocent employee. I guess that’s one way to show loyalty to the boss and one way to get your hands on money you haven’t earned through your work performance.

In addition to false statements by coworkers, I’ve also read false statements written by employers about an employee. In some cases the false statements were written about my Black coworkers and in other cases the false statements were written about me. I’ve noticed many similarities, when White employers decide to falsely target Black employees. Much of what is written about Black employees, when it comes to false documentation, falls into stereotyping the employee, character assassination and personality attacks, and an overreliance on blanket statements that have no supporting documentation or other evidence to back up the claims. For instance:

-- A Black employee may be labeled as a behavior problem that falls into stereotypes of African Americans (e.g., being angry, defensive or unprofessional);
-- A Black employee may be labeled as having communication issues (e.g. being rude, negative, argumentative, hypersensitive, etc.);
-- A Black employee may be labeled as insubordinate;
-- A Black employee may be labeled as being disliked by a number of people or many people in their office, department, team, at the company, etc.; and/or
-- A Black employee may be accused of problems they didn’t directly cause or of performance deficiencies that do not exist.

Like I said in the beginning of this post, sometimes people need to be written up and sometimes it’s just a load of bullsh*t! When it comes to race and racism in the workplace, many Black employees may find themselves falsely documented for any variety of reasons. Regardless of the reason for being documented by a supervisor, manager, coworker or the company—as a whole—I’d like to provide you with these tips. When it comes to reading and addressing a false written statements:

1. Always be as anal as you possibly can, when reading the statement. Analyze every word that is written. If you have been provided with a false statement, you should remember that great care has gone into preparing the document. Each word was chosen for a reason—on a conscious or subconscious level.

2. Analyze the wording in the documentation and attack, wherever you see an opening. For example, if someone writes that you “appeared” to be angry or you were “perceived” to be argumentative, demand clarification. How exactly did you appear to be angry? The perception of anger is subjective, could be seen differently on a cultural level, etc. Similarly, you should find out what made the person label you as argumentative. How did the individual define that? The person writing the documentation should specifically outline how you supposedly manifested your anger or what specific behavior demonstrated that you were being argumentative or difficult.

3. Always use direct quotes from the false statement in your response and follow the direct quotes with a hard-hitting response that shows the quote to be false. You want to attack the credibility of the person writing the statement. One of the best ways to do that is to attack their basic believability by showing their words can’t be trusted, that they are careless with their words and judgments, and that they will commit things to writing that can’t be substantiated in fact.

4. Do not allow blank statements to go without response! Ask for specifics about questionable or vague accusations—in writing. Make the individual commit to details. Always keep in mind that asking questions often forces people (even very educated people) to commit to telling even more lies. The more lies they tell, the harder it is to continue to keep the story straight. Therefore, it could become easier to refute their claims about you because they’ve strayed from their initial talking points and lies.

5. Provide written evidence that contradicts the false claims in the statement. For instance, if you’re accused of being disliked by coworkers, produce emails from coworkers thanking you for being pleasant to work with and a great team player. If you are being falsely blamed for problems on a project, even though you followed the instructions you were given, provide a copy of the instructions and show how you adhered to those procedures.

6. Point out anyone referenced in the statement, who has an axe to grind or is in some other way falsely accusing you of performance issues. Provide specifics that refute what this person is saying about you.

7. Prepare a response that refutes the false statement against you line-by-line. It is much more powerful to attack your attacker following their warped logic and lies. This also allows a third party to essentially hold the two pieces of documentation (the false statement and your response) side-by-by and to make a judgment on the credibility of the arguments.

8. If you haven’t already done so, DOCUMENT EVERYTHING from the moment you realize you’ve become a target. If someone is willing to put lies to paper and to place an employer at risk, by engaging in illegal behavior, they will likely not let up until they succeed at their goal (forcing you to resign, getting you fired or demoted, etc.) Once it’s been established that you are a target, start thinking of covering your butt and saving all the evidence you need to seek an internal or external remedy to your problems.

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Sunday, August 19, 2007

Examples of Potentially Illegal Behavior in the Workplace

Discrimination, harassment, and retaliation are illegal under the Civil Rights Act of 1964. Below are examples of workplace situations that may indicate a race-based issue at work.

