It's Got to be about More Than "Bullying"

When people are under attack at work it’s common to find that they refer to all or most of their mistreatment as “bullying” behavior.

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.

Tips for Working Under Heightened Scrutiny and Observation

I've written about heightened scrutiny and observation in previous posts. For anyone new to the blog or anyone who hasn't read them, heightened scrutiny and observation are actions that some employers take after they have decided to target an employee. We all know that if you examine anything or anyone hard enough, you can always find something to criticize. If there is nothing to criticize, you can warp positive attributes into something negative.

Here are a couple of race-related examples of heightened scrutiny and observation, since race and the workplace are the focus of this blog:

1) A Black employee is due for a promotion and a supervisor or the company, as a whole, does not want this employee to be promoted for race-related reasons. The supervisor may decide to subject the Black employee to heightened observation and scruntiny as a premeditated way to come up with so-called "legitimate" reasons to deny the promotion to the worker. These reasons, pretexts, will NOT be associated with race because that would violate federal statutes.

After observing the Black employee, the employee is denied a promotion because they have been analyzed as being rude, defensive, unable to take criticism, angry or engaging in other behaviors associated with racial stereotypes. Recent examples will be used about interactions with managers and coworkers. Additionally, the Black worker might be told that they do not behave in a "managerial" fashion and may be provided with recent examples of behavior that undermined their ability to be promoted, such as observations about their friendships/relationships with coworkers signifying they might have issues managing staff. Or, a proactive employee may suddenly be accused of circumventing the authority of their supervisor, even though the employee's actions were previously appreciated and welcomed.

2) AFTER an employee has complained of discrimination, harassment and/or retaliation--even if they have not used those specific words (not legally required)--subjecting that employee to heightened observation and scrutiny in order to harass and retaliate against them by causing a hostile work environment and using any little thing as ammunition against the employee.

So, an employer might have coworkers or others watching the targeted employee and they may compile a list of pretexts that would justify denying a promotion or transfer or that would justify suspension, demotion, etc. For instance, a complaining employee might suddenly be accused of personality defaults (the rude and angry thing), might be falsely accused of stealing company time, might be accused of goofing around/goofing off, etc.

It's a horrible feeling to know that you are being watched and to know that it's not just management, but coworkers, that are involved in spying on you, including going through your office looking for things to use against you. It's an extremely hostile environment because you can't protect against everything when ANYTHING can be manipulated and turned against you. But, here are some tips, when you know you are a target and are being watched:

--Don't leave anything around your office that you wouldn't want your harassers to see and use against you. Take important documents home. If you plan on exposing workplace abuses, don't leave proof of those abuses/evidence in the office, where it can be taken/destroyed. If you are drafting letters to lawyers, EEOC, etc. DEFINITELY don't leave anything in your office. Try to work on that stuff at home and don't bring it to work with you. And, if you have drawn unflattering doodles of your harasser, don't leave those hanging around;
--Don't come to work late or leave early. You can be accused of stealing company time and/or you can be accused of timesheet fraud, etc. Remember, you are being watched. The easiest target is time in and out of the office vs. the time clock or timesheet records;

--Don't come back late from breaks or lunch. Same reason as above;

--If you are going to travel for work or are going on personal vacation, send an email to everyone you are working with--in advance--informing them of the dates you will be unavailable and where they can find important documents and electronic files. Let your clients know that you will be out of the office. Let everyone know who they should contact in your absence with that person's contact information listed. If you are traveling for work, be sure to provide all of your contact information on how you can be reached. If you are taking personal travel, make sure to give your cell phone number to one person that can contact you in an emergency. Yes, we don't want to be called on vacation, but none of us should want to be set up while we are out of the office. If something goes wrong and only you have the answer that can fix it, and you can't be contacted, you WILL go down for it. Be smart. Leave emergency contact information with someone and let others know that you can be reached in an emergency. If you will be legitimately unreachable (hiking in the mountains with no cell phone reception), make that known IN ADVANCE. Put in writing that the adults at your job will be on their own, while you are away. I WILL BE UNREACHABLE FOR 3 DAYS...;

--Keep copies of all your timesheets, etc. Any false allegations about your time in and out of the office might involve your employer falsying time records, which I've seen happen (a false accusation of a complaining Black manager being AWOL, when she had approved leave). Make sure you can prove the hours you worked and the leave you took;

