Thursday, December 27, 2007


Hey All!

Like millions of Americans, I'm on Christmas/New Years vacation. The Black Factor will return REGULARLY on Wednesday, January 2nd! Hopefully, all health-related and computer-related issues will be fully resolved at that time. In the meantime...


Thursday, December 20, 2007

It's None of Your Business!

We all go to work to perform a job function and to be paid for it. It doesn’t matter if we’re in a “job” vs. being in a “career.” And, it doesn’t matter whether or not we’re working to promote social changes and to improve the world. In the end, we go to work, we perform our duties, and we get a check for our services.

It isn’t required that we go to work to make friends. I think we can take a look at all of the anti-social a**holes at work to validate that point. No one is paid to be the life of the workplace party or to socialize with some, most or all of their coworkers. If you choose to, it’s okay to foster friendly relationships at work. But, some people--regardless of race—are simply very private individuals, who don’t intend on being part of many social networks. These people want to keep business about business. They don’t come to work to spread their business. So, let’s get to the point of this post…

Stereotyping and privacy issues sometimes combine to make false and unnecessary “communication issues” for Blacks in the workplace, such as being “unapproachable,” “distant,” and “unfriendly.” Why do I say this?

It’s been my workplace experience that far too many White people want to play the game “20 Questions” with their Black coworkers. They want to know if we are from the “ghetto,” if we were raised by a single parent, if we are married or intend to get married, if we’ve ever been shot at/been in a drive-by shooting, if we know any rappers, etc. It’s a criticism I’ve heard many Black coworkers make…that their White coworkers ask many probing and/or offensive questions about their personal lives.

But, does anyone in the workplace really have the right to ask these questions, especially questions with their roots in stereotypes?

Some Black people feel okay about answering these sorts of questions. While some Black people don’t feel okay about answering them, but do so anyway out of fear of being labeled as “unfriendly” or “unapproachable.” But, the reality is that not every Black person wants to share their life story or stand around socializing when they should be working. Many Black people who have gotten the “unapproachable” or a similar label at work are often simply people who don’t feel the need to tell their personal business at work.

Maybe workers have watched too much Ally McBeal, Desperate Housewives, Grey’s Anatomy, etc., so they think their existence boils down to everyone sitting or standing around sharing extremely personal information and psychoanalyzing themselves. However, those who don’t choose to be Ally or some other TV character, shouldn’t be labeled as antisocial or rude for not joining in the social networking. If a person is respectful to coworkers, that should be enough for everyone involved.

African Americans should not be stuck with labels for maintaining their personal privacy at work. I’ve had a number of Black coworkers be hit with various labels about being “unapproachable” or “distant,” including labels that showed up on their performance evaluations. The labels just weren’t based in reality. Nevertheless, the examples of their so-called negative behavior reinforced that the expectation was for them to be more “social.” For instance, one coworker was told she spent too much time in her office and that it would be nice if she would “chit-chat” with coworkers more. But, we are not paid to chit-chat. Besides, when does that type of language end up on a yearly performance evaluation? “We think you work too much, so PLESAE stop and talk in the hallways!” That was the gist of the conversation. Come on!

I also had a Black coworker talk about her life experiences with White staff, only to end up having these personal conversations shared with other White staff in a laughing manner. This was all done behind her back, but in earshot of other Black workers. “You know, she’s from the ghetto,” was one of the wise-cracks. And, they also shared very personal details I won’t repeat here.

This is what some Black workers want to avoid. Just like many other workers, we don’t all want to be fodder for office gossip. So, a desire to keep personal business personal should not result in a Black worker being accused of having communication issues with White coworkers. We are at work to work. We don’t have to tell our business. Point blank!


Wednesday, December 19, 2007

Employee Notification of Anti-Retaliation Policy Following Complaints

If you file an internal complaint at your company alleging that you are the victim of harassment or retaliation, your employer is supposed to inform staff that it will not accept you being subjected to any mistreatment, while your complaint is being investigated.

In addition, any employment decisions that are made, after you file a complaint, should be reviewed by your employer in order to ensure that the decisions are not a disguise for continued punishment. For instance, if you complain about harassment from your supervisor and your supervisor transfers you to an office that is isolated (a long and out-of-the-way commute, etc.), your employer should analyze the transfer and should reverse the supervisor’s decision, if it is determined that you were transferred based on your supervisor’s need for revenge.

