Tuesday, June 30, 2009

What is a Hostile Work Environment?

A hostile work environment (included under discrimination/harassment of Title XII of the Civil Rights Act of 1964) occurs when unwelcome comments or conduct based on sex, race or other legally protected characteristics unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment. Anyone in the workplace might commit this type of harassment – a management official, co-worker, or non-employee, such as a contractor, vendor or guest. The victim can be anyone affected by the conduct, not just the individual at whom the offensive conduct is directed.

A hostile, intimidating or offensive work environment might be indicated by:

--Use of racially derogatory words, phrases, epithets or being subjected to intentionally malicious and false gossip;

--Demonstrations of a racial or ethnic nature such as a use of gestures, pictures or drawings which would offend a particular racial or ethnic group;

--Comments about an individual’s skin color or other racial/ethnic characteristics;

--Making disparaging remarks about an individual’s gender that are not sexual in nature;

--Negative comments about an employee’s religious beliefs (or lack of religious beliefs);

--Expressing negative stereotypes regarding an employee’s birthplace or ancestry;

--Negative comments regarding an employee’s age when referring to employees 40 and over;

--Being intentionally prevented from performing the requirements of your job;

--Derogatory or intimidating references to an employee’s mental or physical impairment; or

--Physical violence or verbal threats of physical violence or retaliatory actions.

A claim of harassment generally requires several elements, including:

--The complaining party must be a member of a statutorily protected class;

--S/he was subjected to unwelcome verbal or physical conduct related to his or her membership in that protected class;

--The unwelcome conduct complained of was based on his or her membership in that protected class; and

--The unwelcome conduct affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with his or her work performance and/or creating an intimidating, hostile or offensive work environment.

Thursday, June 25, 2009

R.I.P. Michael Jackson!

Regardless of what some may say about his personal life and so-called "weirdness," Michael Jackson was an American icon and a talented artist. From the Jackson 5 to his days as a solo performer, Michael Jackson had a major impact on the music.

People may hate on him, but Michael Jackson influenced many singers and performers across music genres. He was the King of Pop. You can still see his influence in artists like Usher, Chris Brown and even Justin Timberlake. Even female artists, like his sister, Janet Jackson, were influenced by him.

Thriller is still one of the greatest albums of all time and the top seller worldwide. Michael revolutionized music videos and took them to a level that nobody was even thinking about. Music videos became mini-movies and opportunities to tell stories--and not just to stand around singing--because of Michael's vision. The expensive music video and special effects are part of his legacy.

I still love Rock With You, Pretty Young Thing, Butterfly, Rock My World, She's Out of My Life, Man in the Mirror and more!! I still love the Thriller, Smooth Criminal, Remember the Time, Bad, and Black or White videos.

Thanks for the music, the videos, and the performances. We'll always remember the moonwalk, the sequin glove, the shades, the hat, the crotch grabs, the military jackets, the infamous red jacket, the white socks--with high water pants--and the black loafers! We will never forget your Jeri Curl either!! One of the best. LOL

Money and fame don't equal happiness! Hopefully, M.J. gets some peace in the afterlife that he didn't seem to have in life.

R.I.P. Condolences to the family, friends, and fans around the world.

Leave a comment about M.J. if you'd like to share your thoughts on his passing.

Don't Spread Jokes Around the Office About Your Roaches!


Nobody needs to hear your tips and techniques on ridding a residence of roaches and mice!

Don't talk about your project elevator being broken and the bells not working!

If you need to talk about where you are from, describe your community in a more positive fashion or just say nothing at all.

Don't even say that you are from the "ghetto" as a joke.

The white person you are speaking to will take you for your word and will begin to perceive you as displaying "ghetto" behavior that they believe they are familiar with.

Everyone knows about the hip hop scene these days thanks to TV, etc. So, everyone is a so-called expert on what is or isn't ghetto. Unless you are at some sort of hip hop summit, any disussion of the ghetto will be drenched in stereotypes.

White people don't need to know you are from the ghetto or are from the "outskirts" of the ghetto.

White coworkers don't even need to know if you ....are from a broken home....have a momma, daddy or grannie in lock-up....have a drug addict residing in your household....are in a dire financial situation (read: filing bankruptcy or about to get evicted)....etc.

If you're going to play into stereotypes with White folks on your job, just go ahead and bug your eyes, while you shuffle around the office.

Sharing information that allows you to be stereotyped yields no reward and can only offer headaches. On the one-hand a couple of people may be impressed with how far you've come. But, on the other hand, more coworkers may perceive you in the way you have seemingly described yourself and may look at you in a negative fashion.

It's just not worth it to go there! Keep some of your business--your business!

Wednesday, June 24, 2009

Be Careful With "Jokes"

We live in a diverse society, so we should all be careful about making offensive jokes in the workplace about other groups of people. Not only is it inappropriate behavior for the workplace, but it could come back to haunt you.

