Friday, July 31, 2009
Thursday, July 30, 2009
No Post Today: It's My Birthday
Wednesday, July 29, 2009
Steps Employers Can and Should Take to Stop Harassment
When it comes to claims of racially-based harassment, companies do not like to respond—even though providing an adequate response to illegal behavior is in their best interest. Instead of squashing the careers of those who would harass a coworker or subordinate, many companies go into denial mode, which they believe offers some form of protection. In other words, if they didn’t know or “believe” that harassment was taking place, companies fool themselves into believing they are not legally liable for any damage that may have occurred to an employee’s career. But, deniability doesn’t automatically hold up under the law.
A company is legally responsible for preventing and stopping harassment from occurring. If you believe you are the victim of harassment (including retaliation and experiencing a hostile work environment), you should document everything that is occurring. You must show proof as to why your company must take action.
What can your employer do (or should be doing) to your harasser? Here are some options offered by EEOC regarding harassment in the workplace:
-- oral or writing warnings/reprimands
-- transfer or reassignment
-- salary cut
-- training or counseling of harasser
-- monitoring the harasser to ensure that harassment stops
As you can see there are light and hard-hitting remedies available. It’s your job to know that these options are available to deal with harassment and to suggest some stringent form of punishment is doled out to your abuser. But, you have to prove your case or your company will sleepwalk through your entire ordeal.
Document mistreatment, provide the names of witnesses who can verify your accounts and save harassing email and voicemail as proof that your abuser has gone overboard. Then, demand action is taken.
NOTE: Your employer cannot force you to transfer to another department to avoid your harasser. But, you can volunteer to move to another department if it is in the best interest of your career and/or mental health.
Tuesday, July 28, 2009
What is Unwelcome Conduct?
The problem with being in an environment like this (or being subjected to a rogue employee who behaves this way) is that some of us aren’t comfortable confronting or challenging someone who is being offensive. Even worse than remaining silent, some of us will actually laugh along with the racist because we are shocked, afraid to speak up or don‘t want to be looked at as a so-called race-baiter. The issue may be that we don’t know what else to do except laugh along with the person or we want to fit in with certain staff or the person making the so-called joke has authority over us. Regardless of the reason, there are sometimes factors that causes some of us to play along with a racist environment or situation.
If you are dealing with a person, who has no idea of self-censorship nor an understanding of what is acceptable and unacceptable behavior in the workplace or if you work in a work environment that tolerates or encourages this behavior, you need to make sure that there is an understanding that you find the behavior to be offensive and unwelcome.
According to the EEOC, unwelcome conduct is conduct where the alleged victim did not solicit or incite the conduct and regarded it as undesirable or offensive. When the conduct involves mistreatment or is racially derogatory in nature, unwelcomeness usually is not an issue, even when the alleged harasser and victim are of the same race. Sometimes employers argue that the conduct in question was not unwelcome because it was playful banter, and the alleged victim was an active participant. The facts in such cases require careful scrutiny to determine whether the alleged victim was, in fact, a willing participant.
In the case of Vaughn v. Pool Offshore Co., 683 F.2d 922, 924-25 (5th Cir. 1982), the court stated:
[The] trial court did not err in finding for employer where plaintiff used racial slurs along with his co-employees, other employees were subjected to the same obnoxious treatment as plaintiff, his co-workers expressed amicable feelings towards him, and plaintiff testified at trial that he did not believe that pranks against him were racially motivated or that he was singled out for abusive treatment.
The EEOC language and this legal decision show that there is a clear danger in playing along with a racist, when it comes to unwelcome conduct. Even out of fear, you should not get into the habit of laughing at any unwelcome comments or jokes or presenting yourself in any way that would make you appear to be a participant in what you may later call unwelcome conduct and conduct that made you feel like you were subjected to a hostile and offensive work environment.
I have seen people engage in race-based “play” at work. It only takes one comment to go a little bit too far before this “play” spirals dangerously out of control and presents some serious conflict or a potential legal issue in the workplace.
You shouldn’t engage in this behavior at work because it is unprofessional, above all else. Secondarily, if you should happen to go too far with a comment, you could end up written up, suspended, fired, etc. Finally, you don’t want to end up appearing to be complicit in the creation of a racially-charged work environment.
Do not be a participant in race-based joking. If you find any behavior that is offensive or unwelcome, let the person know you are offended, do not want to hear a repeat of their comments, and then document everything in writing.
If the problem or environment continues, report it. Make sure to present your log of incidences and a list of any witnesses, who can confirm that “joking” in the workplace has crossed all lines of professionalism, is offensive, and unwelcome.
Monday, July 27, 2009
A Person Who Directs Your Daily Work Activities DOES Qualify as a Supervisor!
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.
In Faragher, one of the harassers was authorized to hire, supervise, counsel, and discipline lifeguards, while the other harasser was responsible for making the lifeguards' daily work assignments and supervising their work and fitness training. There was no question that the Court viewed them both as "supervisors," even though one of them apparently lacked authority regarding tangible job decisions.