--Keep your office neat. Don't allow petty criticsm that you are unorganized, which can be twisted into that you don't pay attention to details and can't easily find important documents and information, if needed;

--Don't bad mouth anyone in the office with anyone in the office. If you have something negative to say, say it to people who don't work with you. Don't trust staff to keep your secrets. Additionally, staff may complain that you are putting them in the middle of workplace conflict and that you are causing them to feel uncomfortable, which you can be written up for! Just do your job;

--Keep documentation of everything, since you know you are being watched. Save emails, memos, etc. from those targeting you as a means of proving instructions, conversations, etc. at a later time;

--Don't miss deadlines and inform staff if you feel you need assistance to meet a deadline--or if it is impossible to make a deadline. It IS your responsiblity to let people know if you can't do your portion of work by an agreed upon date/time. If you know at the moment it is assigned that you can't make the deadline, say so and put it in an email to the person in charge. Ask for assistance as a solution you can offer or ask for some of your work to be repriortized/shifted to allow you to accommodate a new priority project;

--Don't have watercooler conversations, which can also lead to claims of stealing company time/being nonproductive. Keep chit chat to a bare minimum and keep it moving. You are being watched, so don't allow yourself to be turned into a Chatty Kathy (or Kevin); and

--Try to maintain a positive attitude with coworkers, clients, and even the person harassing you. If you can't be positive, don't be anything less than professional. If there isn't much to use against you, your supervisor or employer may go after personality-related issues. They will look for opportunities to say that you are negative, that your coworkers don't enjoy working with you, that you are difficult to work with and manage, that you aren't a team player, etc.

Remember, you always want to put your employer in a position where they HAVE TO LIE about you because you haven't given them anything legitimate to hang their hat on. If you know you are being watched, you have to be on point at all times.

Sure, your employer may maniuplate petty things into major problems, but those things can be more easily exposed as pretexts and fraudulent claims than a legitimate or major issue can be shaken off.

Keep your head up and try to do your job to the best of your ability, despite the heightened observation and scrutiny!

Workplace Retaliation

There are three main terms that are used to describe retaliation. Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity. These three terms are described below.

Adverse Action

An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include: employment actions such as termination, refusal to hire, and denial of promotion,
other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and
any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.

Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, "snubbing" a colleague, or negative comments that are justified by an employee's poor work performance or history.

Even if the prior protected activity alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful. For example, it is unlawful for a worker's current employer to retaliate against him for pursuing an EEO charge against a former employer.

Of course, employees are not excused from continuing to perform their jobs or follow their company's legitimate workplace rules just because they have filed a complaint with the EEOC or opposed discrimination.

For more information about adverse actions, see EEOC's Compliance Manual Section 8, Chapter II, Part D (http://www.eeoc.gov/policy/docs/retal.html#IIpartD).

Covered Individuals

Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals. For example, it is illegal to terminate an employee because his spouse participated in employment discrimination litigation.

Individuals who have brought attention to violations of law other than employment discrimination are NOT covered individuals for purposes of anti-discrimination retaliation laws. For example,"whistleblowers" who raise ethical, financial, or other concerns unrelated to employment discrimination are not protected by the EEOC enforced laws.

Protected Activity

Protected activity includes opposition to a practice believed to be unlawful discrimination.

Opposition is informing an employer that you believe that he/she is engaging in prohibited discrimination. Opposition is protected from retaliation as long as it is based on a reasonable, good-faith belief that the complained of practice violates anti-discrimination law; and the manner of the opposition is reasonable.

Examples of protected opposition include:

--Complaining to anyone about alleged discrimination against oneself or others;
--Threatening to file a charge of discrimination;
--Picketing in opposition to discrimination; or
--Refusing to obey an order reasonably believed to be discriminatory.

Examples of activities that are NOT protected opposition include:

--Actions that interfere with job performance so as to render the employee ineffective; or
--Unlawful activities such as acts or threats of violence.
--Participation in an employment discrimination proceeding.

Participation means taking part in an employment discrimination proceeding.

