Monday, May 31, 2010
LEGAL BRIEF: Nothing Like a Good Old Noose to Start the Day!
Dollins Construction Punished Black Workers for Complaining About Noose Display, Racist Comments, Federal Agency Charged
ST. LOUIS – Dollins Construction Company of Morley, Mo., has settled a race harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced on May 24th. The EEOC’s suit, which was filed last September, charged that Dollins, an unincorporated business, violated federal law by racially harassing three African American construction workers and then taking reprisals against them when one complained.
In its lawsuit (Case No. 1:09-cv-00137), the EEOC alleged that three black construction workers were subjected to unlawful racial harassment at a work site in Corydon, Ind., in the fall of 2006, which included the use of racially charged comments and the display of a noose. The suit said that after one of the victims complained about the conduct to the owner of the business in Scott County, Mo., they were not sent out on any further jobs.
Racial harassment 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 pre-litigation settlement through its conciliation process.
The consent decree settling the suit, which was filed in U.S. District Court for the Eastern District of Missouri, provides for the payment of $15,000 for lost wages and compensatory damages, implementation of an effective anti-discrimination policy, training for all management employees and reporting and monitoring requirements.
“No matter how small an employer may be or how limited its resources, the EEOC will use the full measure of the law to eradicate racist displays from any place of employment,” said EEOC District Director James R. Neely, Jr.
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, May 21, 2010
Discrimination Against Black, Female Caregivers
African American mothers with young children are more likely to be employed than other women raising young children, and both African American and Hispanic women are more likely to be raising children in a single-parent household than are White or Asian American women. Women of color also may devote more time to caring for extended family members, including both grandchildren and elderly relatives, than do their White counterparts.
Sure, discrimination against caregivers is a problem that can impact anyone in the workplace, male or female. But, it represents a particular issue for Black, female caregivers. In fact, caregiver discrimination against a Black worker (or Hispanic, etc.) might be compounded by other forms of discrimination such as race, color, gender, etc.
For instance, A Black, female worker, who is a single parent/caregiver may be discriminated against because of stereotypes about working mothers or single parents. AND, she may also be discriminated against because her supervisor has racist beliefs and/or stereotypes about Blacks and women.
Women of color also may be subjected to intersectional discrimination that is specifically directed toward women of a particular race or ethnicity, rather than toward all women, resulting, for example, in less favorable treatment of an African American working mother than her White counterpart.
Title VII of the Civil Rights Act prohibits discrimination not just because of one protected trait (e.g., race), but also because of the intersection of two or more protected bases (e.g., race and sex). For example, Title VII prohibits discrimination against African American women even if the employer does not discriminate against White women or African American men. The law also prohibits individuals from being subjected to discrimination because of the intersection of their race and a trait covered by another EEO statute – e.g., race and disability, or race and age.
If you suspect that you are the victim of caregiver discrimination and/or intersectional discrimination (e.g., a Black, female caregiver), you should report your suspicions to someone in authority at your organization or to Human Resources. Or, you can file a complaint with an outside agency like EEOC or the Office of Human Rights or you can seek the counsel of an attorney.
Sources: http://www.eeoc.gov/policy/docs/caregiving.html#discrwomen and http://www.eeoc.gov/policy/docs/race-color.html#IVC
Thursday, May 20, 2010
"I'm Sorry...And I Love You!"
HOWEVER, I just had a conversation with my mom, who works at a school in Brooklyn, New York. An African-American, female aide has been having problems with some of the Russian aides. Basically, they reported her for "wandering around" after she stopped doing some of their work. So, she stopped speaking to them and stays away from their classroom.
Well, that wasn't good enough. And, the school (like many offices) isn't big enough to avoid people forever. So, they all run into each other and words are exchanged after the Black aide is accused of being "rude."
They go back and forth arguing for a few minutes. When a Russian teacher comes into the room, she listens to what is going on for a couple of minutes. Then...
She pulls the Black aide to the side and tells her that she should feel bad for speaking that way to women who are older than she is. And...
She is told that she needs to immediately apologize to the Russian women and tell them that she loves them.
This is literal.
She is told, "...go tell them you're sorry and that you love them."
The Black aide apologizes to the women, although she doesn't think she did anything wrong and although the arguing was instigated by the Russian women.
They do not apologize to her.
This is crazy, but not unbelievable to me. I've known about Blacks being asked to apologize for all types of things, even things that weren't their fault. And, I've been asked to apologize to Whites coworkers myself.
