Employers Don't Get to Rewrite History!

“Even if higher management proves that evidence it discovered after-the-fact would have justified a supervisor’s action, such evidence can only limit remedies, not eliminate liability.”

McKennon v. Nashville Banner Publishing Co., 513, U.S. 352, 360-62 (1995).

So, an employer cannot go back and try to retroactively uncover incriminating evidence against an employee as a means of denying all liability for some violation that took place on the job.

At the time employment decisions were made any new facts were unknown and, therefore, had no impact on the decision-making process.

If an employer argues that newly uncovered information justified a past employment decision, then they need to explain how they took the action in the first place. Employers can't have it both ways. Either they had enough evidence to justify their actions or they didn't. What would they still be looking for at the 11th hour and how could anyone look at such late-breaking evidence as credible?

Employers may still be liable , even if they find new evidence that allegedly supports their position.

Attack Your Employer's Credibility

One of the tactics you can use to defeat the lies and false accusations of an employer is to attack their credibility—the same as your employer will attack yours!

There are four basic components for looking into who is or isn’t credible: inherent plausibility, corroboration, motive to falsify, and past history. These are the same components that your employer will try to use to show that you—and not they—lack the credibility to be taken seriously.

Here are some of the questions you should ask yourself regarding the four basic components. These components are also helpful in shaping your overall arguments and positions regarding your complaint and any actions taken by your employer.

Inherent plausibility

--Are your employer’s arguments and positions believable at face value? Why or why not?

--Do their statements and evidence (real or fabricated) make sense? Why or why not?

--Are the actions of your employer justified/appropriate based on allegations or has your employer overreached or overreacted? Explain your position in detail.

--Do the actions of your employer adhere with written policies and procedures or are there violations? For instance, does written policy state/suggest that you should have first been placed on oral warning, but your employer jumped 3 phases and suspended you? Or, was your complaint automatically supposed to be internally investigated (based on your complaint), but your employer did not look into the facts/blatantly ignored your complaint? Provide specifics, provide copies of written policies and procedures, and explain how policies and procedures were violated.

When it comes to inherent plausibility, your goal is to shoot holes in every one of your employer’s arguments and positions. You should be thinking of cross examinations at a trial, when the defense is trying to shut down and destroy prosecution witnesses. Attack! Attack! Attack!

Motive to Falsify

--Does your employer have a reason to lie?

If so, show how your employer's cover story is simply designed as a pretext to hide their real motive--discrimination, harassment, etc. Use your employer's arguments against them to expose contradictions, violations of policy, etc. Use circumstantial or direct evidence to show the false case that was built by your employer.

--Do your employer's witnesses have a reason to lie?

I’m sure you’ve heard the expression, ‘If you think they’re out to get you, they probably are?”

Well, I’m aware of a case of race-based retaliation, where an employer tried to cover up activities against a Black manager by essentially bribing the Black staff in her department to make statements against her or to pretend they did not know what was going on within the department.

Suddenly, there was a market review conducted of salaries within the department and all of these underpaid Black employees received increases. Additionally, Black employees that were willing to sign false statements against the manager were also given a separate salary increase. There was suddenly a performance award given out with a $1,000 bonus. Coincidentally, a Black person in the manager’s department won the award. The award was touted as being a new annual award, but the award was NEVER given out again!

In my case, my two main witnesses received harassing treatment and were calling me to tell me about sudden performance issues they were being alleged to have. They both felt that they were being told to shut up about what they witnessed and heard being said to me.

These are the things you should try to expose because they show people’s motive to lie on you. Some people do not need money to lie. They will lie simply to win favor with your employer and they will HOPE that lying provides them a benefit somewhere along the line. These types of people may feel lying just amounts to office politics and smartly playing the corporate game, so they will take down anyone that may present them with a problem and they will do whatever it takes to show they are a team player.

Some people have a motivation to lie in order to protect someone in the workplace that is highly valued, that they have a close relationship with, etc. You can help prove motivation by showing the links between staff, managers, important business deals, etc.

Corroboration

--Is there witness testimony?

--Is there physical evidence?

You need to create and maintain a list of witnesses that can back up your story of workplace events. If employees resign, that have witnessed your mistreatment, get their contact information or—at the very least—snoop around and find out what company they’ve gone to work for. You can always look them up later.