Participation is protected activity even if the proceeding involved claims that ultimately were found to be invalid. Examples of participation include:

--Filing a charge of employment discrimination;
--Cooperating with an internal investigation of alleged discriminatory practices; or
--Serving as a witness in an EEO investigation or litigation.

A protected activity can also include requesting a reasonable accommodation based on religion or disability.

For more information about Protected Activities, see EEOC's Compliance Manual, Section 8 (http://www.eeoc.gov/policy/docs/retal.html#IIpartB), Chapter II, Part B - Opposition and Part C – Participation (http://www.eeoc.gov/policy/docs/retal.html#IIpartC).

Source: http://www.eeoc.gov/types/retaliation.html

Defining a "Supervisor"

Harassment by a coworker is bad enough, but sometimes workplace harassment is instigated by a supervisor or someone in an employee’s supervisory chain of command. I think it’s important for African American workers to know that other employee’s may qualify as their supervisor, based on the role they play in assigning and monitoring employee workloads. Therefore, harassment by what may seem to be a coworker, may actually qualify as harassment committed by a supervisor, if that is the role the employee was serving—even temporarily. According to the EEOC:

An employer is subject to vicarious liability for unlawful harassment if the harassment was committed by a “supervisor” with immediate (or successively higher) authority over the employee. Thus it is critical to determine whether the person who engaged in unlawful harassment had supervisory authority over the complainant.

An individual who is authorized to direct another employee’s day-to-day activities qualifies as his or her supervisor even if that individual does not have authority to undertake or recommend tangible employment decisions (e.g., hiring, firing, demotion, transfer, etc.). Such an individual’s ability to commit harassment is enhanced by his or her authority to increase the employee’s workload or assign undesirable tasks, and hence it is appropriate to consider such a person a “supervisor” when determining whether the employer is vicariously liable.

An individual who is temporarily authorized to direct another employee’s daily work activities qualifies as his or her “supervisor” during that time period. Accordingly, the employer would be subject to vicarious liability if that individual commits unlawful harassment of a subordinate while serving as his or her supervisor.

Someone who merely relays other officials’ instructions regarding work assignments and reports back to those officials does not have true supervisory authority. Furthermore, someone who directs only a limited number of tasks or assignments would not qualify as a “supervisor.”

In some cases, an employer may be subject to vicarious liability for harassment by a supervisor who does not have actual authority over the employee. Such a result is appropriate if the employee reasonably believed that the harasser had such power. The employee might have such a belief because, for example, the chains of command are unclear. Alternatively, the employee might reasonably believe that a harasser with broad delegated powers has the ability to significantly influence employment decisions affecting him or her even if the harasser is outside the employee’s chain of command.

Source: eeoc.gov/policy/docs/harassment.html

Don't Do Someone Else's Dirty Work!

Do not allow White coworkers to designate you as the bearer of bad news that is to be delivered to other minority staff. You know what I’m talking about…a White person may ask you to relay negative information to another Black worker that you are friendly with because that person “might take it better coming from you.”

I have been placed in the uncomfortable position--more than once--of having someone White share a Black coworker's alleged performance issues with me in the hopes that I could talk some sense into the person. For instance, a White manager has asked me to speak to a Black, female coworker about her "bad attitude" because we were lunch buddies. That was totally inappropriate! You should consider any requests like that inappropriate, as well.

Relaying a message like that is not your business, should not be made your business (bad news should be confidential between coworkers or between managers and subordinates), and should come from someone in authority.

If you are ever put in the position where someone has asked you to serve as the office’s Negro anchorman (disseminating “breaking news” to other minorities), kindly tell them that, despite any existing relationship you might have with what I will call their "target," you are not comfortable being placed in the middle of a sensitive situation.

Thank the person for considering you capable of being careful and delicate in conveying sensitive information, but make it clear that you do not wish to take your relationship with your other coworker that direction. Emphasize that you are not their supervisor or manager and, therefore, it is inappropriate for you to conduct yourself as such.

You can also make it clear that you will speak to the person about the subject, but only if they choose to share the information with you first. Other than that scenario, you would rather focus on your work and personal conduct and leave any verbal warnings to the appropriate members of management.

LEGAL BRIEF: The EEOC Settles Case of an African American Greeter Fired by JC Penny due to Race

NEW YORK -- J.C. Penney Corporation, Inc. will pay $50,000 to settle a race discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced on February 12th.