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.
On the other hand, 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." For example, an individual whose delegated authority is confined to coordinating a work project of limited scope is not a "supervisor."
Will Not Post This Thursday or Friday
I will have posts for Monday through Wednesday.
Wednesday, July 22, 2009
LEGAL BRIEF: Janitorial Service Screened Out Qualified Black Applicants
This legal brief is about racially discriminatory hiring practices in Chicago. A janitorial service had a high number of Black applicants, but very few Black workers. In fact, Black workers made up less than 2% of their labor force. According to the EEOC, the janitorial service screened out many qualified Black applicants in order to discriminate against them. For more details on this case, see below:
MAJOR CHICAGO CLEANING SERVICES PROVIDER SUED BY EEOC FOR RACE DISCRIMINATION
African American Employees Almost Unknown at Scrub, Inc., Federal Agency Charges
CHICAGO – Scrub, Inc., a Chicago janitorial services provider, violated federal law by discriminating against African Americans in hiring, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a race discrimination lawsuit announced on July 15th.
The EEOC’s administrative investigation which preceded the lawsuit revealed that although African American workers were a significant segment of Scrub’s labor market and applied for jobs in large numbers, they consistently made up less than two percent of Scrub’s work force.
Scrub provides janitorial services to the airline industry (at O’Hare International Airport), the hospitality industry and private schools.
Race discrimination in hiring violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (EEOC v. Scrub, Inc., Civil Action No. 09 Cc 4228) in the U.S. District Court for the Northern District of Illinois, Eastern Division; the case was assigned to District Judge Suzanne Conlon, Before filing, EEOC first attempted to reach a voluntary settlement through its conciliation process.
“This employer’s hiring practices systematically screened out numerous qualified black victims, and we are suing to seek justice on their behalf,” EEOC Acting Chairman Stuart J. Ishimaru said.”
The EEOC is seeking back pay, compensatory and punitive damages for Scrub’s discrimination victims. The agency also seeks injunctive relief, including rightful-place hiring of African Americans, training, and instituting policies, practices and programs which provide for equal employment opportunity for black applicants and workers.
John Hendrickson, the EEOC’s regional attorney in Chicago, said, “Assuring the freedom to compete for jobs on a level playing field is one of the fundamental components of the EEOC’s mission. Race discrimination makes free and fair competition impossible, and such discrimination is prohibited by the laws we are charged with enforcing.”
John P. Rowe, director of the EEOC Chicago District Office, said, “The EEOC made good-faith efforts to remedy the situation through voluntary conciliation. The agency has now determined that we need to move to the next step provided by law and challenge the discrimination in court.”
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.
Tuesday, July 21, 2009
Keep a List of All Employment Actions Taken Against 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.
Monday, July 20, 2009
LEGAL BRIEF: Supervisor Says, "Maybe He Just Likes Nooses!"
This legal brief is about a Tampa based company that allowed and even encouraged a racially hostile environment for Black workers, as well as for a White worker who sided with the targeted employees. Black workers were subjected to a coworker parking his vehicle with a noose hanging from it. After complaining, the superintendent suggested that the noose might not be racial because the White worker might just like nooses—nothing more and nothing less.
A Black worker was laid off for complaining about racially motivated abuse, including Black workers being referred to by the “n” word.
This case represents an example of overt racism. Many of us have experienced some form of racism at work, but it’s not often that it includes folks coming right out and calling you a nig*er and hanging nooses in your face in order to harass, threaten, and intimidate you. For more details on this EEOC complaint, see below:
WRS COMPASS SUED FOR RACE HARASSMENT; BLACK WORKERS SUBJECTED TO NOOSES AND RACIAL SLURS
Additional Discrimination and Retaliation Also Alleged by EEOC
CHICAGO – A Tampa-based environmental clean-up company violated federal law by discriminating against and racially harassing African American employees at its Lake Calumet work site in Chicago, including the display of hangman’s nooses, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced on July 16th.
According to the EEOC’s suit, WRS Infrastructure and Environmental, Inc. (doing business as WRS Compass) subjected its black workers to a racially hostile work environment, discriminatory terms and conditions of employment, and unlawfully retaliated against an employee when he complained about the discrimination. The EEOC also charged that WRS created a hostile work environment for a white worker who associated with African American employees.
According to John Rowe, the EEOC’s district director in Chicago, black employees were subjected to a noose exhibited on a white co-worker’s vehicle parked at the job site. When the workers complained to the superintendent about the noose, he took no action, but rather responded that “maybe the white employee liked nooses.” Rowe said the EEOC’s pre-suit administrative investigation also revealed that later a hangman’s noose was also left for an African American employee on the steering wheel of his dump truck.
Rowe added that the EEOC’s investigation found that white workers referred to black co-workers as “n----rs” and other racially derogatory terms. One of the white workers who stood up for the African American workers was referred to as a “n-----r lover” and subjected to other derogatory comments and treatment. After one of the African American workers complained about the harassment to management, he was laid off from the job. In addition, the EEOC alleges in its lawsuit that WRS subjected African American workers to less favorable equipment assignments and harsher discipline at the jobsite.