I HAVE NEVER APOLOGIZED TO ANYONE because someone thought they could intimidate me into doing so or even if they asked nicely.
Being asked to apologize to Whites, even when you haven't done something wrong...
just another issue that many Blacks face in the workplace.
Wednesday, May 19, 2010
For Your Consideration
As a result, many Black workers have to endure the hardship of working with managers and coworkers that never even entertain the idea that we should be considered for certain assignments and projects or be involved in any work planning activities.
For some employees with decision-making authority, Black workers simply do not exist—except to serve as labor. So, if they have a menial/low-level assignment, this sort of decision-maker can call off the name of nearly every Black worker that qualifies to do that level of work. However, if the work is junior to high-level in nature, conveniently the names of White workers may be all that rolls off their tongues.
I remember working with a Black low-level staff person that was going to school for computer technology/programming. He was less than one year away from getting his B.A. A project came up that involved computer technology. In our department, no one had that experience because we specialized in health-related work. Believe it or not, as the team was being built, at no point was this Black person’s education/background brought into the conversation. So, I brought him up and recommended he join the team because he would be able to provide more insight into the specifics of the project. After stating my case for him, I was told, “You know, I didn’t even think about him.”
Well, why not? Everyone was always talking about his schedule because they knew he changed his work hours to accommodate school. So, the issue certainly wasn’t that people forgot that he was studying. And, this worker always talked about computer programming. So, it’s not likely anyone forgot his specialty area. The fact of the matter is this man was just irrelevant to these folks. He was just a low-level Black employee, therefore, it was automatically assumed he couldn’t substantially contribute to the project—even though he knew more on the subject that anyone else involved.
How did the situation get resolved? The Black man was brought in to take notes on our phone calls and do rudimentary work, such as looking up phone numbers for computer technology experts that we wanted to interview. He had great ideas, but only felt comfortable sharing them with me because he said no one else would listen to him or even consider his idea because of the source—him!! As a result, I had to be the carrier pigeon for his ideas, taking his suggestions to the group as he sat across the room pretending it wasn’t his idea.
The ideas were still shot down. But, that didn’t surprise either of us. I was a higher level, but I was just as Black as he was!
Tuesday, May 18, 2010
Racially Abusive Conduct Does NOT have to Cause Economic or Psychological Injury
Harassment must be analyzed on a case-by-case basis, by looking at all the circumstances and the context. Relevant factors in evaluating whether racial harassment creates a sufficiently hostile work environment may include any of the following (no single factor is determinative):
--The frequency of the discriminatory conduct;
--The severity of the conduct;
--Whether the conduct was physically threatening or humiliating;
--Whether it unreasonably interfered with the employee’s work performance; and
--The context in which the harassment occurred, as well as any other relevant factor.
The more severe the harassment, the less pervasive it needs to be, and vice versa. Accordingly, unless the harassment is quite severe, a single incident or isolated incidents of offensive racial conduct or remarks generally do not create an abusive working environment. But a single, extremely serious incident of harassment may be sufficient to constitute a Title VII violation, especially if the harassment is physical.
Examples of the types of single incidents that can create a hostile work environment based on race include: an actual or depicted noose or burning cross (or any other manifestation of an actual or threatened racially motivated physical assault, a favorable reference to the Ku Klux Klan, an unambiguous racial epithet such as the “N-word,” and a racial comparison to an animal.
Racial comments or other acts that are not sufficiently severe standing alone may become actionable when repeated, although there is no threshold magic number of harassing incidents giving rise to liability. 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.
Monday, May 17, 2010
LEGAL BRIEF: Everybody Can Get Some -Three For The Price of One Discrimination!
Pace Services Treated Islamic, Black and Hispanic Employees Unfairly, Federal Agency Charged
HOUSTON – A Houston-area construction company will pay $122,500 and provide additional remedial relief to resolve a discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced on April 22nd. The EEOC had charged that Pace Services, L.P. discriminated against Mohammad Kaleemuddin because he is of the Islamic faith and of East Indian descent, and against 13 other employees because they are black or Hispanic.
The EEOC’s lawsuit (Civil Action No. 4:08cv2886, in U.S. District Court for the Southern District of Texas, Houston Division) asserted that a Pace supervisor referred to Kaleemuddin as “terrorist,” “Taliban,” “Osama” and “Al-Qaeda.” According to the EEOC, despite Kaleemuddin’s complaints, Pace never took action to stop the harassment, which continued up to the day when the supervisor fired him. The EEOC further claimed that the same supervisor, as well as others in Pace management, regularly referred to African Americans as “n----s” and to Hispanics as “f-----g Mexicans.”