The EEOC had charged that J.C. Penney discriminated against Reinell Singh, an African American who worked as a greeter welcoming customers into Penney’s Staten Island store. The EEOC's lawsuit says that Singh's supervisor referred to her several times using racially offensive names and subsequently fired her for racial reasons.

In addition to the $50,000 in compensatory damages to be paid to Singh, the three-year consent decree resolving the case (EEOC v. J.C. Penney Corporation, Inc., Civil Action No.06 5192 in the U.S. District Court for the Eastern District of New York) includes injunctive relief enjoining J.C. Penney from race discrimination or retaliation; requiring the adoption of a non-discrimination policy and complaint procedures; anti-discrimination training; posting of a notice about the EEOC and the lawsuit; a memorandum setting forth the requirements of Title VII of the Civil Rights Act of 1964 to all store employees; monitoring and reporting.

“In spite of advances since Title VII of the Civil Rights Act was enacted 44 years ago, race discrimination still remains one of the most pervasive problems in today’s workplace,” said Spencer H. Lewis, director of the EEOC’s New York District Office. “Racial slurs must simply not be tolerated, and the EEOC will fight to eradicate any such discrimination from the workplace.”

Konrad Batog, the EEOC’s trial attorney assigned to the case, added, “All employees have a right to be judged by their work performance and not their race. This consent decree will help make sure that what happened to Ms. Singh does not happen to any other J.C. Penney employee.”

The EEOC is the government agency responsible for enforcing federal anti-discrimination laws in the workplace. Further information about EEOC is available on the agency's web site at http://www.eeoc.gov.

Source: http://www.eeoc.gov/press/2-12-09.html

Keep Copies of Instructions and Procedures

Try to develop the habit of always maintaining a copy of instructions and procedures that you’ve been provided at work. Having a clear record of what you were asked to do and how you were asked to accomplish it will make your life easier down the line. This is especially true if you are provided instructions by a person that later makes an accusation of poor performance against you.

The ultimate fault for any wrongdoing will be with that person—-so long as you followed their instructions to the letter. Having a copy of instructions and procedures may not stop a coworker or manager from saying that you should have read between the lines and taken some undocumented steps, but it does go a long way in showing that you followed the proper course of action.

Remember not to skip any steps in someone’s procedures or instructions. If you think steps are unnecessary, ask before not performing those actions! If the person gives you the go-ahead to skip steps, get it in writing! Send an email confirming they’ve approved your revised procedures. This will avoid confusion later and will help clear up ultimate accountability for any problems that may come up in the future.

If you are given instructions verbally, write them down and read them back to the person before they leave your office. After that, follow up with an email that will give that person the opportunity to point out any steps you’ve missed or any misunderstandings with how you should proceed. You can simply write, "As discussed, I will be taking x,y,z steps to complete the assignment and..."

Having a copy of instructions and procedures may be very important for a complaint that may develop at a later time. For instance, if someone is accusing you of incorrectly performing your job or of simply not knowing your job, copies of official instructions and procedures can help demonstrate your compliance with the requirements of your job and can show that the accusations against you are blatantly false.

Accusations may not be made immediately. That's why it's important to keep copies of all instructions and procedures. You may not hear complaints until a mid-year or year-end review. Keeping copies of instructions and procedureswill help you prove that false allegations are exactly that--FALSE!!

Remember, when employees are desperate they will grasp for straws to justify actions against an employee. That includes making false allegations and/or exaggerating about things that have happened on the job. Instructions and procedures are good forms of evidence, should you need to prove you are not at fault for issues in the workplace.

Finally, some instructions and procedures will include the timeline for completion and not just steps to perform. If you are accused of missing a deadline, instructions with a timeline can help prove when your piece of work was due and you can use other evidence (documents, forms, emails, etc.) to show that you complied with that deadline.

LEGAL BRIEF: APPEALS COURT IN CHICAGO UPHOLDS EEOC SUBPOENA OF EMPLOYER RECORDS

The Legal Brief gives everyone an idea of some of the types of cases that EEOC litigates, provides information on anti-discrimination legal proceedings/court rulings, and identifies some of the specific race-based issues that other Blacks have faced and challenged in the workplace. The Legal Brief also provides insight into the arguments presented by EEOC and the defenses offered by employers. This information may be helpful to workers, who may be considering filing a complaint or seeking legal counsel, as well as to employees who feel they are becoming embroiled in race-related issues at work.