All this alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed its suit, captioned EEOC v. WRS Infrastructure and Environmental, Inc.,in the U.S. District Court for the Northern District of Illinois, Eastern Division, on July 15, 2009, after first attempting to reach a voluntary settlement through its conciliation process. The lawsuit has been designated Civil Action No. 09 CV 4272 and assigned to U.S. District Judge Virginia M. Kendall and Magistrate Judge Geraldine Soat Brown. The government’s litigation effort will be led by EEOC Supervisory Trial Attorney Gregory Gochanour and Trial Attorney Richard Mrizek.
John Hendrickson, the EEOC’s regional attorney in Chicago said, “Because of Title VII -- which is the law of the land -- there is no longer any place for racism in any American workplace covered by federal law, especially the virulent and open sort alleged here. Those days are over. Any company that still permits the unmistakably violent racist imagery of the hangman’s noose to be displayed in the workplace risks serious legal consequences.”
WRS Compass restores contaminated properties. According to its web site (www.wrscompass.com), WRS has over 600 employees and 12 offices nationwide, including the one in Chicago.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.
Friday, July 17, 2009
Employer's Will Often Attempt to Create Delays
Instead of engaging in a prompt and serious investigation of the facts, many an HR team will pursue a strategy of delay and then deny. They will prolong any investigation, hoping the employee will just let the issue die. Or, perhaps they will use the delay to retaliate against the employee, with the hopes of forcing them to resign (constructive termination) before the investigation is complete. Sometimes, the delay is used to give the false assurance that the investigation is being conducted thoroughly — leaving no stone unturned. The reality is that the company may be just using that time to come up with a counter defense to all of an employee’s arguments and evidence that validate illegal mistreatment in the workplace.
After all the hemming and hawing, these delayed investigations sometimes end up with the internal investigating team telling the complaining employee that they couldn’t find any evidence of wrongdoing on anyone’s part. Or, if HR acknowledges wrongdoing, HR may downplay the impact of any offending and illegal actions that the victim was subjected to. This may be followed by the employer promising the complaining employee that the offending employee or supervisor will be “dealt with.” In other words, the complaining employee may be promised that corrective steps will be taken to rectify the race-based harassment, etc.
But, what happens, when an employee is promised that misconduct will be rectified, but the employer does nothing to correct the behavior of the offending employee? And, is there something else afoot, when it comes to these delays in internal investigations?
When it comes to filing a complaint with an external agency (e.g., The Office of Human Rights or the EEOC), employees only have a certain number of days—after a race-based incident—to file a complaint. For instance, an employee may have 90 or 180 days to file a complaint with an outside agency.
So, the reality is that some companies will try to delay any internal investigation with the hopes of causing an employee to miss deadlines with outside investigatory agencies. If an employee files a complaint and it is accepted based on the fraudulent delay of the employer, the employer may try to argue that the complainant missed the deadline and, therefore, the entire investigation/complaint should be dismissed on that basis.
However, according to legal decisions an employer can’t engage in acts or omissions that serve to lull a complaining employee into foregoing a prompt attempt to vindicate his/her rights. Specifically:
“If an employer actively misleads an employee into missing the deadline for filing a charge by dragging out its investigation and assuring the employee that the harassment will be rectified, then the employer will be “equitably estopped” from challenging the delay.” (Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363 (D.C. Cir. 1998)
“An employer’s affirmatively misleading statements that a grievance will be resolved in the employee’s favor can establish an equitable estoppel.” (Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1531 (11th Cir. 1992)
So, if your employer has engaged in behavior that caused you to miss a complaint filing deadline with an outside agency, you can argue that you missed the deadline because you were misled and delayed by the intentionally manipulative actions of your employer. If the employer tries to get the complaint thrown out, based on the missed deadline, there is legal precedent for overruling that argument.
Thursday, July 16, 2009
Confidentiality Provides Protection Against Retaliation
Some employers, have actually spread information regarding employee complaints as a means of setting a complaining employee up to be isolated or targeted by coworkers because of the complaint. Employers can't break confidentiality in order to execute a campaign of terror against a complaining worker.
Additionally, once an employer is aware that a worker has complained of race-based or other harassment, they must take action. They can't let the worker dictate that no investigation or action of any kind will go forward. Harassment must be prevented and corrected by employers. Here's what the EEOC specifically says about confidentiality and a requirement to prevent and correct harassment:
An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis.
A conflict between an employee's desire for confidentiality and the employer's duty to investigate may arise if an employee informs a supervisor about alleged harassment, but asks him or her to keep the matter confidential and take no action.
Inaction by the supervisor in such circumstances could lead to employer liability. While it may seem reasonable to let the employee determine whether to pursue a complaint, the employer must discharge its duty to prevent and correct harassment. One mechanism to help avoid such conflicts would be for the employer to set up an informational phone line which employees can use to discuss questions or concerns about harassment on an anonymous basis.