If you are subjected to race-based harassment in the workplace involving offensive jokes and egregious remarks, you don't want a supervisor, etc. to be able to come back and show that you have a history of engaging in that sort of behavior yourself. For instance, it would not be cool to have someone turn your jokes or stereotypical comments about gays, women, Hispanics, Asians or even other Black people against you.

Just stay clear of this. There's no reason to even go there. If people are making jokes that you find objectionable, you have the option of excusing yourself from the conversation and simply walking away. If you don't want to directly say you don't appreciate the comments, just excuse yourself under the pretense of needing to make a business call.

You don't have to stand there being perceived as a willing participant. This too could come back to haunt you. "Oh, he/she wasn't offended when the jokes were about Dominicans! He/she stood around laughing with everyone."

Of course, Dominicans are just an example. I don't know any Dominican jokes!

The point is, people in the workplace have a way of twisting and manipulating things to make you appear to be something and someone you are not. If they can make you appear to be a person who is only PRETENDING to be sensitive to racial issues, they will have succeeded in being able to marginalize your complaint.

Just something to keep in mind!

Tuesday, June 23, 2009

Reader Answers to the Question of the Day: Would You Cooperate With An Internal Investigation?

I previously asked: If you saw or overheard a race-based incident at work, WOULD YOU cooperate with an internal investigation about what happened? Specifically, would you be honest about what you saw/heard, if asked by someone in Human Resources or by a manager to tell your version of events?

I appreciate the honest responses to this. Thanks for sharing!

1) Anonymous said...
Yes I would. A close relative got a noose at work last week, and she saw the guy yesterday at work. She will be working at home, but right now her job hasn't disciplined the guy yet. Appartently they have 30 days to investigate the complaint. She does have witnesses, but it's a matter if they are willing to speak the truth or not. Either way she's cover, becasue EEO was called before she had a chance to call them.

2) Anonymous said...
If I saw or overheard a race-baced incident at work, I would be reluctant to provide too much information to the inside corporate investigators -- because 9 times out of 10 you need to think that they'd cover-up the incident. However, I would give as much information as possible to an outside investigator like the EEOC.

I reported an incident at work where a manager actually called a group of workers into her office and told them not to report a co-worker who had made racially charged statements and that was the last straw for me. I couldn't believe that any employee should have the right to intimidate and use their position as a means to keep people from speaking the truth. Unfortunately, intimidation was this companies style -- but I didn't realize to what extent until it was too late -- all the way up to the Corporate Headquarters.

The insurance company that I worked for was so bad that every employee was the state of fear and unconsciously under the control of the supervisors, managers and directors. They all knew how shrewd this employer was. Looking back, I believe that the Director could walk on a floor of 1,500 employees pull out a gun and just shoot anyone they chose and everyone would claim that they knew nothing about it or even heard the gun go off. It really didn't matter if that employee was black, white, green or purple. If management wanted that person dead, they were dead. Every single person who complained got canned for some of the most bogus things you would believe. Their favorite claim was theft of some sort so that they could say that the person was terminated for gross misconduct. They did not care about the persons reputation, their community activity, their family -- the insurance company intentionally encouraged the gossip to be spread because they knew that they could get away with it.

The Human Resources dept was a master at altering documents, omitting pertinent information, using psycho-social manipulation, paying people off through third party sources to get information for them and hacking computers. I had people calling me up using tape recorders and everything and reporting everything back to their contact source all for a pat on the head, a couple of bucks and a cookie. You would never believe the lengths to which an opportunist will go.

The Unemployment Administrative Law Judges were like people were just as bad. I honestly believe beyond a shadow of a doubt that they were working for the employer. They were so eager to side with the employer and railroad you in order to accomplish the employees desired end.

I know what it's like when you are surrounded by people who have no integrity and are willing to do anything to please a corporation.

3) Anonymous said...
I would be reluctant to participate in an internal investigation. However, I would. Internal investigations usually doesn't amount to anything but I would participate anyway. Now I would be 100% willing to participate in an external investigation - EEOC.

I have to believe to some degree the EEOC's investigation is fair and have no undue influence from Management.

4) Anonymous said...
I would without a doubt. . .and would make it clear that -- as an individual -- I do not stand for that type of behavior. And, as a company, they shouldn't either!!

Monday, June 22, 2009

Last Week's Scheduled Posts Didn't Update to Blog

I apologize. I was going out of town at the end of last week and scheduled two posts for automatic updates to my blog on Thursday and Friday. Neither of those posts were uploaded, which I am seeing now that I am back.

I aim to have daily updates on the site because the issue of race discrimination, harassment, and retaliation are still plagues that many Black workers struggle with each day.

Please have some patience with me, since there are sometimes technical glitches with the site.

Thanks! There's a new post below.


EEOC: Black Workers Fired for Race and Whites Accused of Being "Race Traitors"

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.