In the following legal brief, the U.S. Court of Appeals determined that the EEOC has the right to refuse to drop a case against an employer simply because that employer has paid off/reached a financial settlement with a complainant. The court ruled that many employers would love to pay off a single complaining employee, job applicant, etc. even though many in the same classification may be impacted by their actions and policies. The EEOC can continue a suit against an employer, even if that employer cut a quick and cheap deal with a single person to try to avoid the legal action.

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APPEALS COURT IN CHICAGO UPHOLDS EEOC SUBPOENA OF EMPLOYER RECORDS
Seventh Circuit Says Attempted Withdrawal of Charge of Discrimination ‘Does Not Diminish Agency’s Authority to Investigate’

CHICAGO — The U.S. Court of Appeals for the Seventh Circuit, in a decision by Chief Judge Frank H. Easterbrook, Friday ordered a District Court to enforce a subpoena issued by the U.S. Equal Employment Opportunity Commis­sion (EEOC). The court ruled that the EEOC had the authority to refuse to allow an individual to withdraw a charge of discrimination, and, therefore, to enforce a subpoena against an employer and to pursue an investigation of discrimination by that employer, Watkins Motor Lines, Inc. Watkins had entered into a private settlement agreement with a rejected job applicant who had filed the charge of discrimination which gave rise to the EEOC investigation. EEOC v. Watkins Motor Lines, Inc, (7th Cir. No. 08-2483, C.J. Easterbrook, 1/23/2009).

The Seventh Circuit’s decision overturned a March 2008 decision by U.S. District Judge Rebecca Pallmeyer in which she dismissed the EEOC’s application to enforce a subpoena against Watkins, a Florida-based trucking company, which the EEOC had filed in July 2007. The trucking company had reached a private settlement with its rejected job applicant conditioned upon his withdrawing the charge of discrimination he had previously filed with the EEOC.

Judge Pallmeyer ruled that EEOC’s refusal to permit with­drawal of that charge and to shut down its administrative investigation of a possible pattern of race discrimination against the applicant and others in the same position was “arbitrary.” She then dismissed the EEOC’s application to enforce the subpoena for documents, concluding that the EEOC could not ask a court to enforce a subpoena when it should have allowed the charging party to withdraw his charge. EEOC v. Watkins Motor Lines, Inc. (N.D. Illinois No. 07 C 4115, J. Pallmeyer, 3/26/2008).

Writing for the Court of Appeals, Chief Judge Easterbrook said, “The Northern District of Illinois is the right tribunal, this is the right time, and these are the right litigants to resolve the question of whether [the rejected job applicant’s] request to withdraw his charge ends the EEOC’s authority to investigate.”

In rejecting the lower court’s reasoning and resolving the issue in favor of the EEOC, Chief Judge Easterbrook went on to write, “The problem with the argument is that it allows litigants to achieve their settlement by injuring other unrepresented persons. Many a defendant would love to decapitate a class . . . by paying off the sole representative plaintiff and thus avoiding liability to all other class members. . . That was what Watkins tried to do here . . . The agency and the judiciary are not obliged to abet this strategy by preferring [the rejected applicant’s] interests over those of other workers … A charging party’s change of mind does not diminish the agency’s authority to investigate on its own behalf.”

EEOC General Counsel Ronald S. Cooper said this morning in Washington, “We at the EEOC are very, very satisfied with the unequivocal decision of the Seventh Circuit in this case which we view as entirely consistent with established precedent. This is one more important reaffirmation of what we have always understood to be our authority to investigate and challenge employment discrimination on both class and individual bases. That was what we did in both the Waffle House and the Sidley & Austin cases which the Seventh Circuit noted in today’s decision, that was what we were doing here, and that is what we expect to continue to do.”

John Hendrickson, EEOC regional attorney in Chicago, said, “Some recalcitrant employers and their counsel attempt to avoid accountability for employment discrimination through adoption of what they consider effective counter-strategies. Such strategies may include filing lawsuits against those who complain of discrimination, conducting endless discovery so as to draw out litigation for years, and, as in this case, getting one or two possible victims of the discrimination which may have been visited upon a class to cut a quick and often cheap deal. Those strategies are, in the final analysis, never really effective against the EEOC. We’re pleased to see that point made once again made so forcefully in this important decision by the Seventh Circuit.”

