Who Has The Right?

I was speaking to a friend recently and the topic turned to racism in the workplace. My friend asked, “What in God’s name makes someone think they have the right to stop someone from getting a promotion because they’re Black?”

That question could be morphed so many times over:

-- What makes a person stop someone from getting training opportunities simply because of race?
-- What makes a person stop someone from getting a fair salary increase simply because of race?
-- What makes a person execute a tangible employment action (demotion, suspension, termination, etc.) simply because of race?
-- What makes a person write a fraudulent performance evaluation simply because of race?

For “race” you could substitute gender, age, sexual orientation, disability, etc. But, the question is still the same. What makes a person actually act upon their personal biases in the workplace?

Think about it...most people have some other group of people that they do not care for (Whites, Blacks, Jews, Homosexuals, Women, Small People, etc.). Now, most people won’t admit that, but it’s just human nature. The problem isn’t as much in having those biases as it is in acting upon them. Even if race discrimination didn’t violate Federal statutes, why would anyone think they have the right to engage in that activity—particularly in the workplace?

The concept that someone can be so full of hatred, disgust, contempt, etc. for another group of people, to the point where they have absolutely no impulse control, is very frightening. To go to work and decide that you will potentially jeopardize your own career and reputation, just to unjustifiably attack Black workers is an astonishingly arrogant action. To knowingly place your employer in legal jeopardy is reckless and arrogant, as well.

But, what’s crazy about the whole thing is how many employers are willing to engage in activities that serve to protect the very people who are endangering their business. With all the talk about branding and company reputation, you would think that companies would annihilate any employee—regardless of level/title—that is engaging in activities that endanger the well-being of the company.

Unfortunately, when allegations of race-based discrimination, harassment and/or retaliation surface, many employers embrace and protect the alleged perpetrator, while ignoring the plight of the victim. Some employers go as far as to engage in the same illegal behavior, which has been brought to their attention by the victim. The thought process seems to be that the company should deny all wrongdoing—no matter how obvious—in order to make the employee shut up, resign or to set the employee up for termination. Apparently, once the complaining employee is silenced, all will be right in the world again. All of the talk about the company’s “brand” just goes out the window and wagons are often circled around the victims of illegal behavior.

The whole workplace racism dynamic is utterly psychotic on many levels. The actions of the racist—one of the dumbest creatures on the planet—and the actions of far too many employers go against what we declare are desired social norms. We say we want to live in a fair and equal society and we pledge that we want “liberty and justice for all,” but we—as Americans—intentionally fall short on living up to our declared standards of conduct or our declared ideals.

Until people realize they have absolutely no right to engage in racist behavior and that they have absolutely no right to destroy someone’s livelihood/career, we will continue to battle race-based problems in our society.

When employer’s stop sheltering racist workers, supervisors, managers, executives, etc., more people will finally realize that they ARE able to control their impulses. Employers who tolerate known racists and racist behavior just add fuel to the fires of racism in the workplace. Racists need to be shut down! No one is irreplaceable. Especially, not many of the characters who are responsible for the race-based lawsuits against their employers.

To each racist I say: "If you want to be racist, keep that sentiment at home because it’s the only place you should feel comfortable spouting your ignorance with such certainty. But, the minute you leave your home and step out into a diverse society and workplace, you should willingly forfeit any racist views, while you are working on your employer’s dime."

If a person is unable to control their racist impulses for a mere 8 hours a day, that person should seek the attention of a mental health professional. The inability to control one’s impulse to engage in racist behavior is a sure sign that something is terribly wrong with a person’s ability to reason, ability to control their behavior, and ability to show sound judgment.

The reality is…

NO ONE HAS THE RIGHT TO ENGAGE IN RACISM, TO DESTROY OR STIFLE SOMEONE’S CAREER OR TO ENGAGE IN OTHER RACE-RELATED SHENANIGANS AT WORK!

This concept seems obvious. But, reality shows that many people are still trying to work it out!

Providing Evidence of Retaliation

If you are under attack at work, it’s critical that you have a complete and thorough record of every action taken against you by a supervisor, manager, coworkers or your employers--as a whole. You should also have a record of performance evaluations and other performance-related feedback, policies contained in the personnel manual, and other information.