Examples of situations that may indicate discrimination are:

-- a company that doesn’t post job openings and routinely fills positions with Whites from both inside and outside the company—without African Americans and other minorities having first cracks at the job as an internal hire;

-- unequal pay for African Americans performing the same work as Whites (with similar education and work experience);

-- segregating African American employees to only work on African American projects and contracts;

-- isolating and segregating African Americans by assigning them to work only in specific locations;

-- reclassifying jobs at a lower level and assigning African Americans to perform the work;

-- routinely denying African Americans promotions;

-- laying off African American employees, while White counterparts maintain their jobs; and

-- asking potential employees to identify their race on an employment application, which might indicate that race may be a factor in hiring decisions.

Examples of harassment/a hostile work environment might include:

-- being subjected to heightened scrutiny and observation from coworkers, supervisors, etc.;

-- personal attacks based on stereotypes and racist assumptions;

-- a supervisor that regularly screams directly into the face of subordinate, in private or in front of coworkers;

-- physical threats of violence or actual physical abuse (e.g., shoving or bumping);

-- verbal abuse/put-downs, name calling or the use of racial epithets or slang;

-- job threats/intimidation;

-- intentionally malicious and false gossip;

-- stare down contests; or

-- intentional humiliation.

Examples of retaliation (for complaining of mistreatment, opposing discriminatory practices, etc.) might include:

-- stripping an employee of their staff;

-- an unjustified salary cuts;

-- the denial of standard employee benefits (e.g., use of leave, etc.);

-- a demotion;

-- a transfer to a hard-to-reach office;

-- stripping an employee of their workload/assignments; or

-- an intentionally negative and malicious performance evaluation; or

-- the denial of an anticipated promotion.

Please keep in mind that the list is not exhaustive and only represents examples of potentially illegal behavior. These are the types of incidences and situations that you should be documenting. Should you decide to make complaints, these types of situations should convey to the authority that there is a situation that demands attention and remedy.

Thursday, August 16, 2007

Tips for Performance Evaluations

Prior to the performance evaluation season getting into full swing, your employer will probably provide all employees with a timetable detailing all of the components associated with the performance review process. For instance, you might get a list of the dates when you should submit a self-evaluation, when your supervisor will be drafting your performance review, and the time frame in which performance reviews should be completed, etc.

Always keep your eye on the schedule and be mindful of due dates. If your employer requires you to submit a self-evaluation, make sure to take this submission seriously. Don’t just throw something together the night before your self-evaluation is done because you’re assuming your supervisor will already have a detailed list of your achievements for the review period.

Instead of relying on your supervisor or manager, you should keep your own notes that highlight your achievements and accomplishments. For instance, you should have been tracking how you met or exceeded the goals and objectives you and your supervisor agreed upon for the current review period. If you were supposed to take on writing assignments, you want to make sure to highlight how many writing projects you had with a brief description of the nature of the assignment.

In addition to maintaining thorough notes and making sure to detail this information in your self-evaluation, you should also provide your supervisor or manager with a list of coworkers, task leaders, project managers, etc. that can provide insight into your performance for the review period. You should try to create a 360 degree picture of your performance by including staff you may have supervised during the review period (even if you weren’t their official supervisor, but supervised portions of their work or performance on a task), staff that were equal level to you/counterparts on a project, as well as staff that you reported to on assignments. Including different levels of staff will help ensure that you get a well-rounded review. This assumes that your supervisor intends to give you a well-rounded review, instead of a review that is skewed or incomplete.

Never make the assumption that your supervisor knows the scope of work you’ve performed, even though they approve all of your projects in advance of you commencing work with other staff.

I had a supervisor that would approve me to work on an assignment, but she had no clue regarding the specifics. This was especially true, when the nature of the work changed based on a client request to take a different approach on a task. So, what my supervisor may have believed would be a pretty straight forward project, could have turned into a complicated task that far exceeded her expectations of the work I was doing. Her lack of knowledge was even greater, when the task leader I worked with was a member of another department. Although I kept her informed of any changes, there was really no way to guarantee that I would get full credit for substantial work performed throughout the year, without reminding her.

That’s why it’s very important to keep thorough notes on your performance and to provide your supervisor or manager with a list of staff, who can provide objective input into your performance. Some supervisors are lazy and will not seek out complete information regarding the performance of their subordinates. Instead, they might speak to one or two people and think they have a complete picture of how a subordinate performed their work, how they behaved with other staff, and how successfully they communicated with other staff, etc.

Meanwhile, other supervisors may write a review for a certain employee intending to skew the review in a negative fashion based on perceptions (true or false) or any number of factors. That’s why you want to provide a list, in writing, of those workers who can contribute to your performance review. You should try to force your manager into a more active role as far as soliciting input into your work. This is especially true if you know your supervisor is the type to write your review relatively independent of outside or contrary points of view.

