LEGAL BRIEF: Supreme Court Upholds EEOC’s Retaliation Reach

This legal brief is important because it's a reminder that acts of discrimination and/or retaliation can go beyond the initial target and impact other workers. Many people find romance/love in the workplace. So, it's not uncommon to have people who are married or dating at the same job, even if they don't work in the same department. This legal brief is about the fiancé of woman who ended up terminated about 3 weeks after SHE filed a complaint of discrimination against her employer. That's pretty strong evidence that something strange was up. The time between the act that the woman took in filing the complaint and him being fired is extremely short and suggests that the two events are connected. See below:
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Fiancé of Person Filing a Charge of Discrimination Protected From Employer’s Retaliatory Action, Court Rules

WASHINGTON—The Supreme Court ruled on January 24th that the fiancé of a woman who filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC), was protected from retaliation by their mutual employer and had standing to redress this illegal act. In a unanimous opinion, Thompson v. North American Stainless, LP, No. 09-291, the Supreme Court held that long-standing EEOC interpretations of the scope of the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 (Title VII) applied to an individual harmed by retaliation, even if that person had not himself filed a charge of discrimination.

In Thompson, Miriam Regalado filed a charge of discrimination against her employer, North American Stainless (NAS). Three weeks after receiving notice of the charge from the EEOC, NAS fired Regalado’s fiancé, Eric Thompson, who also worked there. Thompson then filed his own charge, claiming his termination was in retaliation for Regalado’s initial charge. After the district court in Kentucky and the entire Sixth Circuit Court of Appeals ruled that Thompson could not raise a retaliation claim because he himself had not filed a charge of discrimination, the Supreme Court agreed to hear the case and issued its decision reversing the lower courts’ opinions.

“We are very pleased with the Supreme Court opinion issued today,” said EEOC Chair Jacqueline A. Berrien. “The unanimous decision reaffirms the importance of preventing retaliation against those seeking to protect their civil rights.”

This past fiscal year, the EEOC received more charges alleging retaliation than any other basis, supplanting race discrimination charges for the first time in its 45-year history as the most numerous.

The EEOC enforces the federal laws prohibiting employment discrimination. More information about the EEOC can be obtained at www.eeoc.gov.

Source: http://www.eeoc.gov/eeoc/newsroom/release/1-24-11.cfm

Finally getting way more movement in my hand & the pain is gone. I'll have a new post tomorrow.

If you continually dismiss the feedback given to you at work, you have to own the outcome, which may not be in your favor! Be honest with yourself.

If you've been given real advice about your performance at work & how to improve, you have to make a choice about whether or not you really want to succeed.

One thing I'm amazed, at as a retail supervisor, is how many workers give ammunition & a gun to authorities at work. They even line up the sites!

I'm seeing a hand surgeon tomorrow. Will post next week!

I slammed my right finger in my car door--swollen & bruised. Took forever to post left-handed. No new post today. Hurts like heck! Sorry!

Figure Out How to Battle the Lies...Your Reputation May Depend On It!

When you are contemplating filing a race-based complaint, internally or externally, think about how you will overcome the lies that your employer probably has already told about you.

An employer can make up any excuse to justify employment actions against an employee. These excuses don’t have to be proven unless the employee complains about the action. So, the employer can go ahead and accuse you of fabricated performance deficiencies and use those false allegations to deny you a promotion, for example. Unless you say, “I’m being denied advancement for reasons that are without merit…,” no one will ever examine the charges against you. Human Resources is not going to step in and say, “Wait a minute. That’s not the [insert your name] that I know. What’s going on?”

Unless you work for an extremely small company, HR staff may know your name, they probably remember what department you’re assigned to, they may remember your title, but they don’t know your specific contributions to the company—during any given day, month or year. So, don’t think someone in HR will get suspicious, if you are suddenly accused of very negative behavior at work, which is completely out of character for you.