The EEOC specifically says: An employer should make clear that it will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. An anti-harassment policy and complaint procedure will not be effective without such an assurance. Management should undertake whatever measures are necessary to ensure that retaliation does not occur.

For example, when management investigates a complaint of harassment, the official who interview s the parties and witnesses should remind these individuals about the prohibition against retaliation. Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives.


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Tuesday, December 18, 2007

IN THE NEWS: Poll Suggests Blacks Get Hit With Racism From All Sides!

A new national poll of over 1,100 African-Americans, Hispanics, and Asians shows that almost half of the Hispanics and Asians said they are “generally afraid of Blacks because they [Black people] are responsible for most of the crime.” Forty-four percent of Hispanics and 47% of Asians agreed with that statement!

That’s not really shocking. We know that Blacks have historically been played as the villains and criminals of American society. This includes historic stereotyping through a variety of media formats, as well as through word-of-mouth stereotyping and racism that is passed on through many American families—including recent immigrant families. It is commonplace for Blacks to be portrayed as criminals. We’ve even seen Black criminals used in presidential campaigns (Willie Horton anyone?).

With this poll we see proof (through admission) that historic racism against Blacks has crossed over to other minority groups. What’s troubling is that we're talking about groups of people who made their way to America after Africans were brought here and enslaved on plantations. So, these new-jack Americans--who’ve ridden the coattails of Blacks in getting all sorts of human and civil rights—have positioned themselves in a way that would keep Blacks as the low-man on the minority totem poll. And, seemingly, have convinced themselves of some sort of superiority over Blacks. The belief that Blacks commit most crime pretty much says it all!

Here’s something else that wasn’t shocking about the study…all three ethnic groups said they “trusted Whites more than each other.” This response shows how all three groups are really trying to put their best assimilation foot forward by aligning themselves with Whites.

With Blacks, it’s the least shocking. Breaking in slaves/“making slaves” through a process called “seasoning” and the history of slavery, as a whole, provide the background that would make many Blacks say they trust Whites more than each other. The idea that many Blacks are militant is baseless. The slave mentality has been passed on for many generations. The concept that Whites are superior and that Blacks are inferior and can’t be trusted has been passed down through many African-American families. That is the ultimate point of seasoning—the slaves will unwittingly assist in their own enslavement by perpetuating what they’ve been taught to believe about themselves, their “masters,” and their role as slaves in society. So, there’s no surprise there.

Furthermore, it makes perfect sense for other minorities (struggling for acceptance and success in American society) to identify with, aspire to be like, and to trust those who are perceived as the power-holders and decision-makers within their society--Whites. Members of some non-Black minority groups think they should take on what they see as White perceptions, attitudes, and beliefs. This sometimes includes taking on White racist attitudes towards Blacks. Think about it...what group of people would choose to align themselves with those they perceive to be the dregs of American society, instead of those who hold the power?

All of this background noise of stereotyping influences people and often dictates how they perceive other groups and how they will treat members of other groups. This is important to keep in mind as we discuss workplace racism, as well as racism in other venues. Whites are not the only workers or supervisors, who may engage in discriminatory actions against Blacks in the workplace. Let’s be fair. Workplace racism perpetuated against Blacks can just as easily be committed by a Hispanic/Latino, a South Asian, etc.

The Black Factor may often call out Whites, but that’s just to save some typing. Any Black worker can tell you what this poll suggests, racism against Blacks comes from all sides!

The poll was sponsored by New America Media (NAM), which is an association of ethnic-media organizations. The Executive Director of NAM, Sandy Close, said that “The best way to move forward is by identifying the problems and initiating a dialogue that can bring ethnic groups closer in their fight for equality and against discrimination.”