When it comes to compiling evidence that supports your claims of workplace mistreatment and abuse, you should think in terms of direct vs. circumstantial evidence. Direct evidence is the best evidence to have because it is the most blatant and undeniable form of proof. An example of direct evidence is being told that you are not being promoted because you are Black or having your boss give you a memo stating that you won’t be given an opportunity to manage other staff because of your race. Direct evidence involves someone making it blatantly clear that your race is one of the factors or the sole factor in how they are treating you in the workplace.

Most people are too savvy to provide a target with direct evidence of discrimination, harassment or retaliation. But, it does happen. More often than not, a racist will simply find other ways to hide the racially motivated reasons for their actions. For that reason, it’s more likely that you will have circumstantial evidence of race-related discrimination, harassment, retaliation, etc.

Let’s look at how you might prove a circumstantial case of retaliation (retaliation for complaining about race-based abuses at work). According to the EEOC, a violation is established if there is circumstantial evidence raising an inference of retaliation, 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.) or if the reason provided by your employer is simply a pretext to hide the retaliatory motive.

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, suspension or other negative actions, you can link the timing of when you filed your complaint with the onslaught of abuse by your supervisor, coworker or employer.

Circumstantial evidence can come in many forms, but as you gather information that proves your point/position, you also want to collect evidence that disproves/refutes the case being made by your employer. Your employer has likely given you reasons for taking certain actions with regard to your employment. For instance, unjustly demoting you, denying you a promotion or firing you. You need to show that the reasons given by your employer are nothing but a pretext/excuse to hide their true motives, which you believe are racially-based.

You need to do two things: (1) Prove your case with an avalanche of circumstantial evidence or direct evidence; and (2) Prove that the justification provided by your employer is nothing more than a misrepresentation of facts and/or outright lies to hide their race-related motivations!

You have to be strategic. You have to think about all of the evidence that would prove, to a complete stranger, that your position is valid. Pretend that you will have to speak to a two-year old. Don’t assume someone is going to have an instant understanding of your position. Keep your arguments simple and break down all of the relevant points.

Remember, you are looking to highlight actions that directly or indirectly show potentially illegal mistreatment. Keep the word "inference" in mind because circumstantial evidence provides an inference of illegal behavior.

Adverse Actions: Heightened Scrutiny by Coworkers at an Employer's Request

According to the EEOC, an adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include:

-- Employment actions such as termination, refusal to hire, and denial of promotion;

-- Other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance; and

-- Any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.

Once again, the EEOC web site contains an example of an adverse action that reminds me of illegal corporate behavior that is very familiar to me. The example is this:

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

Some of you may have experience with complaining about racially-based mistreatment and then suddenly having coworkers subjecting you to heightened scrutiny at the employer’s request. Some companies will go all out in their recruitment efforts to get corporate spies, particularly in race-related incidences. If the employer is convinced that someone in their employment did violate anti-discrimination, anti-harassment and/or anti-retaliation statutes, the employer may feel compelled to do a James Bond in order to find anything that can provide the company with cover.

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

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

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

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

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

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

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

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

Tangible Employment Actions Aren't Connected to Maintaining Salary or Benefits!

Workplace harassment is defined by law as behavior that, while offensive, is extremely serious because it changes the conditions of your employment or creates a hostile work environment. In regard to the law, for something to change the conditions of your employment, the “something” must be a tangible employment action. A tangible employment action is any significant change in your employment status. It’s an action that has a negative impact on your work environment, job function or career.

A tangible employment action is not simply someone making a threat or giving you lip service. So, if someone’s telling you they’re going to meet you in the parking lot, next to your car, at 3 o’clock—that’s just not going to cut it. Now, if they show up and attack you, then that would be assault. A tangible employment would be:

--a demotion;
--a suspension;
--being stripped of your staff;
--being denied a promotion with no basis;
--receiving a pay cut under false pretenses;
--being transferred to a menial job;
--being transferred to a remote location or being transferred to a hard to reach location (making it difficult to get to and from work) or being isolated from other staff; or
--being subjected to a hostile work environment that is so offensive and persistent that you can’t perform your job.