The EEOC was represented in the District Court proceedings in Chicago by Hendrickson and by Supervisory Trial Attorney Gregory Gochanour and Trial Attorney Ethan Cohen. The agency was represented in the proceedings before the Court of Appeals by Assistant General Counsel Carolyn Wheeler and Appellate Attorney Gail Coleman of the Office of General Counsel in Washington.

The EEOC is responsible for enforcing federal laws prohibiting discrimination in employment based on race, color, sex (including sexual harassment and pregnancy), religion, national origin, age, disability, and retaliation. Further information about the Commission is available on its web site at www.eeoc.gov.

Source: http://www.eeoc.gov/press/1-26-09.html

Increased Scrutiny and Observation

If you file a complaint of discrimination, harassment, retaliation, etc. against your employer, your employer may respond by producing what appears to be evidence of a legitimate, nondiscriminatory reason for whatever employment action was taken against you. However, legally, a violation would still be found if the explanation provided by your employer is a pretext designed to hide the true retaliatory motive.

Typically, pretext is proved through evidence that an employer treated a complainant differently from similarly situated employees or that the employer's explanation for an adverse action is not believable. An adverse action is any action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding.

If you have complained/opposed discrimination, etc. in the workplace, you want to begin tracking and documenting your employer’s pretext(s) by exposing how the so-called legitimate evidence is nothing more than a cover story to justify the real reason they are targeting you—discrimination, etc.

One way you can show pretext is to show that your employer subjected your work performance to heightened scrutiny/increased observation after you engaged in protected activity (e.g., by opposing discriminatory practices, participating in a discrimination proceeding, etc.)

I can give you examples of my experience with heightened scrutiny and increased surveillance. After my former employer was found guilty of retaliating against a Black manager, they came after me for providing truthful testimony about what I heard and witnessed being said and done to the Black manager. I was denied a promotion, denied a justified transfer to take on a new career path for which I was working and received training, and I was subjected to heightened scrutiny and increased surveillance. A couple of weeks after my employers were found guilty of retaliation, I suddenly started hearing about everything that was supposedly being “noticed” or I was told about how things “appeared”. For instance:

-- I was told that people were noticing my hours in and out of the office and that everyone was suddenly questioning my hours. But, my employer wouldn’t accuse me of time sheet fraud, missing deadlines, etc., which would result from an employee not being at work or working shortened days;

--I was suddenly told that everyone questioned if I was really doing work, when I took assignments home. It was stated, “We see you taking things home, but even managers wonder if you really do anything, when you get there.”

--I was suddenly told that all of my emails read “defensively,” with no examples provided and no justification for why this wasn’t a complaint in the previous 7 years I was working at the company;

--I was told that I appeared to be looking for another job; and

--I was told that I appeared to be unhappy and didn’t appear to like working in my department, etc.

Everything I did was scrutinized, pulled apart, and most of it was documented as alleged performance deficiencies. Blanket statements were used to criticize me with no supporting documentation, etc.

So, one of my positions--in my defense to an outside investigating organization--was that I had participated in protected activity (assisting a discrimination investigation) and as a result I was subjected to heightened scrutiny, along with threats to my job security, intimidation, etc.

So, always think about exposing pretexts, the supposedly legitimate reasons why your employer targeted you with some employment action (termination, denial of promotion, suspension, demotion, etc.). If you are the victim of false employment actions and your employer needs to cover it up, they will begin watching you and documenting whatever they think they can use against you.

Think about the levels of heightened scrutiny and increased surveillance that you are being subjected to compared to other similarly situated employees (employees in the same job, level, classification, etc.).

Employers Don't Get to Rewrite History!

“Even if higher management proves that evidence it discovered after-the-fact would have justified a supervisor’s action, such evidence can only limit remedies, not eliminate liability.”

McKennon v. Nashville Banner Publishing Co., 513, U.S. 352, 360-62 (1995).

So, an employer cannot go back and try to retroactively uncover incriminating evidence against an employee as a means of denying all liability for some violation that took place on the job.