Tuesday, July 14, 2009
The Use of Leave During Harassment and Retaliation
I’ve worked for an employer that falsified and manufactured timesheets to try to disprove a case against them that was being investigated by a state government agency. The reason this employer was unsuccessful in getting away with their submission of falsified documents was because the employee maintained a copy of all of her timesheets for that period and could show that new timesheets had suddenly “appeared” in her file (with completely different hours recorded). It would have been beyond her capacity to doctor an exact copy of the corporate timesheets, but much easier for her employers to do so. Keep this example in mind, when it comes to your own timesheets.
Keeping your timesheets will prove the amount of leave you used, if any, as a result of stress-related ailments due to harassment, discrimination or other illegal activities committed by your employer. You can use these timesheets to request a restoration of your sick leave used while you were being harassed and tormented at work. Timesheets will also show your general sick and vacation leave used, in case there is some later dispute about your attendance at work.
Keep in mind, when employers are being investigated or questioned, they want to show negative past behavior on your part. Leave is one area for employer’s to attack and is often one of the first targets they will hit.
If you are being targeted at work, the torment is designed to cause you to lose your focus, make errors, force you to resign, and to cause any other side effects that will play into your employer's hands. Your employer wants to drive you to drinking and to the verge of a nervous breakdown, but will question your sick leave during these attacks. Your employer will also attack legitimate reasons for being out of the office.
In my case, on the first day of an attack by my supervisor, my supervisor falsely stated that everyone questioned my hours in and out of the office and everyone wondered where I was. She told me, “We want you to come to work.” And, she said it as if I had been out of the office on a routine basis. The only absences I had from the office were pre-approved and involved work-related travel (out of state) and client meetings that took place off site. Yet, my supervisor was declaring that no one knew where I was, what I was working on, and wondered when I got anything done—because I was supposedly chronically out the office.
I have a copy of all my timesheets to prove that this statement was an obvious and intentional lie. But, it didn’t change the fact that my employer gave it the good old fashioned college try in order to justify their unjustified attacks against me. That’s why I am passing this warning on to you. Don’t let your employer have the only copy of your timesheets. It could come back to haunt you.
Finally, you may want to maintain a copy of your previous year’s timesheets as added insurance against manipulation by your employer. If your employer feels the need to create long-term problems with your employment, they may go well into the past to show so-called performance/attendance issues on your part.
Remember, even your legitimate use of sick leave and vacation leave may come under attack from your employer. When requesting advance leave, make sure your time off is approved, forms are signed by the proper authority, coworkers are notified of your schedule, your assignments are covered during your time out of the office, and that you have a copy of your signed and approved leave form in your personal file.
Final thought: If you’re under attack at work, always get a note from your doctor, if you’re out sick.
Monday, July 13, 2009
Document Your Warnings About Issues With Assignments!
Point blank…many managers and coworkers WILL NOT take full responsibility for the work being done by their staff or within their unit—when things go wrong! When things go right, they will scream from the mountain tops that it was their bold leadership, oversight, judgments, and execution that lead to success. When things go wrong, someone’s head must roll and they will do everything in their power to ensure that it is not their head!
I used to have a screen saver on my computer that always caused managers to frown. It read (and you’ve probably heard this before):
DO NOT EMPOWER ME SIMPLY BECAUSE THINGS WENT WRONG!
I have argued this, many times, when I have been blamed for a problem that was caused by decisions made by task leaders or project directors. For instance, I worked with a White manager that inundated junior-level staff (all Black) with petty changes to procedures on an assignment that did not enrich the quality of the work. Instead, the non-client requested changes bogged us down. The client wanted a quick turnaround time. We could finish the work quickly, so long as we didn’t have to add the petty steps being requested by the manager. When staff tried to warn this manager that his changes would slow us down to the point where we would probably miss the deadline, he didn’t want to hear it. What really sucked was that he was requesting pretty cosmetic and petty changes that didn’t impact the work being provided to the client, but were time consuming, even though it didn’t appear that they would be. We tried to explain to him why what seemed like minor changes, wouldn’t happen as quickly as he thought. He insisted we do the work as he specified.
The deadline was missed. So, the manager argued to his supervisor (after a client complaint) that we were slow, did not respect and could not adhere to deadlines, and that we were unfocused. He essentially made us sound lazy, which we know is a stereotype. And, he said things like, “I thought I could trust all of you to be professional enough to get this done, without me breathing down your necks.” Trust? We couldn’t be “trusted”? That was a character attack and an attack on our professionalism.
But, the problem wasn’t that we were “untrustworthy.” The problem was that he insinuated himself into our procedures, simply so that he could put his “signature” on the way the assignment was completed. He imagined the client’s jubilation with his petty revisions. But, we warned him that the deadline would likely be missed. Yet, he insisted that the work be done in his special way. When it blew up in his face, his changes were somehow not the root cause for the problem. The group I was working with was accustomed to successfully working on quick turnaround schedules, but somehow we were suddenly incompetent, lazy, and need micromanaging.