Some employers try to get all Slick Willie with these actions. So, sometimes they won’t take away an employee’s salary or benefits. Then, they’ll argue that there isn’t a really significant change in job status/no significant penalty. But, that argument doesn’t fly because tangible employment actions aren’t considered based on whether or not an employee retains the same salary or benefits. So, if there is a significant and negative change to your job—even with the retention of pay and benefits—you can argue that you were hit with a tangible employment action.

In my case, I was denied a promotion without basis—except racism and retaliation. I kept my salary and benefits. I filed a complaint with the Office of Human Rights (OHR). My employer responded to OHR that they didn’t change my salary, title, etc. and used that to try to prove that everything was legitimate that happened to me. They didn’t know that I knew they were full of sh*t and that I could argue such based on the fact that I knew that tangible employment actions are not linked to retaining salary, benefits, etc.!

Anyway, according to the Equal Employment Opportunity Commission, tangible employment actions:

--occur when a supervisor uses the official powers of the company to take action(s) against an employee;
--are official acts of the company;
--are often documented in company records;
--often have the official approval of the company and its internal processes;
--often cause financial harm; and
--generally, can only be caused by a supervisor or other agent of your company, since a coworker just doesn’t have the power to bring about a significant, negative change in another employee’s employment status or job responsibilities.

So, if you feel you are the wrongful victim of a tangible employment action, PREPARE TO FIGHT BACK!

Tip #1: Maintain a record of any memos or emails you receive that are meant to justify the tangible employment action (e.g., corrective action notice, written warnings, etc.);

Tip #2: Be able to produce your salary history, by maintaining a record of your income with your employer. Show any decrease in pay. Maintain a record of any memos or emails that are meant to justify a salary decrease.

Tip #3: Check the personnel manual! Before such extremes actions were taken against you, check to see if your employer is following its own policies and procedures. If not, point out any violations that may exist.

Tip #4: Find out about past history! Have other employees engaged in the same behavior that you were accused of engaging in or of having the same performance deficiencies that you were accused of having? If so, what happened to those people? Does it differ from actions taken against you? If so, and the consequences for other employees was nonexistent or very minor, you may be able to claim disparate and unequal treatment by your employer.

Tip #5: Keep pushing your side of the story! Don’t let HR or your employer ignore your version of the facts. Document everything, including every relevant conversation you’ve had with HR staff and authorities at your job. List any contradictions in what they say about policies and justifications for the actions. Provide witness statements to support you (e.g., character references or eye witness accounts of events, etc.) and request that HR check with these individuals to confirm your story.

Tip #6: File a grievance or request an internal investigation! Don’t let tangible employment actions slide. If you believe a manager is acting on racist whims by stripping you of your staff or cutting your pay, ask for HR to investigate the matter! It’s your career, fight for it! If the company doesn’t find in your favor, appeal the decision!

Tip #7: Seek legal counsel! Don’t be afraid to consult an attorney in response to a fraudulent tangible employment action.

Tip #8: Remember that your company will usually do everything in its powers to make it appear that the tangible employment action was warranted. This will be their justification for why no violations of Federal law occurred. It is your job to show that the arguments presented by your employer are nothing but pretexts used to hide their true motivations, which might be harassment, discrimination or retaliation. By keeping a log of events that transpired, keeping hard copies of memos, emails, and other documentation that supports your case, and by tracking comments made and actions taken by your supervisor, Human Resources, and corporate management, you can begin to demonstrate that their defense is dishonest and solely meant to cover up the violation of your employee rights. Focus on why their defense is untruthful! That is the burden placed on complainants!

LEGAL BRIEFS: Adverse Actions May Occur After the Employment Relationship Ends

In case you were wondering, it’s possible for an employer to retaliate against or to continue to retaliate against an employee after that employee has left employment with the company. It doesn’t matter if the separation of employment was voluntary or involuntary, the employee resigned vs. termination, employers can still commit post-employment retaliation.

When police officers are investigating a crime, they look to determine motive and opporutnity. Well, with post-employment retaliation the motive is clear—retaliation—it’s just the opportunity part that may take some working out or that may simply require some patience.