This legal brief shows some of the overt race-based practices still being used by some employers, which includes firing Black workers simply based on their race AND mistreating non-Black workers for being associated with Black coworkers and their family members. In fact, non-Black workers were called “ni**er lovers” and “race traitors” for associating with Blacks. Yes, that’s quite overt! No mystery here. See the details of this case, which was settled for $500k and included a sex discrimination charge, below:


EEOC Said Restaurant Created Hostile Workplace for Black and Female Employees

PADUCAH, Ky. – On June 16th, the U.S. Equal Employment Opportunity Commission (EEOC) announced a class litigation settlement under Title VII of the Civil Rights Act for one half million dollars and significant remedial relief in a case against Fire Mountain Restaurants LLC, doing business as Ryan’s Family Steakhouse (Ryan’s).

According to the EEOC’s lawsuit, filed in September 2008 in U.S. District Court for the Western District of Kentucky, Paducah Division (Civil Action No. 5:08-cv-00160-TBR), Ryan’s subjected black and female employees to a sex-based and race-based hostile work environment, as well as adverse terms and conditions of employment. In some instances, black workers were terminated because of their race. The EEOC charged that white employees were also harassed because of their association with black coworkers and family members. The mistreatment included being referred to as “n----r lovers” and “race traitors” by white managers.

The EEOC also asserted that female workers were harassed because of their gender, and all complainants suffered retaliation for reporting the discrimination. The sex-based hostile work environment included male managers physically intimidating women, making sexual advances, and calling them gender-related epithets such as "b-----s."

“Any company – whether large, mid-sized or small – should know better than to allow discrimination and harassment to run rampant,” said EEOC Acting Chairman Stuart J. Ishimaru. “No one should ever have to endure a hostile workplace in order to make a living. Employers that continue to violate federal anti-discrimination laws risk enforcement action by the EEOC.”

EEOC Regional Attorney Laurie Young of the Indianapolis District Office, which has jurisdiction for Kentucky, said, “We are pleased with the monetary relief obtained for the seven class members in this case, particularly in light of the company’s bankruptcy and reorganization proceedings. Further, the remedial relief contained in the consent decree, which is binding on any successor, will help create a discrimination-free workplace going forward.”

Buffets Holdings, Inc. and all of its subsidiaries, including Fire Mountain Restaurants, LLC, filed voluntary petitions for reorganization under Chapter 11 of the U.S. Bankruptcy Code on January 22, 2008, in the U.S. Bankruptcy Court for the District of Delaware (Buffets Holdings, Inc., et al., Case No. 08-10141-MFW). On March 11, 2009, the debtors filed their Third Amended Joint Plan of Reorganization and the Plan was confirmed by the Bankruptcy Court on April 17, 2009.

The parties settled the case pursuant to an EEOC consent decree. Under the consent decree, and as compensation for pre-petition harm, three claimants will each receive $25,000 as allowed unsecured non-priority claims, while three others will each receive $50,000 as allowed unsecured non-priority claims – all to be paid pursuant to the confirmed Plan. A seventh claimant will receive two separate allowed unsecured non-priority claims, one for $25,000 and one for $200,000, both to be paid pursuant to the confirmed Plan. As compensation for post-petition harm, four of the claimants will also receive a portion of a $50,000 cash settlement fund for compensatory and punitive damages.

Along with the monetary relief, the two-year consent decree provides for substantial remedial relief. The Paducah restaurant is enjoined from engaging in harassment on the basis of race and sex and from retaliating against employees who complain about it. The employer also agreed to monitoring by the EEOC, training its managers on anti-discrimination laws, and posting a notice stating its commitment to maintaining an environment free of racial and sexual harassment and retaliation. The consent decree is binding on any successors and assigns in interest.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available on its web site at www.eeoc.gov.

Wednesday, June 17, 2009

Question of the Day: Would You...

If you saw or overheard a race-based incident at work, WOULD YOU cooperate with an internal investigation about what happened? Specifically, would you be honest about what you saw/heard, if asked by someone in Human Resources or by a manager to tell your version of events?

If yes, what would make you speak up? Would it have to be something that happened to a close coworker at work or would you also speak up for a coworker you hardly knew?

If not, why? Would you fear retaliation? Do you think it's just not your business? Do you think you wouldn't put yourself on the line because most people wouldn't do the same thing if the situation were reversed?

I'd love to get some feedback on this. Post an anonymous comment, if you don't want to include a name/screen name!

Tuesday, June 16, 2009

What is an Affirmative Defense?

If you file a charge against your employer alleging some form of race discrimination (violations of the Federal statutes of The Civil Rights Act), your employer will have to determine how to respond to the allegations. Whether you have filed a complaint with an organization such as the Equal Employment Opportunity Commission (EEOC) or you have sought the assistance of an attorney, your employer isn’t very likely to instantly assume full responsibility for any infractions of Federal statutes.