Unfortunately, we didn’t document in writing that we were told to add procedures and make cosmetic changes. And, this manager didn’t provide us anything in writing. He just did his usual number of racing into our work space, hyperventilating, and barking orders. We were in such a rush to try to get everything done, we made the mistake of not covering our as*es.
The manager insisted that we “misunderstood” him. He didn’t want all of those petty changes. Those were things that he wanted to “roundtable” and discuss as changes for future assignments. The fact that we “misunderstood” him was the problem. Yes, four individuals “misunderstood” the same information in the very same manner. And, we were chastised by management for not being serious about our jobs, not stating that a deadline could be missed (which we did), and for not respecting our clients. All that from one as*hole lying about reality!!
From that point on, I made it a point to…
ALWAYS PUT REQUESTED CHANGES AND WARNINGS IN WRITING--even when they come from a supervisor or manager. Keep a paper trail. Write something as simple as, "Hi [name]! As you requested, we will be changing our procedures to [name revisions]. However, I am still concerned about [warning]. We will follow your advice to [response to warning]."
Had we simply sent him an email stating the date and time of his revisions to our procedures and included a list of the changes, AND our concerns about meeting the deadline…it would have been impossible for him to argue that he was not aware that he was jeopardizing a deadline and causing us unnecessary work. You live and learn.
Learn the lesson that others have learned the hard way. If you warn someone that “x” will lead to “y”, PUT IT IN WRITING!
Friday, July 10, 2009
Back to Basics: Read Your Personnel Manual
If you are contacting HR, you can use quotes from the personnel manual to support your position or explain how someone is violating corporate guidelines, standards of conduct, etc. If you are going through and internal investigation, you will have an understanding of the guidelines, timing, determination, appeal, etc. of the internal complaint process.
If HR is aware that you have an understanding of this procedure, it makes them work harder and it makes violations of their own procedures that much harder to execute. HR will know that you are watching them, may be comparing their actions to the corporate guidelines, and that it is likely you are documenting everything!
Anytime you quote from the personnel manual, it lets HR know you’re familiar with the policies and procedures of the company. It tells them you have some idea of how things should be handled, the policies that dictate their actions/response to a situation, etc.
This also lets your company know how serious you are about your issue. This awareness should encourage your employers to follow their own written procedures. However, if they deviate from the procedures, they are simply providing you with documentation that is evidence of a potentially deliberate attempt to violate your employee rights and to ignore your complaint. Know your rights and hold your employer’s feet to the fire, when it comes to adhering to their own written policies and procedures.
Read the personnel manual and look for anything germane to your circumstances. Make copies of that section for your records or to show any additions or revisions that might be made associated with your complaint.
Thursday, July 09, 2009
The Basics: What is Discrimination?
Under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA), it is illegal to discriminate in any aspect of employment, including:
--hiring and firing;
--compensation, assignment, or classification of employees;
--transfer, promotion, layoff, or recall;
--use of company facilities;
--training and apprenticeship programs;
--pay, retirement plans, and disability leave; or
--other terms and conditions of employment.
Discriminatory practices under these laws also include:
--harassment on the basis of race, color, religion, sex, national origin, disability, or age;
--retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
--employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities; and
--denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
Employers are required to post notices to all employees advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.
Note: Many states and municipalities also have enacted protections against discrimination and harassment based on sexual orientation, status as a parent, marital status and political affiliation.
Wednesday, July 08, 2009
You Only Really Know Yourself, So Don't Make Assumptions About What Other People Will Do!
For instance, I had Black coworkers who loved to talk about "keeping it real" and being outspoken. They also loved talk about "those White people" being this, that or the other. But, as soon as their Black manager and close coworker got into trouble, they all pretended not to have seen or heard anything that supported her statements. They were all show and no blow. She was left to fend for herself by the so-call "real" ones. Some of these same folks ended up making false claims against her at the prompting of their White director and other higher-ups at the company.
I've seen how lunch buddies and after work hang out buddies can suddenly be swamped with meetings and conflicting appointments, as soon as they realized that another Black coworker was dealing with race-based issues. Their only concern was putting as much distance as possible between themselves and the target of the attacks. They too knew nothing about anything--even when they were witnesses. They too began to whisper about confidential information they were told about by the victim of abuse.
I had a Black manager, who collected afrocentric plates, pictures, books, etc. (and displayed them all over her office), who would dime a Black suborindate out in a heartbeat. To ease her conscience, she would feed the Black worker bits and pieces of information, but would go right back to working in the company's interest of getting rid of the offending employee. Specifically, she would encourage the victim to "find another job because it's just not worth it." I always wondered what reward she got for towing the company line.
My point is, you have to be very careful about revealing your innermost thoughts and details of your intentions, if you've become a target of any kind at work. Lots of people talk a good game, lots of people are fairweather friends, and lots of people have a secret agenda (getting in good with management, getting a bonus or financial reward, getting a promotion, etc.).