At the time employment decisions were made any new facts were unknown and, therefore, had no impact on the decision-making process.

If an employer argues that newly uncovered information justified a past employment decision, then they need to explain how they took the action in the first place. Employers can't have it both ways. Either they had enough evidence to justify their actions or they didn't. What would they still be looking for at the 11th hour and how could anyone look at such late-breaking evidence as credible?

Employers may still be liable , even if they find new evidence that allegedly supports their position.

It Just Takes One Person!

Excuse any rambling I may do today, since I did inventory in my store overnight through morning. I've only had a few hours sleep.

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The reality is that it only takes one person to change the dynamics in an office or workplace. One person with racial biases and a desire to act upon those biases can change a workplace you enjoy into a workplace where you--and other minorities--become targets.

I always wish everyone the best and hope that they don't have to deal with any of the stuff I write about on this blog. However, it's really easy to go from an environment you love into an environment of turmoil. It only takes one transfer or one new hire or one new executive to change the vibe and dynamics at your workplace.

One person with an agenda or one person who jumps at every opportunity to get into it with workers they feel are beneath them or are ignorant or are lazy or are any other stereotypical caricature can end up making you miserable and can end up having you on shaky professional ground.

We may have a "one person" at my current job. While doing inventory, a coworker (Black) mentioned that another worker (Hispanic/White) reported her to management and accused her of being physically abusive to him. He says she shoved him and that he doesn't like to be "touched or abused." The Black coworker's version of the story has the Hispanic/White worker shoving her. She says that after losing her balance, she stood up. As she stood, she brushed up against him because he was still standing right on top of her after knocking her over. Yet, this guy reports her as shoving him. Luckily for the Black worker, there were witnesses who could explain what happened. So, she didn't get written up, suspended or terminated.

The reason I'm writing about this is because this is the same guy I wrote about a few weeks ago, who ended up getting a Black male worker terminated--alleging physical abuse by that worker. Witnesses have told me the guy reached out and touched him as he was making a point to the Hispanic/White worker. I was told it wasn't a punch, slap, shove....nothing. But, the Black worker still lost his job.

Now, I'm told by several workers that, last week, this same Hispanic/White guy got another Black worker suspended--for verbal and physical abuse.

It seems that the Hispanic/White worker may have finally tipped his hand. The Black female worker, having the most recent dispute with him, says that the manager refused to repeat some of the language he used about her, but would admit that "it was really bad." The Black worker said the implication was that he made negative racial commentary about her. The Black worker has written a statement about the incident and submitted it to management.

It would appear that it is just dawning on management that this guy has a problem with Black workers AND that he may be exaggerating or lying about incidents at work.

At many workplaces, not making complaints about discrimination, harassment and/or retaliation in GOOD FAITH would result in employment action, up to and including termination. Lying and exaggeration are not acts of good faith!!

I am very interested in finding out and/or observing what happens to this worker in the near-term.

As always, I'm taking notes on what I'm hearing through the grapevine. If this guy manages to stay around--and I should have to interact with him--I want to make sure I've got some information on him that I can use to my advantage, should anything jump off.

If you are forced to work with that "one person," who can make life a living hell and have you subjected to employment actions, such as suspension and up to and including termination, make sure to document everything you know about the person. If you end up clashing with this person or targeted by this person, you can point to prior bad acts by this individual in making your case that they are not credible and that their accusations against you can't be used as a basis for employment decisions.

DOCUMENT EVERYTHING!!

Dealing with Employer Traps

Just as a reminder, this blog has always been directed at Black workers who are FALSELY targeted at work and who are dealing with legitimate race-based issues. As I wrote early on, if you aren't doing your job than get your stuff together! Don't use race as a false issue to cover up your deficiencies because it sets us all back and makes legitimate discussions about race-based issues at work seem like so-called race-baiting/playing the race card. It's bad enough that legitimate claims of workplace racism will often be met with false allegations of race-baiting (possibly along with harassment and retaliation), so we don't need anyone making things more difficult for those of us who are truly fighting the good fight at work. One of the most important things we can do is to really look at our situation and try to objectively decide if it's race-related or if it's just business (a legitimate issue). With that said, here's the post on dealing with employer traps:

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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 is...you 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.