One common means of engaging in post-employment retaliation is for an employer to use the power of employment verification against a former employee. When a person is seeking new employment, they have to list their most recent employers on an application and on their resume. Once a potential employer calls a previous employer to verify the applicant’s information, some employers will use this opportunity to convey intentionally negative and malicious information in order to prevent an employee from getting another job. This is especially true in cases where employees may have complained of potentially illegal misconduct in the workplace.

In the decision for Robinson v. Shell Oil Company, the Supreme Court unanimously held that Title VII of the Civil Rights Act of 1964 prohibits respondents from retaliating against former employees as well as current employees for participating in any proceeding under Title VII or opposing any practice made unlawful by that Act, such as discrimination, retaliation, harassment, etc.

The plaintiff in Robinson alleged that his former employer gave him a negative job reference in retaliation for his having filed an EEOC charge against the company. Some courts previously had held that former employees could not challenge retaliation that occurred after their employment had ended because Title VII prohibits retaliation against "any employee." Therefore, if you’ve left employment, you are no longer considered under the definition of an employee.

However, the Supreme Court stated that coverage of post-employment retaliation is more consistent with the broader context of the statute and with the statutory purpose of maintaining unfettered access to the statute's remedial mechanisms. The Court's holding applies to each of the statutes enforced by the EEOC because of the similar language and common purpose of the anti-retaliation provisions.

Therefore, post-employment retaliation (adverse actions, etc.) can still be argued against a former employer that is reaching out to continue to harass and retaliate against a former employee. If your employer has continued to make trouble for you, after you’ve left the company, you may have additional legal arguments to make and there may be additional liability issues for your former employer.

Reporting Harassment

According to the EEOC, an employer should make clear that it will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. An anti- harassment policy and complaint procedure will not be effective without such an assurance.

Management should undertake whatever measures are necessary to ensure that retaliation does not occur. For example, when management investigates a complaint of harassment, the official who interviews the parties and witnesses should remind these individuals about the prohibition against retaliation.

Management also should scrutinize employment decisions affecting the complainant and witnesses during and after the investigation to ensure that such decisions are not based on retaliatory motives.

So, if you have reported harassment or some other form of illegal misconduct, the onus is on your employer to ensure that you are not subjected to retaliation because you’ve spoken up about mistreatment. This means that management should warn those you are making complaints about, as well as other staff being interviewed as material witnesses, that you are not to be targeted in any way shape or form for making a complaint. Your employer’s anti-harassment and anti-retaliation policies should be sent in reminder emails to ALL STAFF—periodically—but, particularly after an incident of potential harassment has been reported.

Your employer should not name you or call you out in any communication being sent to all staff. Employees that are serving as witnesses should be warned not to repeat anything that is discussed during an investigation of harassment. Steps should be taken to shut down the rumor mill—before it gets started!

If an employee has made a complaint of harassment and someone with authority to recommend employment actions makes a sudden recommendation to suspend or to demote or to fire, etc. that employee, the employer should automatically question the employment recommendation to determine if the motivation is legitimate or simply a pretext to fire the employee for making a complaint. Employers should not simply take the word of a supervisor, etc., when they are aware that the supervisor is recommending action that could be intentionally retaliatory, may be meant to scare the employee out of opposing illegal mistreatment, and may be meant to intimidate other employees in order to prevent them from opposing illegal mistreatment or from participating in an investigation against the company.

Employers can’t claim deniability by blaming a supervisor for taking action against an employee as though the supervisor were a rogue employee of the company. Supervisors rely on the authority given to them by management and can’t execute a vendetta or any adverse actions without cooperation or intentional ignorance from higher up within the company. The law will not diminish the responsibility of employers to examine all employment actions, particularly against employees that have opposed mistreatment.

Three Components of Circumstantial Evidence

According to the EEOC, the most common method of proving that retaliation was the reason for an adverse action is through circumstantial evidence. A violation is established if there is 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.

Heightened Scrutiny and Increased Surveillance

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

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

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

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

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

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

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

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

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

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

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

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

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

Think about the levels of heightened scrutiny and increased surveillance that you are being subjected to compared to other similarly situated employees.

You Didn't Leave the Cap Off the Toothpaste!