One option your employer has is to file an affirmative defense. With an affirmative defense, your employer won’t have to deny any charges that have been brought. However, the employer will be able to raise extenuating or mitigating circumstances in order to avoid responsibility in a civil case.

An example of an affirmative defense would be an employer arguing that it exercised reasonable care to prevent and promptly correct harassment. Reasonable care generally requires an employer to establish, disseminate, and enforce an anti-harassment policy and complaint procedure and to take other reasonable steps to prevent and correct harassment.

Despite the attempt to rely on having written policies in place, it’s important to remember that there are no "safe harbors" for employers based on the written content of policies and procedures. However, this doesn’t stop an employer from using this argument in their defense. And, it doesn’t stop the complaining employee from proving that the employer did not take steps—or took inadequate or delayed steps—in preventing and/or correcting harassment.

Another example of the affirmative defense would be an employer arguing that a complaining employee did not take the reasonable and necessary steps to avoid harm from race-based harassment, retaliation, etc. by not reporting the abuse to management or taking advantage of any preventive or corrective opportunities.

An employer who can prove they exercised reasonable care may not be liable for unlawful harassment if the complaining employee could have avoided all of the actionable harm. If some but not all of the harm could have been avoided, then an award of damages will be reduced accordingly. The complaining employee doesn’t have to prove they showed reasonable care…that burden falls on the employer. The employer must show that the employee’s failure to complain of abuse was unreasonable.

Keep in mind, even if an employee doesn’t complain the Federal statute recognizes that there may be legitimate reasons for silence on the issue. For instance, if an employee has seen other complaining employees subjected to retaliatory actions (e.g., fired, demoted, subjected to a hostile work environment, etc.), the employee would reasonably fear making a complaint. Additionally, if illegal abuse is so prevalent in the workplace that many people knew about it, the company would be liable for not addressing the problem because the abuse was so widely known that it is reasonable to expect that someone in authority knew of the problem.

Finally, if an employer files an affirmative defense, the employer must prove the validity of the defense. The employer can’t just state an affirmative defense and hope someone buys it. They must prove this defense.

Source: www.eeoc.gov

Monday, June 15, 2009

LEGAL BRIEF: Medical Center Will Pay $85k to Settle Race Discrimination and Retaliation Suit

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.

This legal brief will probably sound familiar to many readers. A Black worker could immediately tell that her direct supervisor disliked her because of her race. I know some non-Black people wonder how we can possible know the source of someone’s displeasure with us. They think we are race-baiting, when we talk about the reasons we’ve been targeted by a supervisor or coworker. What they fail to remind themselves is that we’ve been Black our whole lives. Our “body of work” has long taught us how to identify overt racism AND how to pick up on signs of covert racism.

What people fail to realize is that racists often aren’t as smart as they think they are. They don’t get away with acts of workplace racism because they were geniuses. They get away with acts of racism because of tolerance and encouragement of racism and systemic issues in some workplaces, they get away with racism because of intimidation and fear, they get away with racism because of legal requirements of proof, which may be hard to meet for some victims because they didn’t know what to document or how to communicate about what was happening, and they get away with it for many other reasons.

SMARTS is not often one of the reasons they succeed in targeting non-White workers. Racists are protected by companies that refuse to be accountable for what's taken place on the job and who fear financial liability for what they KNOW happened at the job. So, a racist is often protected with false statements and positive character references and by hiding past incidences and marginalizing what they've done. But, this is done to protect the company. Again, it's not being done because the harasser was outsmarting everyone. Everyone knows what the truth is. One side, the powerful business with more resources, has the means to make the truth appear to be different. And, in that reality, NOTHING HAPPENED and our racist is a great person.

Anyway, this Black worker was targeted immediately by her supervisor and was later fired for complaining about the denial of a promotion and harassment. Read below for full details:



Medical Center Unlawfully Fired Black Woman Who Complained About Race Discrimination, EEOC Charged

DETROIT – Muskegon Family Care, a family medical center, has agreed to pay $85,280 and provide substantial injunctive relief to settle a race discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s suit (Civil Action No. 1:08-CV-618, filed in U.S. District Court for the Western District of Michigan), Muskegon Family Care subjected Iris Towers, an African American supervisor at its Getty Road clinic, to race discrimination and retaliation by failing to promote her and firing her after she complained about ongoing racial harassment. From the start of her employment, the EEOC said, Towers faced an uphill battle because her direct supervisor displayed an immediate and ongoing dislike towards her because of her race. Even though Muskegon Family Care was aware of the discriminatory animus Towers’s supervisor harbored against her, it allowed the harassment to continue and let the boss terminate her as punishment for the complaint.

Race discrimination and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a voluntary settlement.