They don’t know you like that and, half the time, HR staff isn’t getting into that level of detail on any employee, unless they are asked to give input on an employment situation—usually at manager’s/supervisor’s, etc. request. When I worked in HR, not one HR staff person read the performance evaluations that were filtered through our office for filing. We simply got a copy, ensured that the employee signed that they read and understood the review, ensured that the supervisor signed the review, and placed the review in the employee’s personnel file. That was it! We never read it to see if anything was fishy or inconsistent or contradictory or just plain unacceptable at face value.

So, it’s up to you to challenge false allegations that a coworker or supervisor, etc. is making about you that are impacting your career or work environment in a negative manner.

If you decide to challenge a false claim, the first thing you need to consider is how you are going to refute the lies. In other words, based on the example, how do you prove that you don’t have performance deficiencies? Well, you could:

--Show copies of previous performance evaluations that contradict what was said;
--Produce copies of emails that contradict new negative allegations against you; and
--Show thank you cards form clients and coworkers; etc.

I know, I’ve gone over some of this before, but we—as a people—really need to get these things drilled into our heads! What else can you do?

Go to the personnel manual. Try to show that your supervisor, employer, etc. violated the company’s own written policies and procedures. That is powerful! Your employer is then forced to justify why they did not follow the pre-existing guidelines they established. This goes a long way in showing an agenda against an employee and shows clear intent, not an accident, in executing an employment action!!

If you are placed on probation, for example, based on false allegations, go to the personnel manual. What does the manual say about handling management issues? If the manual says that an employee should first be given 1) an oral warning; 2) a written warning; 3) be placed on probation, your employer would have to answer why they jumped to step #3 of their own process. They have to justify why what you did was so egregious they violated their own policy, especially if you don’t have a history of having any performance issues.

Other things you could do include:

--Getting witness corroboration to support your version of events. Ask coworkers to write statements for you or to speak to HR reps on your behalf. Getting support in writing is best!

--Tape recording meetings to get verbal threats, racial epithets, etc. on tape.

--Keeping a log of all race-based incidents, incidents of harassment, etc. with specifics details on who did what and when!

--Requesting an internal investigation to place the burden on the company to stop or reverse the fraudulent employment action. Get the HR department on record, should you need to go to a lawyer or outside investigatory agency!

--Keep a log of all the lies your employer tells and write specific quotes (include the date and time of conversations, etc.). Put yourself in a position to have fantastic recall of who said what and when!

Don’t just hand over your career to workplace racists! Fight for what you have earned. It’s a small world. You never know who you will be working with again in the future, especially if you work in a small industry, where everyone knows each other or it's easy to run into former coworkers at meetings, etc. Former coworkers and bosses may even end up representing your clients. Imagine being poisoned on that side of the business.

A bad and falsely earned reputation can haunt you for years!

No Two Snowflakes are Alike...Hostile Work Environments Aren't Either!

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!!

What Would You Do?

I’ve been amazed at how far some Black people are willing to go in order to “fit in” with White coworkers and to try to be “liked” by White coworkers. So, I ask…fitting in…being liked…how far would you go?

Some Black workers will bad mouth other Black coworkers to White staff, will dime out a Black coworker to White staff or will engage in other behavior that is intentionally designed to show loyalty to Whites, while exhibiting disloyalty to Blacks.

I had a group of Black coworkers that made complaints about a White manager to a Black supervisor. When the Black supervisor addressed the issue and found herself the target of many Whites—and the company as a whole—those same Black workers tried to figure out how to turn her misery into their fortune. They signed false statements against the Black supervisor, pretended not to know anything that was going on in the department regarding the supervisor’s mistreatment, and accepted unprecedented raises, market increases, and other financial rewards that they knew were nothing more than bribes.

Their behavior disgusted me then and it disgusts me now. Not only were they cowards, but they were calculating. And, they had absolutely no character. They enjoyed their reward and went out of their way to side with White workers and members of management that were engaging in illegal misconduct. How does this tie in with fitting in and being liked?