Source: NY Post, Ethnic Strains Reign, by Hasani Gittens,


Monday, December 17, 2007




Monday, December 10, 2007

The Dos and Don'ts of Internal Investigations

When you’re requesting an official investigation at work (via your department head, HR, etc.) …


· Request the formal investigation in writing/via email (memo);

· Save multiple hard copies of the request, including any supporting documentation that was forwarded to HR;

· Know the procedures that govern the investigation;

· Know the expected timing of the investigation;

· Present evidence strategically. Only submit what is vitally necessary to prove your case. Submit the evidence in some logical order for ease of understanding the issue;

· Label your evidence with the relevance of each item submitted for review by the investigator;

· Present a witness list;

· File an appeal, if you don’t agree with the decision;

· Find alternative resources, if your situation warrants it (e.g., outside/external investigation, legal counsel, etc.); and

· Keep your mouth shut during the investigation--remember that you are surrounded by liars and opportunists in the workplace.


· Allow people with conflicts of interest to be an integral part of the investigation. Express why you are concerned with a person’s participation in the investigation and ask for alternates to replace that individual;

· Inform your chain-of-command before filing a complaint, if your chain-of-command is the party that is bullying, discriminating or retaliating against you;

· Accept a determination you don’t agree with--investigate your options, such as filing an appeal or filing a complaint with EEOC; and

· Give your employer ammunition to use against you. For example:

-- make sure you report to work early or on time;
-- don’t miss deadlines;
-- be professional at all times;
-- double-check your work;
-- don’t take the bait (e.g., people will try to antagonize you to get an angry response that can be used against you later);
-- document everything; and
-- don’t keep evidence at work where it can be found and destroyed.

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IN THE NEWS: Judges Can Reduce Crack Sentences

The Supreme Court ruled today that judges can impose shorter sentences for crack cocaine convictions.

There has been a long-standing debate about the disparity of sentencing for what have been perceived as Black (crack cocaine) and White (powder cocaine) crimes. Those in possession of crack cocaine have often received harsher prison sentences than those convicted of possessing powder cocaine. The way things played out, Blacks (for example) could go to jail for a longer time for possessing less cocaine than Whites, who may have been found with more powder cocaine.

The Supreme Court decision was announced ahead of a vote scheduled for Tuesday by the U.S. Sentencing Commission, which sets the guidelines, that could cut prison time for up to an estimated 19,500 federal inmates currently convicted of crack crimes.

The Sentencing Commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect Nov. 1 after Congress took no action to overturn the change. Tuesday's vote is whether to apply the guidelines retroactively.


Friday, December 07, 2007

More on Mediation

One of the strongest defenses an employer can use is to state and then prove that it undertook reasonable care to prevent and promptly correct harassment in the workplace. In order to do this an employer is required to establish, disseminate, and enforce an anti-harassment policy and complaint procedure and to take other reasonable steps to prevent and correct harassment.

As stated previously on this blog, simply having anti-harassment or other written policies is not good enough because there are no "safe harbors" for employers based on the written content of policies and procedures. Written policies only hold weight if the employer has implemented those policies effectively (e.g., by conducting a fair, thorough, and impartial investigation).

Just as written policies are not enough, an employer offering a complaining employee mediation/arbitration is also insufficient for an employer to prove that it exercised reasonable care. Let me write that again: A union grievance and arbitration system does not fulfill the obligation of exercising reasonable care.

Decision making under such a system addresses the collective interests of bargaining unit members, while decision making under an internal harassment complaint process should focus on the individual employee's rights under the employer's anti-harassment policy.

Again, an arbitration, mediation, or other alternative dispute resolution process does not fulfill the employer's duty of due care. The employer cannot dismiss its responsibility to investigate complaints of harassment and undertake corrective measures by providing employees with a dispute resolution process.


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Wednesday, December 05, 2007

Tips on Mediation

EEOC describes their mediation process like this: Mediation is a fair and efficient process to help you resolve your employment disputes and reach an agreement. A neutral mediator assists you in reaching a voluntary, negotiated agreement. Choosing mediation to resolve employment discrimination disputes promotes a better work environment, reduces costs and works for the employer and the employee.

When you’re dealing with an agency, such as the EEOC, to even be offered mediation means that your case has been deemed to have merit and that your case warrants an investigation by the agency. So, you’ve gotten past the point where your employer can claim that your case is without merit. But, that won’t necessarily prevent them from claiming just that. Anyway, mediation is the first choice/desired action because it is less time consuming and avoids litigation.

A friend of mine recently went through mediation with a government agency. Those present at the mediation meeting included my friend, the government mediator, the Human Resources representative (representing her former employer), and the former employer’s attorney.