Your reviewer/supervisor should be a knowledgeable informant on your work performance, the nature of your assignments, your behavior, communication skills, etc. Help your supervisor fill any gaps in their knowledge about your work. Don’t help your supervisor write an unfair, unbalanced, fraudulent or incomplete review. Be proactive! Your review impacts your promotion opportunities, salary increase, and perceived value at the company. Take it seriously and be prepared!

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Tuesday, August 14, 2007

Single Incidences that Create a Hostile and Offensive Work Environment

Normally for an employee to claim they were the victim of a hostile and offensive work environment, the employee must prove that they have been the victim of repeated incidences of mistreatment and abuse in the workplace. The incidences must be severe enough to change the conditions of the employee’s status and must be pervasive and disruptive enough that it is hard or impossible for the employee to do their job.

But, there are single incidences that are legally recognized as immediately being vile enough to rise to the level of creating a hostile and offensive work environment for an African American employee. Therefore, it would only take one occurrence to create a workplace situation that would require immediate action from a supervisor or other member of authority within a company. Two examples of single incidences that can immediately create a hostile and offensive work environment are:

1. The use of a noose or burning cross in the workplace, which is used to intimidate and to create a hostile environment. (It can be an actual or depicted noose or burning cross (or any other manifestation of an actual or threatened racially motivated physical assault); or

2. The use of the n-word in the workplace, which is used to demean, degrade, intimidate, and to create a hostile work environment.

Here’s what was included in several legal decisions:

Nooses and burning crosses:

Williams v. New York City Housing Auth., 154 F. Supp. 2d 820, 824-25 (S.D.N.Y. 2001) (“Indeed, the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence. It is impossible to appreciate the impact of the display of a noose without understanding this nation’s opprobrious legacy of violence against African-Americans.”); cf. Jackson v. Flint Ink North Am. Corp., 379 F.3d 791, 795 (8th Cir. 2004) (in racial discrimination case involving graffiti depicting a burning cross, court noted that because “its symbolism is potentially more hostile and intimidating than the racial slurs[,]…)

The N-word:

Cf. Spriggs, 242 F.3d at 185 (“Far more than a mere offensive utterance,” the N-word is “pure anathema to African Americans. Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘n-----’ by a supervisor in the presence of his subordinates.”) (citation and quotation marks omitted).

If there is one incident of racist behavior that has a clear historical context of violence and intimidation, a Black employee can rightly complain about race-based abuse and can contact their supervisor, manager or their HR department to seek a remedy for the mistreatment.

Remember, once is enough, when it comes to symbols and language that are widely known to be racist, intimidating, and demeaning.


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Sunday, August 12, 2007

Employment Law Research Links

When a person comes under attack at work and decides they want to know more information about employment law and their overall rights, they often don’t know where to turn. From personal experience, I know what it’s like to go on a mad Internet search to find out what applicable laws and statutes are relevant to a race-based complaint at work.

If you are making complaints about race-based workplace abuses, in many cases you aren’t going to necessarily trust your company’s HR department to be extremely truthful. After all, the company HR department isn’t automatically going to behave as a neutral party and may be assisting in efforts to silence your complaint about illegal mistreatment.

I came across an interesting resource. The NOLO web site (a legal resource) has a great research tool that will allow you to look for specific employment law statutes and cases. The site allows you to input key search terms or the title number and section number of a specific U.S. Code—if you already know what you are looking for. The more specific your search terms are, the better your returned results will be.

For instance, the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. The Civil Rights Act is contained in U.S. Code 42 starting at section 2000e. There is also equal rights information at U.S. Code 42—section 1981. To research these examples on the NOLO site, you would input 42 as the title and 2000e or 1981 as the section.

You can research Federal laws, state laws, U.S. codes (laws made by Congress), the U.S. constitution (you can search the constitution or browse the Bill or Rights), and the Code of Federal Regulations (rules made by federal agencies and executive departments). There are also other links on the site, such as a link to find bills that have not yet become laws and recent laws (called "Public Laws") that have been approved by Congress and signed by the President, but are not yet included in the U.S. Code.