Racism can be overt in some places, but it’s normally covert at most companies in the nation. So, here’s something to think about, when it comes to a coworker or manager making accusations that you are guilty of some performance deficiency. When you are dealing with racists, in today’s society, very rarely will a coworker be dumb enough to come out and call you a nigger and very rarely will a manager be dumb enough to tell you that you aren’t being promoted because he/she refuses to put a Black person into a certain level job.

As a result, a racist manager like this will come up with other ways to justify denying a promotion to a Black worker. So, the manager will make up a laundry list of false and disingenuous reasons for the denial. The tactics to achieve this/the cap off the toothpaste might include:

--Blaming the Black worker for problems caused by other staff in the department;
--Accusing the Black worker of having a bad attitude or of being insubordinate;
--Stating the Black worker is not a team player; or
--Belittling the accomplishments of the Black worker.

The point is, they will make up some other complaint that hides what their real motivation is—racism! I like to compare this behavior to a couple that has moved in together only to find themselves at each other’s throats. He says the problem is that she leaves the cap of the toothpaste. She says the problem is that he leaves the toilet seat up. Neither of those is the real reason why the couple is at odds. Both of those reasons are simply excuses and cover stories to conceal an underlying problem.

Well, that’s how it is at work. Although you should always do everything in your power to avoid giving White workers and managers ammunition to use against you, remember that any incident or discussion can be twisted and manipulated to fulfill someone’s agenda. Something as simple as the proverbial cap being left off the toothpaste can be sold as if you damn near thrust your middle finger into the client’s face and knocked the person out of a chair!

In my case, I received a report from another office of our company. This report was time sensitive and required feedback from a couple of staff before it could go to our editors for copyediting. So, when I got the report, I emailed it to the other staff that needed to provide input. I included that I’d just received the report—hadn’t reviewed it yet—and asked if everyone could review it—quickly—and mark up a copy with any ADDITIONAL CONTENT that should be included. At that time, I would make a master document with ALL additions and any other changes (read: edits) for our editing team.

I was called into a meeting and criticized because the report, written by staff all senior to me, had a couple of typos in it (exactly 2 typos). I was told that I should have read the report and caught the typos before sending it to other staff for review. The Vice President of our office and her highly senior staff wrote the document and supposedly reviewed it. They were senior to those in my office and just wanted us to add any other thoughts or nuggets that could improve the whole report. Yet, the senior staff were not criticized for sending a report for review that was proofed, but still contained a couple of typos. I was told it was MY FAULT and that I wouldn’t be promoted because those are the sorts of things I should do, in order to work at the next level.

ONE WHITE WOMAN made the complaint about the two typos to my supervisor. She was a known racist in my department. She had a problem with at least 3 other Black women with brown or dark complexions. There were only about 6 Black women at the site out of about 150 employees.

So, my supervisor relays the complaint to me, telling me that I wasn’t going to be promoted, didn’t know how to multi-task, didn’t know how to prioritize my work, and that I didn’t set aside enough time to support this racist’s project.

Yes, ALL THAT from 2 friggin’ typos that came directly from a WHITE VP and her WHITE staff!! The power of White people making complaints against someone Black can have that much weight in some offices and at some companies. How do you extrapolate that many negative connotations from one stupid and petty complaint? All of that extra crap came from left field and has my former employers currently involved in an investigation--right now!

On top of all this, White logic at my company indicated that editors don’t catch typos. Yes, that’s what I was told. Editors are paid to catch typos and other errors, but they don’t. Now, if that logic is true and editors can’t or don’t catch typos, how much success will regular employees have in proofing documents? It’s just a dumb argument to try to use against someone. Professional editors can’t catch these things, but you’re being punished because you didn’t! On top of that, I never claimed to have read or edited the document. It was like, “Anything you want to add to this before it gets proofed?” How hard is that to understand?

Yet, I was told I wouldn’t get a promotion because the assumption was made that I was not going to review the document. And, that even if I did, and didn’t catch the typos—the editors also wouldn’t have caught the typos! I was told the clients would have received a report with typos in it and that it would have been my fault.

HOW MUCH SENSE DOES THAT MAKE?