Don't talk about looking for a lawyer, obtaining a lawyer, filing a complaint (internally or externally) or providing any information, which would increase the likelihood of you becoming a bigger target at work.
I've watched Black coworkers, I've known for years, laugh about getting out-of-cycle pay increases and/or bonuses and saying they know they got it for their stance against a Black coworker. To see how they could take joy in falsely contributing to someone else's misery was one of the biggest shocks of my life. I knew people behaved that way, but I'd always hoped that no one in my inner circle could possible engage in such behavior AND enjoy it. But, you never really know a person. You can never bet your life that someone will be truthful or have your back.
Don't make judgements based on a person's color (e.g., a darker person would "get it" and could relate and could be trusted in a race-based crisis), speech/behavior (e.g., assuming you can or can't trust a Black coworker because you think they speak or act "White") or based on a person's level of afrocentricity (e.g., they wear an afro/braids/dreadlocs, have african artwork, calendars, etc. in their office, and/or frequently talk about issues of importance to African-Americans).
In the workplace, it's always smart to have a healthy dose of paranoia. Never forget it. Keep looking over your shoulder. Take it from a person who's had their office rummaged through by staff looking for evidence against a close friend and who's had a coworker brag about going through her supervisor's office at the end of each work day to collect evidence for the company. You never know what someone will do to get ahead.
Whenever possible, confide in friends and family outside the job.
Tuesday, July 07, 2009
Color Conversations At Work...
There is no reason to comment on anyone's color at work. Even a positive comment can cause serious problems depending on the person's attitude about their skin color. For instance, it's unnecessary to make comments that you find a coworker attractive because they are "light, bright, and damn near white" or with some other stupid and/or cliched comment. You also need not tell someone that you are fond of them because of their chocolate color. You can offend both of the individuals described in those two examples for any number of reasons. Some people are tired of having remarks made about their complexion, as if they are a skin color before they are a person. And, others may dislike their complexion--light or dark. You just never know with people.
You certainly don't want to make color remarks about workers of other races because it's not just in the U.S. that color, especially darker colored skin, is an issue. For instance, a darker complexioned person from India may not want you commenting on how similar they are in color to a Black person or how beautiful you find their "dark skin." You may think you are making a harmless remark, but based on that person's heritage, they may have been raised in a society that dislikes darker skin--similar to the U.S.
Furthermore, you may have some people of Hispanic origin who would be offended by comments about their complexion--even those you deem harmless. It's how the person takes the remark that will case problems at work and not just your intent.
If a White person makes comments to a Black worker about color, as many of us may have already experienced, it automatically changes your perspective on the person and, depending on the remark, may be really offensive.
I had a White, female coworker say to me, "Black women and your skin..." Then, she just trailed off leaving those words hanging. I immediately asked, "what about it?" Her response was to stammer and to say how "pretty" it was. But, I was ready to jump over the desk on her and didn't really feel that was the spirit in which she was speaking initially. Those words stuck in my head when dealing with her because it was like...is that all she sees when we work together and is race AND color something that preoccupies her mind?
Color is just another one of those subjects you should avoid at work. Even with other Blacks, it's a conversation that can take a turn for the worse. One comment about thinking light or dark skin is better than the other and all hell can break loose on the job.
There are some convesations that are better left for friends and family and should stay out of the workplace. Many people are unable to have adult conversations about sensitive topics and some people have hang-ups about color that you may not be aware of.
Monday, July 06, 2009
LEGAL BRIEF: Why Are You "So Black"?
The African diaspora is worldwide. Therefore, there are many groups of people who owe a darker complexion (or curly/thick hair, body type, facial features, etc.) to some connection to Africa.
Although this case is in Puerto Rico, this legal brief is very interesting because it reminds us that it's not just the "blackness" of actual Black folks that comes into question in the workplace. People of other races, particularly those who may be darker in complexion, may also be subjected to race and COLOR bias in the workplace. Color discrimination cases have been steadily rising over the past decade.
In this case, a dark Puerto Rican worker was asked why he was "so black" and was fired for complaining. That question could have easily been asked, and probably has been asked, to minorities in mainland U.S.A. For details on this EEOC case, see the case study below:
SAN JUAN FURNITURE COMPANY SUED BY EEOC FOR COLOR BIAS AND RETALIATION
Koper Furniture Harassed Employee Because of Dark Color and Fired Him for Complaining, Federal Agency Charged
SAN JUAN, P.R. – Koper Furniture violated federal law when it permitted a store manager to harass a dark-complexioned Puerto Rican employee because of his skin color and fired him for complaining, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.
Koper operates several furniture stores throughout Puerto Rico. According to the EEOC’s suit, EEOC v. Koper Furniture, Inc., Case No. 09-1563 (JAG), filed in U.S. District Court for the District of Puerto Rico, the store manager, who is also Puerto Rican, taunted the sales associate about his dark skin color and asked him why he was “so black.” The EEOC says Koper retaliated against the sales associate by firing him after he complained about the harassment.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a voluntary settlement.