The link to the site is:

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Thursday, August 09, 2007

Legal Decisions on Same Race Discrimination

There was a previous post on this blog about same race discrimination. The post was in response to a reader, who wondered if there was any remedy for Black on Black discrimination. I came across a couple of legal decisions based on same race discrimination. They are:

1. Kang v. U. Lim America, 296 F.3d 810, 817 (9th Cir. 2002) A hostile work environment could be found where Korean supervisor with stereotypical beliefs about the superiority of Korean workers held Korean Plaintiff to higher standards, required him to work harder for longer hours, and subjected Plaintiff to verbal and physical abuse when he failed to live up to supervisor’s expectations; and

2. Ross v. Douglas County, 234 F.3d 391, 393 & 395-97 (8th Cir. 2000) Affirming verdict in favor of a Black employee whose Black supervisor subjected him to racially derogatory slurs, such as the “N-word” and “black boy,” and referred to the employee’s wife, who was White, as “whitey”: “Such comments were demeaning to Ross. They could have been made to please Johnson’s white superior or they may have been intended to create a negative and distressing environment for Ross. Whatever the motive, we deem such conduct discriminatory.”

Remember, you don’t have to tolerate race-based abuse from Whites, Blacks or anyone else! Federal law prohibits discriminatory, harassing, and retalitory behavior against protected groups. The race of the victim is more relevant than the race of the perpetrator.


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Wednesday, August 08, 2007

Racial Harassment

I remember receiving a handout from a former employer, which provided this notation about workplace harassment: “Whether or not harassment took place should be viewed from the perspective of the victim and not the accused.”

In line with that, the EEOC says: There are two requirements for race-based conduct to trigger potential liability for unlawful harassment: (1) the conduct must be unwelcome; and (2) the conduct must be sufficiently severe or pervasive to alter the terms and conditions of employment in the mind of the victim and from the perspective of a reasonable person in the victim’s position. At this point, the harassing conduct “offends Title VII’s broad rule of workplace equality.”

So, let's define these 2 requirements a bit more...

Unwelcome Conduct – In cases of harassment, the conduct must be unwelcome in the sense that the alleged victim did not solicit or incite the conduct and regarded it as undesirable or offensive. When the conduct involves mistreatment or is racially derogatory in nature, unwelcomeness usually is not an issue, even when the alleged harasser and victim are of the same race. Sometimes employers argue that the conduct in question was not unwelcome because it was playful banter, and the alleged victim was an active participant. The facts in such cases require careful scrutiny to determine whether the alleged victim was, in fact, a willing participant.

Severe or Pervasive Abuse - To violate Title VII, racially abusive conduct does not have to be so egregious that it causes economic or psychological injury. Harassment must be analyzed on a case-by-case basis, by looking at all the circumstances and the context. Relevant factors in evaluating whether racial harassment creates a sufficiently hostile work environment may include any of the following (no single factor is determinative):

The frequency of the discriminatory conduct;

The severity of the conduct;

Whether the conduct was physically threatening or humiliating;

Whether it unreasonably interfered with the employee’s work performance; and

The context in which the harassment occurred, as well as any other relevant factor.

The more severe the harassment, the less pervasive it needs to be, and vice versa.
Accordingly, unless the harassment is quite severe, a single incident or isolated incidents of offensive racial conduct or remarks generally do not create an abusive working environment. But a single, extremely serious incident of harassment may be sufficient to constitute a Title VII violation, especially if the harassment is physical.

Examples of the types of single incidents that can create a hostile work environment based on race include: an actual or depicted noose or burning cross (or any other manifestation of an actual or threatened racially motivated physical assault), a favorable reference to the Ku Klux Klan, an unambiguous racial epithet such as the “N-word,” and a racial comparison to an animal.

Racial comments or other acts that are not sufficiently severe standing alone may become actionable when repeated, although there is no threshold magic number of harassing incidents giving rise to liability.


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Tuesday, August 07, 2007

Republican's Arrest Caused by Fear of Black Men!

Here’s a story about a White elected official willing to put his racist foot squarely in his racist mouth. This is a clear case of someone pandering to stereotypes and willing to exploit an innocent Black person the same way some Whites in the workplace will scapegoat a Black coworker or subordinate.

Here’s the story…Republican Rep. Bob Allen of Merritt Island (Florida) was arrested for soliciting a male undercover police officer for sex in a Titusville park restroom. According to police, Allen was acting suspiciously as he entered and exited the men's room three times. Moments later, he approached the plainclothes officer (Black) and offered to perform oral sex for $20. Allen now faces second degree misdemeanor charges. Police said they realized Allen was a public figure after the arrest. But, that’s no where the story ends…

After the bust, Allen told police that he wasn’t paying for sex but just playing along with the undercover officer. He said, “I certainly wasn't there to have sex with anybody and certainly wasn't there to exchange money for it. This was a pretty stocky black guy, and there was nothing but other black guys around in the park.” Allen said he feared he "was about to be a statistic.”