The three-year consent decree settling the case requires Muskegon Family Care to pay $85,280 to Towers and to institute new anti-discrimination policies and procedures. Muskegon Family Care is also required to conduct annual training for all of its employees on Title VII’s requirements; post a notice to employees at the clinics about the decree; provide reports to the EEOC regarding its training; and permit the EEOC to monitor its compliance by allowing the agency to enter and inspect its clinics during normal business hours.

“This is a favorable resolution for everyone,” explained EEOC attorney Nedra Campbell. “Muskegon Family Care has committed to making significant changes that should be beneficial to both current and future employees as well as the medical center.”

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

Friday, June 12, 2009

Keep Track of All Actions Taken Against You

As soon as you feel you are the victim of a tangible employment action (e.g., malicious suspension, malicious demotion, false and malicious performance evaluation, baseless denial of a promotion, forced transfer to a menial job or hard to reach location, a pay cut under false pretenses, etc.), you should create and maintain an employment action log.

An employment action log can help you maintain a chronological record of every negative employment action that your employer executes against you and can help show that your employer has begun targeting you. An employment action log should contain detailed information about:

--The date of the employment action;

--The specific kind of employment action taken (e.g., details about a suspension);

--Your employer’s stated reason for the employment action;

--The name of the person who informed you of the action and anyone in attendance at the meeting;

--Why the action is unjustified or how it violates company policy;

--Your official response, if any, to the employment action (e.g., a memo against the action); and

--The next steps you need to take to deal with the action (e.g., contacting HR, filing an internal complaint, etc.).

An employment action log can be helpful in proving harassment and retaliation by showing that employment actions taken against you were unjust and meant to negatively impact your position and career, to intentionally cause you emotional distress by creating a hostile and offensive work environment, were designed to set you up for future employment actions (including termination), and/or were a method of punishing you for complaining of mistreatment, misconduct, etc.

An employment action log can also demonstrate that your employer is violating its own written policies and procedures. For instance, if you are placed on probation based on false allegations, you can go to your company’s personnel manual to see how your employer is supposed to handle management or personnel issues.

If the personnel manual says that an employee should be given 1) an oral warning; 2) a written warning; and 3) be placed on probation, your employer would have to answer why they jumped to step #3 of their own process to implement the employment action of placing you on probation, with termination potentially warranted at the end of a specified number of days/months. They have to justify why your behavior was allegedly so egregious that they violated their own policies.

Remember to faithfully update your log as events happen, so that you are documenting incidences that are fresh in your mind.

Wednesday, June 10, 2009

Too Many Businesses Deal with Workplace Racists the way the Catholic Church Dealt with Pedophile Clergymen!

Whenever I speak or write about how some Whites in the workplace discriminate against, retaliate against, and harass Black workers, some people get upset. They argue that there is no tolerance or encouragement of that behavior in the workplace. They argue that there is no favoritism and there are no biases in the workplace. They give a la-la land view of what's really going on.

In my view, too many businesses treat active workplace racists the way the Catholic church treated it's pedophile clergymen. Anyone familiar with the church sex scandals knows that for decades clergymen were simply moved from town to town and church to church in order to cover-up their crimes. The church didn't want to admit what was going on, didn't want to admit they were aware of the incidents, didn't want to punish their own, and didn't want to accept one ounce of scrutiny or liability for allowing immense harm to happen on their watch.

That is often what we see in the workplace. If a Black worker can get the tiniest bit of acknowlegement that a White person has violated their workplace rights, we can still often not get that person terminated. We see them possibly transferred to another department or site location. Or, we may see them slightly demoted. Or, we may see them forced to go to sensitivity training. Or, we may hear that the person had some punishment that we, the victim, can't be told about.

But, the tormentor is usually lingering around somewhere and is given an opportunity to thrive or prey upon others, once again. The victim is left behind in emotional turmoil and may not even have a job, since they may have resigned due to stress or forced termination.

So, I'm amazed when people act as though White workers, who are guilty of illegal behavior, are always dealt with appropriately by businesses. That's just not reality.

Think about the last time you knew of a White person getting immediately fired for violating the employment and civil rights of a Black worker.

Now, think about how many chances White workers get to redeem themselves before the slightest employment action takes place.

You can hardly get a White worker suspended, let alone fired, for violating your employee rights!!!

Do you know how far a White employee, manager or executive has to go before that sort of shoe is dropped, particularly when race is an issue that’s linked to their potential termination?

A White person often has to do something extremely egregious to be punished by another White person because another White person is always ready to provide an excuse for them or is always willing to believe a load of bullshit that wouldn’t pass the snuff test if the same explanation were to be given by someone Black.

More importantly, everyone in the corporate structure is often more interested in protecting the business than in doing the right thing--getting rid of actively racist employees and managers.

God forbid anyone admit wrongdoing and have to potentially pay a financial settlement to correct the problem. It's all about the dollar signs, even when a black worker simply wants an apology!