“Federal law protects people from race and color discrimination in the workplace,” said Jacqueline H. McNair, district director of the EEOC’s Miami District Office. “Just as importantly, the law also protects those who complain to protect their federal rights to protest against discrimination. The Commission takes allegations of retaliation very seriously, and has brought this suit to ensure the integrity of exercising these rights.”
The EEOC’s Miami regional attorney, Nora E. Curtin, added, “Harassment based on skin color can be just as humiliating and degrading as other forms of discrimination. Employers must treat colorism complaints seriously and punish the perpetrators – not the victims.”
The EEOC has noticed a substantial increase over the past 15 years in discrimination charge filings based on color.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.
Friday, July 03, 2009
Written Policies and Procedures Don't Provide a "Safe Harbor"
I've posted these words before and I am posting them again because they are extremely important. Many employers will point to their anti-discrimination, anti-harassment, and anti-retaliation policies, whenever an employee insinuates or outright states that there is a race-based problem in the workplace. Employers can't wait to spit out lines such as:
--"We've got policies prohibiting that behavior;"
--"We don't tolerate that kind of stuff here;" and
--"That's not how we conduct business."
Everything goes back to the written policies, while enforcement of those policies seems to go by the wayside.
But, as the EEOC states, having written policies prohibiting violations of federal statutes ISN'T ENOUGH because there are NO SAFE HARBORS based on written policies alone.
So, if your employer wasn’t taking the necessary steps to ensure that its anti-harassment polices were properly enforced, your employer can wave a hard copy of their anti-harassment policy all day and all night and it won’t do them any good. Simply having a written anti-harassment policy won’t protect them from allegations of harassment nor will it prove that your employer has not violated Federal law.
For example, let’s say you’ve been harassed by your supervisor for approximately 5 months. You’ve tried to talk to your supervisor about the problem, but, since it hasn’t stopped the harassment, you’ve finally gotten the nerve to speak to the head of your department, as well as to Human Resources. In fact, you’ve had conversations with Human Resources repeatedly. Unfortunately, the harassment escalates--now that your supervisor knows you’ve gone over his or her head--and the offensive work environment continues for another 7 months. During that time, you lose weight, you can’t sleep, you are unable to get your job done because of the mistreatment, and you’re denied a promotion that you were promised at the beginning of the work year.
Suddenly, other staff begin to complain about the supervisor and Human Resources finally steps in to put the supervisor on written warning. The supervisor is also sent to supervisor’s training and is put on probation. HR sends out an email statement to all staff declaring, “As our policy states, we won’t tolerate harassment of any kind. We have identified a problem with one supervisor and have taken appropriate action to bring the behavior to an immediate end.”
The fact that HR finally did something may not mean squat under Federal law.
Your company has a written policy against harassment. However, during the 12 months you were being harassed they didn’t take any steps to prevent or stop the harassment. It doesn’t matter if your company’s HR department immediately put a stop to the harassment after other people began to complain.
In this example, you complained and you had been doing so for some time. While HR and the company did nothing, damage was done to you professionally, emotionally, and possibly physically (e.g., high blood pressure, depression, etc.)
Therefore, your company may not be able to successfully argue that the existence of their written policy and their final response is evidence they made a proper and forceful reaction to the illegal behavior. Your company may be liable for damages because they are responsible for the existence, length, and severity of the behavior and, ultimately, for the consequences to your career, such as being denied a promotion by your harasser.
This is especially true if knowledge of your harassment was widespread in your department or throughout the company and no one with authority ever did anything about it. The law expects employers to not only prevent harassment, but to take immediate corrective action to stop harassment. Employers are held to that standard, among others.
In this example, you may have legal recourse because your company did not show reasonable care in effectively implementing its own policies in a timely fashion. When you combine the slow response, which allowed the harassment to continue and escalate, with the company’s own policies, which may have listed penalties for harassment that were not taken by your employer until a year after the harassment began, you can see how you go about building and documenting a case that uses your company’s own policies against them and shows how they intentionally mishandled your complaint.
Thursday, July 02, 2009
Fighting False Allegations About Your Job Performance
I’ve had this tactic used against me and have seen it used against other Black employees. In one case, a Black male was complaining about discrimination and sexual harassment, in another case, a Black manager was the victim of retaliation for complaining about racially insensitive remarks made by a White manager, and, in my case, I participated (truthfully) in both internal and external investigations about these race-related issues. So, retaliation—among other things—was the company’s response to me, when I came up for a promised promotion.
I’d like to give you some quick tips on dealing with false attempts to slander your reputation, regarding your work ethic. These things worked well for me.
--Quote from performance evaluations. Use all relevant comments about your job performance that show you have a pattern of successfully and professionally performing your duties. Don’t forget to pull out quotes that speak to your personality/temperament at work. For instance, you could quote from a recent performance review where you are credited with being patient and flexible, which contradicts a sudden and false accusation that you are rigid and demanding.