Under the terms of the consent decree settling the suit, signed by U.S. Magistrate Judge Stephen William Smith, Pace Services will pay $61,250 in relief to compensate Kaleemuddin. An additional $61,250 will be distributed among the other non-Anglo employees who were also harassed. In addition to the monetary payments, the decree directs that Pace’s owner shall provide a signed letter of apology to Kaleemuddin, that the manager alleged to have made many of the racist remarks be prohibited from ever working again for Pace, and that Pace provide employee training designed to prevent future discrimination and harassment on the job.
EEOC Houston Regional Attorney Jim Sacher said, “Employees have an absolute right to be free from discriminatory harassment in the workplace. The EEOC will vigorously challenge violations of this statutory right.”
Kaleemuddin added, “I would like to thank all the guys I used to work with at Pace for standing up for the truth.”
The EEOC enforces the federal laws prohibiting employment discrimination. Additional information about the EEOC is available on the agency’s website at www.eeoc.gov.
Anyone who believes he or she has been subjected to a discriminatory employment practice is encouraged to contact the EEOC’s Houston District Office located in downtown Houston at 1919 Smith Street, in the Mickey Leland Federal Building.
Wednesday, May 12, 2010
The Low-down on Circumstantial Evidence
1) raising an inference of retaliation - Because you don't have direct evidence you have to show the implications of your evidence by building a thorough case against your employer and its arguments/positions;
2) if your employer fails to produce evidence of a legitimate, non-retaliatory reason for the challenged action (firing, demotions, suspension, transfer to a hard to reach location, being stripped of assignments, harassment, retaliation, etc.) - Are your employer's reasons for its actions against you plausible/believable? You have to focus on exposing their lies and destroying their cover story; or
3) if the reason advanced by the employer is a pretext to hide the retaliatory motive - You can show pretext by demonstrating that your employer treated you differently than similarly situated employees (similar jobs/titles, location/job site, job levels/classification, etc.).
Also consider that an initial inference of retaliation arises where there is proof that the protected activity and the adverse action were related. Typically, the link is demonstrated by evidence that:
-- the adverse action occurred shortly after the protected activity; and
-- the person who undertook the adverse action was aware of the complainant's protected activity (opposing discrimination, participating in an investigation, etc.) before taking the action.
So, if you file a complaint against your employer, internally or externally, alleging discriminatory practices, retaliation, etc. and you suddenly become targeted with adverse actions like increased surveillance and heightened scrutiny, unjustified negative performance evaluations, denial of a promotion, etc., you should link the timing of filing your complaint with the timing of a quick response by your employer that included adverse actions. Point out that those engaged in executing the performance action knew of your complaint/oppostion to discriminatory practices.
Even if your employer waits to execute adverse actions, you can still prove retaliation, etc. through other circumstantial evidence.
Tuesday, May 11, 2010
The Problem May Not Be Your Supervisor!
Although we’d like to think that someone with the audacity to harass or bully a coworker would do so out of sight of other employees, often other staff will witness or overhear the harassment. Let’s not forget, one of the best parts of harassment, from the perpetrator’s point of view, is the public humiliation (among staff) that the victim must suffer through. Embarrassing the victim is a huge payoff for people who engage in this behavior. It’s the humiliation that will help to isolate the target of the harassment and that may help persuade the victim to transfer to another department or resign from their job.
Just because an employee is not being harassed by someone in authority doesn’t mean that employers aren’t liable for any damage caused by the mistreatment. So, if you’re being harassed by someone senior to you (with no authority over you), someone who’s the same level as you or even by someone that is junior to you, your employer may still be liable for damage to your career, etc.
In the decision for Faragher, 118 S. Ct. at 2289 the Supreme Court said, “When harassment is perpetrated by the plaintiff’s coworkers, an employer will be liable if the plaintiff demonstrates that ‘the employer either provided no reasonable avenue for complaint [you didn’t have a way to complain of mistreatment] or knew of the harassment but did nothing about it.’”
On top of that, the EEOC states that an employer is liable for harassment by a co-worker or non-employer if management knew or should have known of the misconduct, unless the employer can show that it took immediate and appropriate corrective action.
So, if your coworker (or any workplace “non-employer”) is harassing you, your employer may be liable for punitive and/or other damages if they knew or should have known about your mistreatment because it was so prevalent and out-in-open in your workplace, but they did nothing about it! If your employer did take the right and immediate corrective actions against the person harassing you (e.g., transferring the perpetrator, firing the perpetrator, etc.), you may not be able to convince the court that your employer is liable for any damages.