If businesses stop using the Catholic church protection model, maybe we can flush out all of the those people who would violate the rights of others. If we ever showed that, as a society, we REALLY don't tolerate this behavior, we could get rid of all the cancerous individuals that harm productivity and put companies at risk.

I don't know if that day will ever come, but until it does, we must continue to fight.

Tuesday, June 09, 2009

LEGAL BRIEF: EEOC Suit Alleges Black Worker Locked in Tool Shed with "Jail" Scrawled on Door and Threatened with Nooses

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.

This case shows the level of overt racism that some of us still have to deal with in the workplace. There is nothing subtle about what was going on in this Florida case, which included locking a Black worker in a tool shed and spray painting the word “jail” on the door, putting a noose around the same Black worker’s neck, threatening to decapitate that Black worker, and more.

To prove that such overt racism was tolerated and ENCOURAGED, the White worker that is alleged to have done these things was rewarded with a high-paying job.

This type of case makes things more cut and dry because it hits at the old-school methods of intimidation and harassment that our elders dealt with in the past decades and really is indefensible. There would be no business-related reason that would allow nooses to be thrown around the necks of Black workers. There really is no lie you can tell to get around what was done, so long as the incidents can be proven through photos (of nooses, the shed door, etc.), witnesses, emails, formal internal complaints, etc.

To learn more about this case, see below:


EEOC Says Crom Companies Subjected African Americans to Racial Insults, Physical Abuse

MIAMI – The Crom Corporation and Crom Equip­ment Rentals violated federal law when they allowed the racial harassment of black employees, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced on June 3rd . The EEOC also says the Florida-based construction companies unlawfully suspended an African American employee for complaining about severe racial insults, threats and physical abuse.

According to the suit, a white employee at Crom’s Holly Hill, Fla., location locked a black coworker in a tool shed and then spray-painted the shed door with the word “Jail.” The EEOC said that the same white employee also put a hangman’s noose around the black employee’s neck, hung the noose in his work area, and threatened to decapitate him. Another African American employee was offended when he saw the noose hanging at the Holly Hill site. Crom was aware of the harassment but didn’t stop it, according to the suit. Instead, the EEOC said, Crom suspended the black worker after he complained about the noose and rewarded the white offender with a higher-paying position.

“It is shocking and sobering that such cruelty can still occur at an American workplace,” said EEOC Acting Chairman Stuart J. Ishimaru. “The EEOC will not falter in its quest to put an end to such injustice.”

Racial harassment violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Northern District of Florida (EEOC v. The Crom Corporation, Case No. 1:09-cv-00128-SPM-AK) after first attempting to reach a voluntary settlement.

EEOC Miami District Director Jacqueline McNair said, “Even in 2009, nooses still make their way into work environments. The EEOC will vigorously prosecute cases with this sort of workplace terror.”

EEOC Miami Regional Attorney Nora E. Curtin, added, “The nightmarish abuse endured in this case is appalling. The hangman's noose is a haunting symbol of racial hatred and must never be tolerated. Employers must take swift and meaningful action to punish those responsible for such outrageous conduct.”

Crom Corporation and Crom Equipment Rentals sell concrete water tanks and scaffolding and operate throughout Florida and in at least nine other states.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

Source: http://www.eeoc.gov/press/6-3-09.html

Friday, June 05, 2009

"I Spy" All Around The Office

The EEOC web site contains an example of an adverse action (threats, increased surveillance, termination, unjustified negative performance evaluations, etc.) that reminds me of illegal corporate behavior that is very familiar to me. The EEOC example is this:

A Black worker has filed a charge alleging that he was racially harassed by his supervisor and co-workers. After learning about the charge, the Black worker’s manager asked two employees to keep the Black worker under surveillance and to report back about his activities. According to the EEOC, the surveillance constitutes an "adverse action" that is likely to deter protected activity (opposing discrimination/harassment), and is unlawful if it was conducted because of the Black worker's protected activity. The statutory retaliation clauses prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a complaining employee or others from engaging in protected activity.

Some of you may have experience with complaining about racially-based mistreatment and then suddenly having coworkers subjecting you to heightened scrutiny at the employer’s request. Suddenly, everyone thinks they are starring in "I Spy."

Some companies will go all out in their recruitment efforts to get corporate spies, particularly in race-related incidences. If the employer is convinced that someone in their employment did violate anti-discrimination, anti-harassment and/or anti-retaliation statutes, the employer may feel compelled to do a James Bond in order to find anything that can provide the company with cover.

All many employers can think of is how they can pull a bait and switch. Instead of focusing on accusations of race-based violations, the company may focus on presenting the complaining worker as a habitually problem employee. It is not uncommon for employers to come up with negative patterns of behavior to use against a complaining employee. So, they may ask coworkers to watch the complaining employee and then they may try to use anything perceived as ammunition against the employee as justification for the treatment of the complaining worker.

