The "Jena 6" - How Race-Related Harassment Sprials Out of Control with an Inadequate Response

The “Jena 6” of Jena, Louisiana. You’ve probably heard of them by now. The “Jena 6” are six Black, male teens (all football players) who were arrested for beating up one of their fellow high school students—White. The catalyst to all of the racial tension at Jena High School developed, when Black students asked to sit under a tree that apparently was reserved for their White counterparts. The next day, when Blacks sat under the tree, they found nooses hanging from the branches.

Three White students were accused of hanging the nooses and were suspended. However, the attitude of the top school officials was that the actions of the White students amounted to nothing more than a prank. They also implied that the noose might not have had anything to do with race, but might have been a way to tease the school’s opponents at a football game. After the nooses were hung, there were continued racial skirmishes between Black and White students. When Whites instigated the fights…nothing was done to them. But, then Black students beat up a White student…and the next thing you know…six Black students are arrested. The alleged Black “ringleader,” Mychal Bell, was charged as an adult and was charged with attempted murder. All of the students face serious charges.

In the past week, Mychal Bell’s conviction was thrown out by an appeals court, which said that Mychal Bell should have been dealt with in juvenile court. However, Mychal Bell is still rotting in jail right now. There’s been no rationale provided for keeping him incarcerated. The treatment of the six Black teens has reminded many Blacks of old-school southern justice—one sets of laws and rules for Blacks and one set of laws and rules for Whites. Regardless of which rule applies, southern justice assured that Blacks would come out on the losing end of any issues with Whites. In fact, comments by Jena’s District Attorney have fed fuel to the fire. He’s made remarks saying he could destroy the lives of the Black students with the stroke of his pen. And, then we got the heavy-handed criminal charges.

Today, thousands of Blacks flooded Jena, Louisiana to protest the arrest of the six students and to demand the release of Mychal Bell. Now, here’s what I want to address in this blog…

The way the school administration handled the noose issue is an example of how an insufficient response to a very serious issue can allow racial tensions and problems to spiral out of control. I have had posts on this site about Black workers finding nooses hanging in their lockers, etc. I even had one post that described how a Black male worker (at a warehouse) had a White coworker attempt to lasso him with a noose. This White coworker was so intent on putting this Black man in a noose that he perched himself high up on some boxes to give himself a good trajectory form which to hang this Black man.

In Jena, by saying that the Whites were engaged in a “prank” the school administrators were silently issuing a statement—to Whites and Blacks—that they didn’t consider the noose issue to be of any real significance. It was just kids being kids. They didn’t get the significance of what they’d done. But, to believe that…you’d have to believe the three White students to be stupid—which is a possibility. However, even the stupid in this country know full well what a noose symbolizes to Blacks and they know the threat and intimidation that is conveyed. Of all the things they could have hung in that tree, it is no accident that they choose nooses.

Just as it wasn’t an accident in Jena, it’s not an accident when nooses are hung in the workplace.

Federal courts have already rendered decisions, which state that images of or actual nooses and burning crosses are two examples of ISOLATED INCIDENTS that are so egregious that they rise to the level of Civil Rights violations. Historically, the noose and burning cross have been used as part of domestic terrorism against Blacks. That is why one instance of using these visual symbols of racism, terrorism, harassment/hostility, intimidation, and physical threats can bring huge liability issues against an employer.

The visual power of a noose and its impact on Blacks of any age is a fact that isn’t lost on anyone, including the White students of Jena. The response to the hanging nooses should have been as extreme as the act of intentionally harassing and terrorizing fellow students in a race and hate-filled manner.

The question in all of this is…why weren’t any charges brought up against the White students? Why didnt the White D.A. use his pen against "his own"?

I will be writing more about this issue in future posts.

WHAT DO YOU THINK ABOUT THE “JENA 6”? Do you think protesters should have descended on the town of Jena, Louisiana?

Single Incidences that Create a Hostile and Offensive Work Environment

Normally for an employee to claim they were the victim of a hostile and offensive work environment, the employee must prove that they have been the victim of repeated incidences of mistreatment and abuse in the workplace. The incidences must be severe enough to change the conditions of the employee’s status and must be pervasive and disruptive enough that it is hard or impossible for the employee to do their job.