Friday, May 07, 2010
You Have to Get All "Law and Order" on Your Harasser!
In order to track what the person has done, you've got to act like you're one of the charcters on a show like Law and Order. You already know the current accusations because you are the one making them against your harasser. Now, you need to figure out if similar workplace "crimes" were committed in the past, what your harasser did, how they got away with it (never reported, employer cover-up, etc.), and how many victims (past and present coworkers) were involved.
It would be great to find out information on your harasser. However, it would also be great to find out that there may be other employees who have gotten away with infringing on the rights of subordinates or coworkers. This would show a pattern of behavior on the part of your employer and that they don't take discriminatory and/or harassing behavior seriously. Meaning, there is an environment and history that shows they condone and/or tolerate abusive behavior.
If a pattern of negative behavior exists, you should use this information to demonstrate that this pattern of prior bad acts have not been adequately addressed by your employer. Your employer is legally responsible to have preventative measures in place that discourage illegal misconduct at work. Similarly, your employer is legally responsible to utilize corrective measures to put a stop to anyone engaging in illegal misconduct at work.
For instance, if a manager has been on the receiving end of several complaints from minority employees, your company should conduct a thorough investigation into this manager. While the investigation is being conducted, the manager should be subjected to heightened scrutiny to make sure he/she doesn’t attempt to retaliate against his/her subordinates. And, the manager could be removed—at least temporarily—from management responsibility/maintaining a position of authority over the complaining subordinates.
If the manager is found guilty of engaging in illegal misconduct, additional corrective actions could include firing or demoting the manager, written warnings and probation, participation in diversity and/or sensitivity training classes, salary cuts, etc.
But, the first step in fighting back is finding out what your “enemy” has been up to. If your employer has received numerous complaints from a variety of minority employees about racially-based harassment by a particular supervisor, you should definitely make note of this pattern in a log or on some other type of tracking sheet.
Have conversations with anyone who has had similar experiences with the individual, even if they never filed a complaint. Find out as much specific information as you can and highlight all of the similarities with your case. Be sure to note what action, if any, was taken by your employer based on a problem pattern of behavior.
This will also have an impact on your employer’s liability in your case--especially if the past bad acts go back for a significant period of time. This would show that your employer knew it had a long-term problem with this employee, but did nothing. The inaction of your employer would demonstrate a tolerance for illegal misconduct and a lack of seriousness regarding maintaining a workplace free of discrimination, harassment, etc.
Thursday, May 06, 2010
The paper, the Smithtown Messenger, was showing the 6 past Presidents and their wives in before and after photos. Before they were in the White House and after the White House. In each photo of White former Presidents and their wives, the photos show them smiling and happy. The before and after photos look the same, except for age and outfit changes.
The Obamas have a smiling before picture, but the after photo is a fight from Sanford and Son. The paper calls it satire and not racism that the Black President and his wife are compared to characters from a show that many considered to exploit Blacks and our culture and it's just a coincidence, apparently, that it features the stereotype that Blacks are violent. I won't even get into comparing Michelle Obama to Lawanda Page, who played Aunt Esther. But, anyone who watched the show knows the running joke that she was ugly and looked like a man.
Anyway, check it out for yourself and post a comment. Satire, racism or just in bad taste? What do you think?
LEGAL BRIEF: Meridian, Mississippi Nursing Home to Pay $40,000 to Settle Discrimination Lawsuit
Poplar Springs Refused to Consider Applicant Because of Age and Race, Federal Agency Charged
GULFPORT, Miss. -- Poplar Springs Nursing Center, LLC, a Meridian, Miss., nursing home, will pay $40,000 and furnish other relief to settle an age and race discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced on May 3rd.
According to the EEOC’s lawsuit, Poplar Springs discriminated against Gloria Carey, a 53-year-old black female, by denying her a social worker position because of her age and her race. The EEOC alleged that despite Carey’s 27-plus years of experience as a social worker, Poplar Springs refused to consider her for the position. Instead, the EEOC said, a less qualified 34-year-old white female was the only candidate interviewed and then hired.
The Age Discrimination in Employment Act (ADEA) protects people aged 40 and older from employment discrimination. Race discrimination violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Southern District of Mississippi, Eastern Division (Civil Action No. 4:08-cv-112-TSL-LCA) after first attempting to reach a pre-litigation settlement.