A harassed employee may be having problems sleeping, may be physically ill due to the stress of their work situation, may be depressed, etc. This employee may have a day or two of getting into the office late because of the dread they feel about being a target at work. Coworkers who are assigned to watch the employee may report two instances of lateness in a 2 week period, for example. An employer might then use the spies/coworkers as evidence against the complaining worker. They can do this by presenting the complaining employee as someone who’s had a chronic problem with attendance, which is a lie. And, then they can use the spies as corroborating witnesses to their position. During an investigation, even without written documentation citing a problem with lateness, an employer might be deemed credible, when making false accusations about work attendance/punctuality.

Now, accusations of lateness have nothing to do with the allegations from the employee that they've been subjected to race-based mistreatment. However, an employer would rather have that discussion (about fake performance issues on the part of the complaining employee), then deal with the realities of their work environment.

This may sound paranoid, but it’s not. I had a coworker, who couldn’t keep it to herself that she was coming into work early and staying late to spy on her manager at the request of authorities within her department. She was told to rummage through her manager’s desk for anything that could be used against the manager. Previously, this manager was accused of playing the race card and of being a race-baiter, who was only interesting in filing a race-based lawsuit against the company. So, the company wanted this manager’s office nearly ransacked in order to find out what she was up to, if she was informing anyone of her issues in the office, if she had sought outside assistance against the company, etc.

This is just a warning that you should be careful with how you judge your relationships at work. It is fine to trust some people you work with, but you should remember that many people can have their heads turned by promises of promotions, bonuses, etc. Be careful about sharing private information about your complaint and about speaking about your mistreatment with coworkers. You don’t know who is a company spy.

If you do have suspicions that you are being watched by corporate spies, you should document any behavior, words or actions that support this perception. You should be sure to include these suspicions in any report of potentially illegal behavior as adverse actions are illegal.

If you are being watched, it may be part of your employer’s efforts to stop you from engaging in the protected activity of complaining about racially-based mistreatment/violations of civil rights statutes. The use of corporate spies can also be used as a signal to other employees that they will receive the same treatment, should they ever decide to complain.

Source: http://www.eeoc.gov/policy/docs/retal.html#IIpartD

Thursday, June 04, 2009

Your Hostile May Be Different From My Hostile!

We each go through our own little versions of hell, when we’re combating racism on the job. While there may be some similarities with the things we go through (e.g., being isolated from staff, being ignored, being called by racial epithets, etc.), there are so many nuances to our experiences that no two hostile work environments are really the same.

Black employees need to really become familiar with the term a “hostile work environment.” Far too often, I think we brush off a lot of the offensive behavior at work because we may not have been called a ni**er or we may not have been subjected to a noose hanging from a light fixture. But, if we are dealing with behavior that is persistent and pervasive, that makes it hard for us to do our jobs, we may need to have someone look into whether or not Federal statutes are being violated in regard to our treatment.

A hostile work environment falls under harassment in Title VII of the Civil Rights Act. Here’s what the EEOC has to say about it:

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. Moreover, investigators must be sensitive to the possibility that comments, acts, or symbols that might seem benign to persons of the harasser’s race could nevertheless create a hostile work environment for a reasonable person in the victim’s position.

Here are a couple of examples of a hostile work environment that show the differences in abuse. It includes everything from being called a ni**er to being required to work longer hours based on stereotypes, to being subjected to racially coded remarks, being set up for failure, etc.:

Reedy, 333 F.3d at 908-09: [The] working environment of Plaintiff, Black, was so objectively abusive as to alter the conditions of his employment where, over a seven-month period coworkers called him and other Black employees “n------” on numerous occasions and threatened them with violence, and the company allowed racial slurs, pictures, and threats to linger in the men’s bathroom.

Aman, 85 F.3d at 1078-84: [A] reasonable jury could find two Black employees were subjected to racially hostile environment where managers and coworkers repeatedly made coded racial remarks, and managers required them to do menial tasks outside their job description, yelled at them, and made their jobs more difficult by withholding necessary information, refusing to deal with them, and falsely accusing them of misconduct.

Ross v. Douglas County, 234 F.3d 391, 393 & 395-97 (8th Cir. 2000): affirming verdict in favor of 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.”

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.

Remember, you don’t have to be called the n-word or be threatened with the KKK or nooses in order to prove a hostile work environment. The totality of your abuse will tell the story regarding whether or not you were subjected to an environment that made it difficult or impossible to successfully do your job.

This is why you must document everything happening to you. If you are being ignored (e.g., phone calls not returned, emails not returned, ignored when going to someone’s office to speak to them, etc.), document this behavior because you will need evidence of this later to prove a hostile environment.

Going by this example, you could send an email to this person (not a voicemail) stating that you’ve been leaving email and voice messages for them, but have not received an answer. Or, stating that you came to see them, spoke to them, they looked at you, and went back to their work without responding to you. Ask if you can discuss any issues to create a more positive work experience and clarify any issues. If this email is ignored, forward a copy to your supervisor and ask them to address the problem. If this is ignored, you can contact HR for assistance.