The Blacks that engaged in this behavior were the same Blacks that were always trying to win over White staff and who talked openly about the things they did to get White coworkers to "like" them. For instance, one Black coworker would tell Black coworkers that he always shared with White coworkers that he didn’t like basketball. He said that he would only talk about sports that Whites liked, such as golf. A Black woman would buy and make lunch for all the staff in the department—at least once a month. She served everyone in the department lunch, including a few Black staff, but it was clear she was doing this for the benefit of the Whites in the department. She would say, “I’m liked,” when referring to the Whites in her department. She felt that her lunches were getting her over and making her popular with Whites.

So, it’s no accident that these are the very same Blacks that could assist White supervisors and other members of management in destroying the career of a Black woman that was championing their causes at work, fighting for better treatment for them, and had gotten some of them significant pay raises on their yearly reviews. The fact that she did a good job for them as a manager couldn’t fight the desire of these Blacks to get in good with Whites. These Black needed the acceptance of Whites. It was a regular part of their conversations.

So I ask again…fitting in…being liked…how far would you go?

Part of a being an active member of any society means finding common interests with other people/races, compromising, and stepping out of your comfort zone. However, interacting with people in a positive way and a** kissing based on playing into stereotypes and being cut throat—only with other Blacks—goes far beyond the call of fostering camaraderie at work and it goes far beyond simply trying to “fit in” or be “liked.”

In the workplace, the interpretation of blackness and acceptability is not up to us. Executives, directors, supervisors/managers, and coworkers have enormous input into the perceptions that exist about Black people in the workplace. Some of the people shaping these perceptions are going to be racists. Playing into stereotypes and trying to destroy others to gain favor at work only serves to tear down all minorities at the company because it validates the perceptions that we’re fighting everyday.

We always hear about Blacks being like crabs in a barrel, always snapping at each other. Why engage in that behavior at work? We always hear that about Blacks being envious of each and trying to tear each other down because of petty jealousy. Why engage in that behavior at work?

As Blacks, we need to take responsibility for some of the stupid drama going on in the workplace. And, we need to take responsibility for the fact that some of us actively assist White racists in the workplace and we do this knowingly. All the drama we create amongst ourselves serves as entertainment for the Whites we work with and it often facilitates Whites, who are biased against Blacks.

We should never want to fit in or be liked so badly that we are willing to sell out ourselves or other Blacks for the benefit of racists that would target all of us, including those yet to come! Remember that, the next time you think of running behind someone that you know means you or your people no good! You can’t fit in with or be liked by someone who has no intention of ever accepting you and who has no respect for you or your race

LEGAL BRIEF: EEOC Files Nationwide Hiring Discrimination Lawsuit Against Kaplan Higher Education Corp.

Company’s Use of Job Applicants’ Credit History Discriminates Because of Race, Federal Agency Charges

CLEVELAND – Kaplan Higher Education Corporation, a nationwide provider of postsecondary education, engaged in a pattern or practice of unlawful discrimination by refusing to hire a class of black job applicants nationwide, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.

Since at least 2008, Kaplan Higher Education has rejected job applicants based on their credit history. This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity, the EEOC charged in its lawsuit.

As a result of these practices, the company has violated Title VII of the Civil Rights Act of 1964, according to the lawsuit (Civil Action No. 1:10-cv-02882) filed by the EEOC’s Cleveland Field Office in U.S. District Court for the Northern District of Ohio. It is a violation of Title VII to use hiring practices that have a discriminatory impact because of race and that are not job-related and justified by business necessity.

The EEOC attempted to reach a voluntary settlement before filing suit. The EEOC seeks injunctive relief in its lawsuit, as well as lost wages and benefits and offers of employment for people who were not hired because of Kaplan Higher Education’s use of job applicants’ credit history.

“Title VII of the Civil Rights Act of 1964 was intended to eliminate practices that serve as arbitrary barriers to employment because of a job applicant’s race,” said Regional Attorney Debra Lawrence of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Delaware, West Virginia, Maryland, and portions of New Jersey and Ohio. “Employers need to be mindful that any hiring practice be job-related and not screen out groups of people, even if it does so unintentionally.”

Workplace discrimination charge filings with the federal agency nationwide rose to an unprecedented level of 99,922 during fiscal year 2010.

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/eeoc/newsroom/release/12-21-10a.cfm