The settlement, by consent decree, dated April 29, 2010, provides for a payment of $40,000 in compensatory damages to Carey. The decree also requires Poplar Springs to provide specific training to its administrator, managers and supervisors, with particular emphasis on age and race discrimination, and to submit reports to the EEOC detailing its compliance with the decree. The settlement also requires Poplar Springs to provide training to employees on age and race discrimination at its in-service training sessions that occur every other month.
“Racial and age stereotyping has no place in hiring decisions; it is illegal, demoralizing, and deprives the workplace of invaluable knowledge, experience and creativity,” said EEOC District Director Delner Franklin-Thomas. “The EEOC will vigorously prosecute employers who engage in this type of conduct.”
EEOC Birmingham District Office Regional Attorney C. Emanuel Smith said, “We are pleased that Poplar Springs has agreed to resolve this litigation and committed to take positive steps to improve its application process. Assumptions about an applicant’s ability should never be grounded in age or race bias.”
The EEOC’s Birmingham District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Alabama, Mississippi and Northern Florida, with Area Offices in Jackson, Miss., and Mobile, Ala.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.
Tuesday, May 04, 2010
Your Supervisor Should Be Keeping You on Point!
If you have a supervisor or manager that hasn’t explained the goals and objectives that you will be and are being judged against, you should initiate a meeting to discuss performance expectations and how you are meeting those standards. The last thing you should want is to walk into a performance evaluation and be blind-sided by surprise commentary regarding performance-related issues that you did not know existed or to be surprised by criteria/standards that you did not know would be applied to you in your capacity on the job.
While part of the onus for knowing standards and expectations resides with each employee, clearly the bulk of the responsibility is with supervisors/managers. These are the individuals that are monitoring and guiding many of the day-to-day activities of workers. And, these are often the members of management that will conduct or oversee the performance evaluations for their department, unit, etc.
During the course of a performance review period, supervisors/managers should:
-- Keep employees on track with goals and objectives that have been predefined, discussed, and agreed upon by each employee—based on their individual job;
--Provide employees with assignments that help them work towards the defined goals and objectives;
--Provide employees with opportunities to learn new skills and increase their knowledge in their job/field;
--Keep thorough notes on the performance of each person they supervisor or manage;
--Solicit feedback (positive and negative) from those who work closely with each employee and maintain notes on those comments. Supervisors and managers need to ensure they are KNOWLEDGEABLE INFORMANTS about their subordinates. They should not make assumptions or listen to hearsay. It is their job to have an accurate idea of how each employee is performing their duties;
--Discuss performance goals, objectives, and coworker feedback—formally or informally—several times per year with each subordinate;
--Provide negative feedback to employees with enough time for the employee to show improvement during the performance period. If the negative feedback happens near the end of the performance period, it may be too late for the employee to make adjustments. However, if the behavior is atypical, the supervisor or manager should not write about any negative behaviors or incidents as though they were the standard way the employee performed or behaved during the review period;
--Avoid surprising subordinates with negative comments and accusations that were NEVER made during the review period. Something that was an issue during the first 3 months of the review period, but was never raised as an issue, should not be thrown out during a performance review because the employee was not allowed an opportunity to refute any allegations or to know there was some performance or behavioral deficiency that required adjustments in behavior; and
--Avoid making performance judgments based on the employee’s personality, race, education level, etc.
Many supervisors and managers, even those that give employee goals and objectives, do not keep thorough notes on employee performance throughout the year. Instead, they wait until they must draft/write performance evaluations before they get into deep Q&A sessions with those who have managed or worked alongside their subordinates.
Therefore, it’s important to:
--Maintain your own record of your accomplishments and achievements;
--Keep all congratulatory emails and cards from internal and external clients;
--Outline how you have met each goal and objective agreed upon with your supervisor/manager;
--Keep a log of any publications, awards, presentations, etc. that occurred during the performance period;
--Maintain a list of new skills you’ve added to your repertoire at work; and
--Keep a list showing the impact of your contributions at work (e.g., you brought in new clients, saved money by streamlining procedures, etc.)
You can do a lot to make your performance evaluation truly reflect your contributions to the company. Make your supervisor and manager have huge hurdles to jump, should they decide to give into the temptation of discriminating against you by intentionally marginalizing your contributions to the work force or by making false claims about your performance in order to deliberately stifle your career.
Show that you have been keeping track of your performance and can PROVE you have a strong work ethic, produce high quality work, are professional, and that you are and should be valued as an employee.