But, there are single incidences that are legally recognized as immediately being vile enough to rise to the level of creating a hostile and offensive work environment for an African American employee. Therefore, it would only take one occurrence to create a workplace situation that would require immediate action from a supervisor or other member of authority within a company. Two examples of single incidences that can immediately create a hostile and offensive work environment are:

1. The use of a noose or burning cross in the workplace, which is used to intimidate and to create a hostile environment. (It can be an actual or depicted noose or burning cross (or any other manifestation of an actual or threatened racially motivated physical assault); or

2. The use of the n-word in the workplace, which is used to demean, degrade, intimidate, and to create a hostile work environment.

Here’s what was included in several legal decisions:

Nooses and burning crosses:

Williams v. New York City Housing Auth., 154 F. Supp. 2d 820, 824-25 (S.D.N.Y. 2001) (“Indeed, the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence. It is impossible to appreciate the impact of the display of a noose without understanding this nation’s opprobrious legacy of violence against African-Americans.”); cf. Jackson v. Flint Ink North Am. Corp., 379 F.3d 791, 795 (8th Cir. 2004) (in racial discrimination case involving graffiti depicting a burning cross, court noted that because “its symbolism is potentially more hostile and intimidating than the racial slurs[,]…)

The N-word:

Cf. Spriggs, 242 F.3d at 185 (“Far more than a mere offensive utterance,” the N-word is “pure anathema to African Americans. Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘n-----’ by a supervisor in the presence of his subordinates.”) (citation and quotation marks omitted).

If there is one incident of racist behavior that has a clear historical context of violence and intimidation, a Black employee can rightly complain about race-based abuse and can contact their supervisor, manager or their HR department to seek a remedy for the mistreatment.

Remember, once is enough, when it comes to symbols and language that are widely known to be racist, intimidating, and demeaning.

Source: http://www.eeoc.gov/policy/docs/race-color.html#N_129_

Don't Use "Bullying" as a Catch-all Term

When people are under attack at work it’s common to find that they refer to their mistreatment as “bullying.” There’s only one problem with that… only about 13 states have anti-bullying legislation pending. However, not a single bill has been signed into law. Bullying isn’t officially legislated, which makes it harder to seek legal remedy.

African Americans, like women and other groups, are considered a protected class. There are laws we can look to, when we encounter racists at work, who may use bullying as a tactic to cause harm to a coworker or subordinate.

Much of the typical behavior of bullies would fall under the Civil Rights Act of 1964, which prohibits discrimination against protected groups of people. Part of the anti-discrimination codes for the workplace is a prohibition against harassment and retaliation. Connected to harassment is language that states that it is illegal to subject an employee to a hostile and offensive work environment, which is the goal of a bully. A bully wants to make to make their victim feel miserable, isolated, and threatened or intimidated. A bully also wants to make it difficult for a coworker or subordinate to fulfill the requirements of their job.

If bullying is a tactic being used against you by a racist on the job, you should stay away from the term “bully” and focus more on the actual consequences of the mistreatment. As stated above, you should focus on discussing the specifics of the hostile work environment and provide examples of your mistreatment and how it is preventing you from doing your job.

So, you would want to mention, for example, that you are being subjected to verbal and physical threats, you are being yelled at in front of coworkers, you are called by racial epithets, you are being subjected to stare down contests, you are having your space encroached upon as a method of physically intimidating you, your emails and voice mails are not returned and it is preventing you from doing your job, and that your are completely ignored in one-on-one meetings and group meetings. Again, these are examples.

Most importantly, you must show that this mistreatment is race-related in order to be covered by Federal statutes prohibiting the discrimination and harassment of a member of a protected class. You can do this by showing that the excuses provided by the harasser (bully) are nothing more than a pretext to hide their real motive—racism. You can show that you are treated differently than similarly situated employees, such as coworkers in the same job of another race.

You can point out that you were subjected to heightened scrutiny (observation), unlike similarly situated employees or employees of any class within your unit or the company, as a whole. You can also show how your performance reviews contained surprise negative feedback that was contradictory to the positive feedback you received throughout the year or you can describe how you were falsely labeled as having performance deficiencies. You must build a case that shows that there is no reasonable justification for why you were targeted except race.

By connecting the so-called bullying behavior to active racism, you can demonstrate that a coworker or supervisor or other member of authority violated your rights under Federal law. Remember, focus on specifics. Don’t rely on the term bullying as a catch-all phrase. Bullying will make it seem like there was a simple personality problem between two employees. So, if you have a race-based issue at work…that is how you should refer to it. Don’t water down your case by referring to bullying instead of active racism, discrimination, and harassment.