The reason I decided to share tips on mediation is because my friend felt strongly that the mediator was really pushing her to make decisions that weren’t necessarily in her best interest. For instance, when her former employer low-balled her with a financial settlement offer, the mediator made a big show out of telling her what a great offer was being made to her. Yet, the offer didn’t consider back pay or compensatory damages. My point isn’t to get into the specifics of her case, but to share some of our discussions about the mediation process. Here are some tips to keep in mind;

1) Remember that you aren’t required to reach an agreement at mediation. DON’T LET ANYONE PRESSURE YOU INTO AGREEING TO A RESOLUTION YOU TRULY DON’T ACCEPT OR THAT YOU THINK IS UNFAIR;

2) Don’t assume your employer’s representatives will tell the truth at the mediation meeting. INFORMATION SHARED AT MEDIATION IS DEEMED CONFIDENTIAL AND CAN’T BE USED AGAINST THE OPPOSING PARTY AT A LATER TIME. So, don’t be surprised if you hear new false allegations at a third-party mediation session. Your employer won’t be legally committed to these new fabricated allegations;

3) Remember that the mediator is not there to provide you with legal advice;

4) If possible, take a lawyer with you, since your employer may bring representation. You should also have a lawyer there to represent your best interests, as well as to provide clarification on the Federal statutes;

5) Don’t assume the mediator is fair and impartial—or even good at their job; (the same as Human Resources staff, who are often not fair and impartial and usually work to protect the employer!);

6) Don’t assume the mediator isn’t trying to quickly move cases off their desk and may be using their personal work-related stressors to influence your actions/judgment;

7) Don’t assume the mediator is tilted in favor of the “little guy,” rather than the employer;

8) If you are engaging in third-party mediation with an agency, such as the EEOC (rather than so-called workplace mediation), and you don’t like the agreement being offered, simply decline to resolve the issue through mediation. Declining the offer will result in a full government investigation of your employer; and

9) To hell with your employer! You should consider the impact the abuse has had on you—personally and professionally. That includes consideration of compensatory/punitive damages related to loss of pay (termination, wrongful denial of promotions and raises, salary cuts/demotions, etc.), loss of work/sustained unemployment, any health issues caused by the stresses at work, damage to your professional reputation within your field (future employment issues), etc.


If you want to know more about the government perspective on mediation, the EEOC has a link to facts about government mediation at: and a Q&A on government mediation at:

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Tuesday, December 04, 2007

Who Has The Right?

I was speaking to a friend recently and the topic turned to racism in the workplace. My friend asked, “What in God’s name makes someone think they have the right to stop someone from getting a promotion because they’re Black?”

That question could be morphed so many times over:

-- What makes a person stop someone from getting training opportunities simply because of race?
-- What makes a person stop someone from getting a fair salary increase simply because of race?
-- What makes a person execute a tangible employment action (demotion, suspension, termination, etc.) simply because of race?
-- What makes a person write a fraudulent performance evaluation simply because of race?

For “race” you could substitute gender, age, sexual orientation, disability, etc. But, the question is still the same. What makes a person actually act upon their personal biases in the workplace?

Think about it...most people have some other group of people that they do not care for (Whites, Blacks, Jews, Homosexuals, Women, Small People, etc.). Now, most people won’t admit that, but it’s just human nature. The problem isn’t as much in having those biases as it is in acting upon them. Even if race discrimination didn’t violate Federal statutes, why would anyone think they have the right to engage in that activity—particularly in the workplace?

The concept that someone can be so full of hatred, disgust, contempt, etc. for another group of people, to the point where they have absolutely no impulse control, is very frightening. To go to work and decide that you will potentially jeopardize your own career and reputation, just to unjustifiably attack Black workers is an astonishingly arrogant action. To knowingly place your employer in legal jeopardy is reckless and arrogant, as well.

But, what’s crazy about the whole thing is how many employers are willing to engage in activities that serve to protect the very people who are endangering their business. With all the talk about branding and company reputation, you would think that companies would annihilate any employee—regardless of level/title—that is engaging in activities that endanger the well-being of the company.