If the person ignoring you is your boss, you can follow the same steps. If they ignore you, you can go straight to that supervisor’s supervisor and/or to HR.

These are tips just for the example provided about being ignored. You get the point. Document everything!! If you’ve been called a name, you want to do the same thing. Get the racial epithet in writing. Immediately shoot off an email stating the behavior is unacceptable, hostile, and offensive. Start plugging in those words!! HOSTILE WORK ENVIRONMENT!! OFFENSIVE WORK ENVIRONMENT!!

Tuesday, June 02, 2009

Basic Questions You Will Answer In a Complaint

If you file a complaint of discrimination, harassment and/or retaliation, you will have to answer many questions in order to get the investigation rolling and to prove your version of events. If you are dealing with an internal (company-led) investigation, the investigator (HR, etc.) may or may not be very thorough, depending on how they decide they want to proceed. At a company that is used to stone-walling these complaints or has a pattern of derailing race-based complaints, they may not ask many questions as a means of finding that the complaint is baseless/without merit.

However, a fair and objective investigation would call for a series of questions, which may lead to other questions or revelations. Anyway, the basic questions you should be prepared to answer in an investigation include:

• Who is bullying, intimidating, discriminating or retaliating against you?

• What specifically happened?

- What comments were made?
- What actions were taken?
- What day and time did this occur?
- Was this a one-time incident?
- Repeat? If so, how many times did this happen? (describe each situation)
- Is it still continuing? If so, what was the most recent incident?

• What was the impact? (state the professional and personal consequences that occurred as a result of the actions taken against you)

-Think about tangible employment actions, which are any actions taken by employers or their agents that impact hiring, firing, promotions, transfers, disability etc. Describe how certain actions led to you being denied a promotion or terminated from your job, etc.

- Are you now being subjected to an offensive work environment marked by intimidation, harassment, bullying, disparate/unequal treatment, etc.? If so, describe these conditions.

• How did you respond to the situation?

- Who did you speak to/report the incident to? List dates, times, and responses.
- What specifically did you tell them? Describe fully--this will help you keep track of what authority figures knew and when they knew it.
- Did you correspond with your superiors or Human Resources in writing? List names, dates of correspondence, and responses. (Note: If you participate in face-to-face meetings, you should always follow-up the meetings with a quick email in order to create an undeniable record of what transpired.)
- Did you address the individual who is the perpetrator of this incident? What was their response? Did you come to a solution?

• Who are your witnesses? List their names, titles, and the dates of incidences they observed.

• Who else has been harassed, etc. by this person? List their names and any information that is available regarding their harassment, including dates or the approximate time frame of the mistreatment and illegal activities.

- Does the perpetrator have any outstanding complaints against him/her? List specifics, if available.

• How would you like to resolve this issue?

- What would you like to happen? (your dream scenario) What is the minimum that you would find as an acceptable solution to resolve the problem? For instance, you may only want an apology from the perpetrator or you may want an apology, restitution of your salary, and the perpetrator to be placed in training that is appropriate for the offense they committed (e.g., diversity training).

Monday, June 01, 2009

Common Types of Evidence

Every so often, I like to reprint this list that details some of the common types of evidence that employees can use to help prove a case of discrimination, harassment or retaliation.

Depending on where you work, the type of evidence you can gather may vary. There may be specific pieces of evidence that are particular to your field. When you are gathering evidence, you should consider what field/industry specific evidence you may need at a later time. Below is a starting point of items to consider when you are developing your evidence of harassment, bullying, intimidation, and discriminatory or retaliatory actions.

 Emails

 Memos and Other Documentation (reports, charts, etc.)

 Handwritten notes

 Voice Mail Messages (transcribe, save, and tape record)

 Documentation of Face-to-Face Meetings (You should write down what was said at any face-to-face meetings. Following the meeting, send an email to the person or people you met with in order to get the content of the meeting in writing. For instance, “We just met to discuss [insert the purpose of meeting] and you said that I was deficient in…”)

 Tape Recordings of Meetings or Conversations

 Witness Support/Evidence (notarized statements, corroborating testimony,

 Copies Of Performance Reviews

 Any Personal Logs of Events/Incidents

 Human Resources Records (your personnel file, timesheets, etc.)

 Corporate Personnel Manual On Policies And Practices

 Corporate Performance Review Guidelines

 Departmental Information (specific procedures, contracts, etc.)

 Organizational Charts and Records (corporate and/or department level)

 Federal Laws and Regulations Regarding Workplace Conduct (your company’s anti-harassment policies, anti-discrimination policies, etc.)

Again, this is only a starting point. Depending on your circumstances, there may be many other documents (administrative forms, financial reports, other employee timesheets, electronic files, etc.) that you would want to get your hands on in order to prove your case.
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