Reader Comments: Defamation by Conduct

Here’s some information that was sent to me by a reader. I’ve concealed the identities of those involved, but this is still a powerful example of how a person can have their reputation destroyed by colleagues and managers. It’s also an example of how defamation/slander, etc. can cost a person their job!

The Reader wrote...

Employers either don’t realize, don’t care, or don’t see it as a serious of issue, but slander, libel and defamation of character are illegal and the employer can be penalized. Here's what happened to me:

Coworker X knew the accusations she made against me were lies, yet she repeated them to Coworker Y, Coworker Z, and Manager A; Manager A then “confirmed” Coworker X’s statements through Coworker Y and Coworker Z, who admitted to Manager A that they were only repeating what they had heard from Coworker X. Neither Manager A nor HR had proof of the accusations, they didn’t make an attempt to find the truth, and based on HR’s comments, HR only judged me guilty because one person made the accusations but the accusations were “confirmed” by “many/several” people. Manager A judged me guilty because according to her “many/several people said the exact same thing and they couldn’t all be wrong.” Uh yeah, and she’s actually a member of management. Go figure.

Coworker X knew she was making false statements against me therefore, her actions were defamatory; Manager A/the company’s actions may show defamation by conduct as their actions showed a “reckless disregard for the truth.”

I was suspended based on these lies! The stipulations in a Final Written Notice I received was that if any employee construed or perceived me to have violated the terms of the suspension or the Final Written Notice, it was grounds for my immediate termination. Well, how and why would any employee be privy to the terms of my disciplinary action? Did Manager A tell staff that if I rolled my eyes to come tell her? Or if they heard me talking about her (as was reported by Coworker X on March 8) or if I didn’t greet them or gesticulated excessively, to inform her? Obviously, the way that Manager A drafted my Final Written Notice which was approved by HR, and the language used regarding grounds for immediate termination implies that staff were privy to information that was not their business and may prove that Manager A/my employer informed my coworkers of my disciplinary action although my coworkers didn’t have a legitimate right to know. This is illegal and grounds for a lawsuit.

If an employee knowingly makes and then spreads false statements about a person/people in the workplace, and the statements negatively impact this person/people, i.e., staff no longer associate with them, advancement/job opportunities are lost, the employer can be accused of defamation by conduct.

Manager A and my employer are guilty of defamation by conduct by “publishing” the Final Written Notice included in my personnel file. The Final Written Notice automatically prevents me from being rehired at my employer because the accusations against me violate their code of ethics. But the accusations aren’t true and that should prove detrimental to my employer’s argument that they did “everything by the book” regarding the actions they took against me.

I was subjected to a reduction in force action/laid off due to my job being designated as no longer necessary. But, I was told that I could reapply for a job at the same company. I pointed out to HR that the language of the Final Written Notice was slanderous and extremely harsh and that my chances of being rehired at my employer were null. She said the Final Written Notice would not be removed – well that was fine with me since it proves my defamation claim. My employer’s conduct in relation to their “investigation” and the Final Written Notice is questionable because the “evidence” they used to judge me guilty were the statements made by Coworker X and confirmed by Coworker Y and Coworker Z – but Coworker Y and Coworker Z admitted to HR and Manager A that they were only repeating what they heard from Coworker X.

Something that may prove detrimental to my employer – Manager A informed some staff that some of us were being laid off (and she named us) before notifying the laid-off coworkers. And, she informed them that we were being let go but new staff were being hired. So how did she justify letting us go?

And, when I called the Director of Labor, Employee Relations and Compliance and informed him of: Coworker X’s actions; another baseless accusation being made against me in an effort to defame my character; and that I continue to question the motivations of Coworker X and Manager A (and I used this exact language), he had the opportunity to investigate the situation right then and there. But he did absolutely nothing. My phone call put him on notice that I was being slandered and maligned yet again, and he did nothing. I am pursuing action in this matter!

What happened to me may also serve as defamation by conduct and courts are starting to take this very seriously. Here are some links that may be helpful:

http://library.findlaw.com/1999/Sep/1/127684.html

http://www.uslaw.com/library/article/carel8DefamatoryAction.html?area_id=43

Thanks, reader, for sharing your horror story!

DO YOU HAVE ANY EXAMPLES OF WORKPLACE DEFAMATION, ETC. THAT YOU’D LIKE TO SHARE? POST A COMMENT OR SEND AN EMAIL TO BLACKONTHEJOB@YAHOO.COM!

What is a Hostile Work Environment?

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

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

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

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

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

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

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

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

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

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

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

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

A claim of harassment generally requires several elements, including:

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

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

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

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