Unfortunately, when allegations of race-based discrimination, harassment and/or retaliation surface, many employers embrace and protect the alleged perpetrator, while ignoring the plight of the victim. Some employers go as far as to engage in the same illegal behavior, which has been brought to their attention by the victim. The thought process seems to be that the company should deny all wrongdoing—no matter how obvious—in order to make the employee shut up, resign or to set the employee up for termination. Apparently, once the complaining employee is silenced, all will be right in the world again. All of the talk about the company’s “brand” just goes out the window and wagons are often circled around the victims of illegal behavior.

The whole workplace racism dynamic is utterly psychotic on many levels. The actions of the racist—one of the dumbest creatures on the planet—and the actions of far too many employers go against what we declare are desired social norms. We say we want to live in a fair and equal society and we pledge that we want “liberty and justice for all,” but we—as Americans—intentionally fall short on living up to our declared standards of conduct or our declared ideals.

Until people realize they have absolutely no right to engage in racist behavior and that they have absolutely no right to destroy someone’s livelihood/career, we will continue to battle race-based problems in our society.

When employer’s stop sheltering racist workers, supervisors, managers, executives, etc., more people will finally realize that they ARE able to control their impulses. Employers who tolerate known racists and racist behavior just add fuel to the fires of racism in the workplace. Racists need to be shut down! No one is irreplaceable. Especially, not many of the characters who are responsible for the race-based lawsuits against their employers.

To each racist I say: "If you want to be racist, keep that sentiment at home because it’s the only place you should feel comfortable spouting your ignorance with such certainty. But, the minute you leave your home and step out into a diverse society and workplace, you should willingly forfeit any racist views, while you are working on your employer’s dime."

If a person is unable to control their racist impulses for a mere 8 hours a day, that person should seek the attention of a mental health professional. The inability to control one’s impulse to engage in racist behavior is a sure sign that something is terribly wrong with a person’s ability to reason, ability to control their behavior, and ability to show sound judgment.

The reality is…


This concept seems obvious. But, reality shows that many people are still trying to work it out!

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Monday, December 03, 2007

Corroboration of Workplace Abuse

If you're having race-related issues on the job, one of the main things you need to focus on is establishing corroboration of the events you are alleging are taking place on your job. What does that mean?

It means that you want to avoid a he said/she said incident on your job. So, here's what you can do:

-- Identify witnesses!

Who heard or saw an incident that you are complaining about?
Who did you report abusive behavior or harassment to?
Who did you share stories of your abuse with?

-- Provide supporting documentation and physical evidence!

Present written evidence, charts, instructions, etc. that support/corroborate your versions of events. Evidence might include timesheets, organizational or departmental charts, writtten instructions, offensive or harassing emails, malicious performance evaluations, written documentation falsely accusing you of work-related, behavioral or personality deficiencies, written statements from witnesses, etc.

-- Label your evidence in order to make sure that a 3rd party understands the relevance of each item being submitted as proof of workplace abuses!

You can’t assume that someone will look through your evidence and draw all of the proper and important conclusions that you feel support your case. Therefore, it’s important to label your evidence in way that will allow an investigator or lawyer to quickly understand why you have included each piece of evidence in your case file. An effective way to do this is to create labels that you can attach to the front or back of each item, which provides a description of the significance of the evidence.

You can label each piece of evidence with a brief statement about the relevance of the item and why the documentation is important. I recommend typing up an explanation of your evidence using the label making function of your computer software program. Then, simply print the information on a peel and stick label that can physically be attached to the front or back of your evidence.

Large shipping labels provide a substantial amount of space to make your notations. Be sure to include your name, case number (if you’ve been assigned one), and to number/catalogue each item being presented, in case your evidence becomes separated from your overall complaint.

As much as possible, include your evidence in chronological/date order, unless you feel there is another way of compiling your evidence that makes more sense. For example, you may decide that you want to group emails together, memos and other documentation in another section, etc. If your evidence is broken into sections, label your evidence appropriately.

For example, Item #1, Section A – Harassing Email or Item #1, Section B – Threats to My Job Security, Item #1, Section C – Tangible Employment Actions (Proof of Demotion Without Basis, Proof of Being Denied a Promotion for a Discriminatory Motives, etc. ). Always include the impact/relevance of the evidence on the label.

Remember, your credibility is being judged. You have to prove your case. In order to do that you must submit facts/evidence and you must show that any arguments presented by your employer are untrue, misleading or irrelevant to the issues you encountered at work.
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