So, Allen basically said he was willing to do whatever it took to save his life, which “explains” his offer of oral sex—a general fear of Black men. So, this elected official decided to duck responsibility for his actions in favor of blaming the nearest Black person. And, it didn’t matter that he was making false accusations against a Black cop.

He’s a White man, who believes that other White people (and the system) will accept—or seriously consider—his fear of Black men as justification for attempting to engage in a sex act in a public bathroom. It’s important to note that Allen didn’t say there were “shady” characters or criminals in the park. No! He went right for the jugular. He said there were “black guys” and he knew how America would take those seemingly innocent words.

“Black guys.” Why didn’t he just say…

“I was afraid of the ni**ers.” We all know what he meant.

Far too many White people are willing to revert to playing the race card, which they often accuse Blacks of doing. We’re supposed to be race-baiters, but the instant many Whites get into a problem and a Black person is involved, it’s amazing how quickly the situation deteriorates into a “the ni**er did it” line of defense. It’s a strategy often used in the workplace.

This officer was doing his job and was rewarded with character assassination. His badge was devalued to the point where he was supposed to be a so-called common thug and criminal. The sad part is, someone out there…someone White…will be willing to give Rep. Allen the benefit of the doubt with his ridiculous argument. “Oh, I can see how he would have been afraid.” And, that will be that. The officer will never get an apology and everyone will act as though the remarks were no big deal.

However, the remarks represent were we stand as a nation. Some Whites will automatically go for an appeal to the underbelly of American society—racism—when dealing with issues involving Blacks. This is an intentional strategy and a battle we must continue to fight. Keep up the struggle.


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Monday, August 06, 2007

Don't Use "Bullying" as a Catch-all Term

When people are under attack at work it’s common to find that they refer to their mistreatment as “bullying.” There’s only one problem with that… only about 13 states have anti-bullying legislation pending. However, not a single bill has been signed into law. Bullying isn’t officially legislated, which makes it harder to seek legal remedy.

African Americans, like women and other groups, are considered a protected class. There are laws we can look to, when we encounter racists at work, who may use bullying as a tactic to cause harm to a coworker or subordinate.

Much of the typical behavior of bullies would fall under the Civil Rights Act of 1964, which prohibits discrimination against protected groups of people. Part of the anti-discrimination codes for the workplace is a prohibition against harassment and retaliation. Connected to harassment is language that states that it is illegal to subject an employee to a hostile and offensive work environment, which is the goal of a bully. A bully wants to make to make their victim feel miserable, isolated, and threatened or intimidated. A bully also wants to make it difficult for a coworker or subordinate to fulfill the requirements of their job.

If bullying is a tactic being used against you by a racist on the job, you should stay away from the term “bully” and focus more on the actual consequences of the mistreatment. As stated above, you should focus on discussing the specifics of the hostile work environment and provide examples of your mistreatment and how it is preventing you from doing your job.

So, you would want to mention, for example, that you are being subjected to verbal and physical threats, you are being yelled at in front of coworkers, you are called by racial epithets, you are being subjected to stare down contests, you are having your space encroached upon as a method of physically intimidating you, your emails and voice mails are not returned and it is preventing you from doing your job, and that your are completely ignored in one-on-one meetings and group meetings. Again, these are examples.

Most importantly, you must show that this mistreatment is race-related in order to be covered by Federal statutes prohibiting the discrimination and harassment of a member of a protected class. You can do this by showing that the excuses provided by the harasser (bully) are nothing more than a pretext to hide their real motive—racism. You can show that you are treated differently than similarly situated employees, such as coworkers in the same job of another race.

You can point out that you were subjected to heightened scrutiny (observation), unlike similarly situated employees or employees of any class within your unit or the company, as a whole. You can also show how your performance reviews contained surprise negative feedback that was contradictory to the positive feedback you received throughout the year or you can describe how you were falsely labeled as having performance deficiencies. You must build a case that shows that there is no reasonable justification for why you were targeted except race.

By connecting the so-called bullying behavior to active racism, you can demonstrate that a coworker or supervisor or other member of authority violated your rights under Federal law. Remember, focus on specifics. Don’t rely on the term bullying as a catch-all phrase. Bullying will make it seem like there was a simple personality problem between two employees. So, if you have a race-based issue at work…that is how you should refer to it. Don’t water down your case by referring to bullying instead of active racism, discrimination, and harassment.

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