If you want to argue that all errors should be removed from a first draft before it can be reviewed by anyone else on a team, than you should send that report to your editors in order to catch EVERYTHING! Or, is the argument to quickly fix typos, but leave all grammatical errors and any other problems in place prior to review? That doesn’t make sense to me, but that’s clearly the expectation. I was told that I should have fixed the typos and not worried about any other problems with the report. Again, HOW MUCH SENSE DOES THAT MAKE? Fix the typos, but leave any inconsistencies and logic errors alone? If it’s okay for review with errors, it’s okay for review with errors. I didn’t do anything that hadn’t been done many times before, when it comes to quick team reviews.

But, it’s the cap was left off the toothpaste argument! It’s the excuse to justify discrimination. After telling me I wouldn’t be promoted, the White coworker (who made the complaint about the typos) and who had outstanding complaints against her regarding her project management abilities (or lack thereof) and her poor communication style (causing problems in other departments) was promoted. There were no complaints like that against me, but I was told I couldn’t be promoted because of a couple of typos made by a Vice President and her senior staff in a NON-FINAL/NON-EDITED VERION OF A DOCUMENT. This is one of the issues I raised in my external complaint against and investigation of this employer.

So, regardless of an issue that is being presented as legitimate, it’s up to you to show that the arguments being used by your employer or manager are nothing more than a pretext to hide their true motives, which are racist, discriminatory and/or retaliatory in nature. You have to build a clichéd house of cards comprised of verifiable testimony (from coworkers or others that have witnessed your mistreatment) and physical evidence (email or other documentation) that can’t be refuted by your employer. Don't let someone use a petty argument to derail your career or to discriminate against you.

Tips for Fighting False Allegations About Your Job Performance

When companies, managers, etc. decide to target an employee, particularly one with a positive reputation and strong work ethic, one of the first things they often do is to begin making sudden and extremely strong criticisms of that person’s job performance. So, a person that is respected and valued by their colleagues, may suddenly find their supervisor claiming they have a bad reputation around the company, that no one wants to work with them, and that their job performance has become a significant issue and liability for the company.

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.

Immediate Response Doesn't Always Negate Liability!

Scenario: An employee is being harassed and subjected to a very hostile work environment due to the behavior of the employee’s supervisor. The behavior of the supervisor is so egregious that everyone knows what’s going on. The supervisor openly humiliates the employee in front of other staff, has been seen shoving and encroaching on the personal space of the employee, has falsely and intentionally accused the employee of mistakes made by other staff, has stripped the employee of many assignments, has asked the employee to perform menial and non-work related tasks, like cleaning, etc. Members of management have seen or heard about the mistreatment because the misconduct is happening out in the open. But, no one does anything!

Finally, the employee can’t take the abuse anymore and goes to HR to complain about the supervisor’s behavior. HR takes quick action against the supervisor. For instance, they demote him and require him to go to sensitivity training.

Question: Is that response good enough to resolve the situation?

Answer: Maybe not!

Even though the company quickly responded to the complaint and took action against the supervisor, the problem is that they waited for the employee to complain about mistreatment before they did anything about it.

According to a decision in Dees v. Johnson Controls World Services, Inc., 168 F. 3d 417, 422 (11th Cir. 1999):

“… [an] employer can be held liable despite its immediate and appropriate corrective action in response to a harassment complaint if it had knowledge of the harassment prior to the complaint and took no corrective action.”

The bottom line is that Federal law does not require that an employee complain about mistreatment because some employees may have a reasonable fear of complaining out of fear of retaliation, etc. For instance if they saw another employee mistreated after complaining of workplace abuse, it would be reasonable to remain quiet, while experiencing mistreatment. So, legally, there is a hope that employees complain about illegal mistreatment, but there is some flexibility on this.

Also, all members of management and authority in a company have an unwritten requirement to report workplace abuse of employees, if they have knowledge of potential misconduct (e.g., witnessing it or overhearing conversations about it, etc.).

So, an employer can’t just sit on its hands and wait for employees to complain about a problem coworker or manager before taking action against the offending person. They can fire an offending employee, but if they knew what was happening and allowed misconduct to continue, they may be legally liable for damages, etc. that occurred, while they did nothing to correct the abuse.