--Print up copies of emails or cards that speak to your job performance, especially kudos from clients. This will also demonstrate you have a pattern of successfully and professionally performing your duties and that staff are aware of your positive contributions to your projects/assignments.
--Get signed statements from coworkers that show you are successfully performing your duties. If possible, get your coworkers to have the statements notarized.
--Print up requests for you to work with other staff – why would you be invited onto projects if it were known that you were underperforming?
--Ask specific questions about all blanket statements about your job performance. For instance, do not let someone accuse you of being rude without asking for examples and situations where you’ve supposedly shown this behavior.
--If someone is suggesting you have a pattern of exhibiting poor behavior or poor performance, ask (in writing) why this issue is just being brought to your attention and why you were not offered any suggestions for improving your performance. Remember, if you are not told of performance issues, and are, therefore, led to believe that there are no issues, you can’t accurately gauge your performance and live up to the expectations of your position. So, the onus for the alleged issue being a so-called continuing problem is on your supervisor/manager because they did not inform you of any alleged problems at work.
Wednesday, July 01, 2009
Documenting Abuse At Work
Unfortunately, there are some people in the workplace, who are venomous and nasty all of the time. They like to be sharp-tongued, sarcastic and offensive just for the hell of abusing their coworkers or subordinates. If they are racist, then they are likely going out of their way to abuse members of other races.
Regardless of whether or not you are dealing with part-time or full-time abuse at work, you have to make sure to document everything that’s going on. Even if you want to try to be the so-called bigger person in the situation or you are fearful of making a complaint for fear of looking like a whiner or out of fear of retaliation, you may change your mind at some point and want to make an official complaint to a supervisor or to Human Resources.
Once you know you are dealing with someone who intentionally or unintentionally shows they have no self-control, self-censorship, compassion, empathy or professionalism, you should immediately begin documenting this individual—even if it is a supervisor or someone else in authority. Remember, as you are documenting the individual, you should also be making them aware that you find their behavior to be rude and hostile and you should inform them that their method of communication does not work well with you. Ask if you can meet face-to-face to talk about how you can work better together and to come to some understanding. But, again, you should be documenting the person despite any efforts to correct the problem without managerial intervention.
You can do this by creating a log/tracking sheet to document any incidents of abusive, hostile, harassing or retaliatory behavior from the person. This might include threats to your job or threats of physical violence, having papers or other items thrown at you, being subjecting to name-calling or racial epithets, being screamed at privately or in front of coworkers, being given menial assignments, etc. All of this negative and potentially illegal behavior should be tracked.
On top of logging incidents with this person, you should also keep a list of witnesses. These witnesses can confirm your version of events to management or Human Resources. This will provide you with credibility about your complaints and will demonstrate to management that there is an issue that needs to be addressed. When compiling a list of witnesses, also keep track of the specific incidences that each person witnessed. By tracking witnesses with incidences, you will diminish any confusion at a later time and you will make it easier for an internal or external investigator to proceed with their questioning and to come to an understanding of what’s been transpiring at work.
You must also keep electronic and hard copies of rude, offensive, and hostile emails or other written correspondence with this person. Save the electronic files and forward them to your personal email accounts online (e.g., an AOL or Yahoo! or Google email account). You can also forward rude and offensive emails to the individual’s supervisor or manager raising the issue about the lack of professionalism being displayed and pointing out the hostile/harassing tone of the communication. Ask for the supervisor to address the issue with their subordinate. Make sure they understand that you will make a complaint to Human Resources, if nothing is done.
Another thing you can do is to save rude, offensive, and hostile voice mail messages. Never delete these messages. Better yet, use a tape recorder to record the message, in case someone else inadvertently deletes the message for you. You would not believe how corporate spies will rummage through your office on company orders. I’ve had it done to me and have seen this done to a coworker. Files in my office were moved, items on my desk were examined, contents of my drawers weren’t as I left them, etc. Always assume that someone might destroy your evidence and consider ways to preserve any key evidence you might need at a later time.
If the person is refusing to correct their behavior, despite your requests, seek out their supervisor and have a discussion—if you haven’t already done so. Present your evidence and state unequivocally that you won’t tolerate the abuse any longer. Ask the person what they plan to put an end to the abuse. If after a short time, nothing changes, contact Human Resources—or you can do this jointly with speaking to the supervisor. If your supervisor or manager is the perpetrator of the abuse, contact Human Resources or your supervisor’s supervisor/manager. If your supervisor is your abuser, you don’t have to notify your supervisor about your official complaint because the law recognizes the conflict with that scenario and does not force employees to report abuse and harassment to the abuser and harasser.
The nuclear option is reporting potentially illegal abuse to the EEOC, the Office of Human Rights or some other fair practice employment agency.
Remember, you do not have to subject yourself to abuse and harassment at work. Regardless of how well you are being paid, a hostile work environment is NEVER part of the deal!