If possible, get your witnesses to write statements about what they’ve seen. Ask them to get the statements notarized. Someone close to you may be willing to do this! If you think someone would be hesitant to provide you a statement or even to write down what happened in an email, trap them. Yes, I hate to go there, but sometimes you have to trick people into telling the truth. Just see if you can get the person to engage in an email conversation with you about the incident. You can be like, “Can you believe she called me a ------ ?” And, keep the conversation going as long as possible to show that you were called an offensive name, as per this example, and that someone else heard the slur.

As far as physical evidence, document everything, save all hard copies of important and relevant paperwork (e.g., administrative forms, timesheets, etc.), forward important email, memos, etc. to your personal internet account, and if there has been physical violence—take pictures. If there has been physical violence, you should also call the police and make a report. You can also secretly tape record conversations and meetings. Even if it’s not admissible in court, you can use it to convince an investigator, lawyer, etc. to understand that your case is with merit and should be investigated.

Past Record

--Does your employer have a history of similar behavior and allegations?

You saw how they did Michael Jackson at his trial. Right or wrong, when there is an accusation, there is also an attempt to show a pattern of bad behavior. If you are under attack by your employer, you already know what I am talking about. In my case, one false allegation led to another and another. Before you knew it, my employer was trolling through my previous performance evaluations from years before and they were taking a sentence or two from the section about improving performance. They added this information to my current review and then wrote, in my latest review, that I was habitually and continually having these problems. This was a lie, but they were smart. They needed to make me a problem employee. They could only do that by pretending that I was consistently engaged in negative behavior. They twisted feedback on minor improvements that any employee could make and made them into a federal case that allegedly warranted me being targeted for HR attention.

This is what employers do, when they’ve committed to a course of action against an employee (e.g., setting a person up for termination, demotion, etc.).

You have to take the same tactic and show how your employer has a past history of engaging in mistreatment, misconduct, not investigating allegations of race-based abuses, or how they’ve previously engaged in discrimination, harassment, retaliation, etc. Ask questions and snoop around. One of your coworkers may have information you can use. Or, you may already know about how someone was dogged out by your employer, but you were uninvolved in the incident. Write down everything you know about that case and any others that are similar or show the same corporate dysfunctions you believe to be a problem in your case. Show the patterns!

Proactive Prevention By Employers

Employers shouldn’t wait for race-based problems to crop up in the workplace. Instead, they should be proactive in trying to prevent any race-based harassment of employees in their workforce.

To protect employees from unlawful racial (and other) harassment, employers should adopt a strong anti-harassment policy, periodically train each employee on its contents and procedures, and vigorously follow and enforce it. The policy should contain:

• A clear explanation of prohibited conduct, including examples;

• Clear assurance that employees who make complaints or provide information related to complaints will be protected against retaliation;

• A clearly described complaint process that provides multiple, accessible avenues of complaint;

• Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;

• A complaint process that provides a prompt, thorough, and impartial investigation; and

• Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

If you are the victim of race-based harassment and retaliation in the workplace, look at these areas to determine where you believe your employer failed. This may be a part of the case you build against your employer, should you decide to vindicate your rights through an outside investigating agency or through a lawyer.

For example, if you file a complaint of harassment and your employer spreads the word, you could argue that your employer assisted in the creation of a hostile work environment by failing to provide you with any measure of confidentiality and allowing your harasser to learn of your actions, to escalate those actions, and to turn other employees against you.

Another example might be that your employer determines that a coworker has been harassing you, but does nothing to the employee because they are working on a major contract and are valuable to the organization. Having gotten away with harassing you, the employee continues to engage in the attacks against you. Even if they had not, the employer sent the message that it was okay to engage in illegal activity.

One of the best things you can do, if you are filing a complaint against an employer, is to have a clear understanding of company policies and procedures and to use those policies and procedures against your employer at every opportunity. It is very powerful to be able to show that your employer's written anti-discrimination, harassment and retaliation policies amount to a paper tiger.

Written policies don’t protect an employer. If their processes are deficient and if they ignore their own policies, they may be held legally liable for any violations of Federal statutes.

Know the policies and procedures, know your rights, and show the contradictions or lack of enforcement of anti-discrimination, anti-harassment, and anti-retaliation provisions.

Source: http://www.eeoc.gov/policy/docs/race-color.html#VIA2

Types of Damages

Let’s take a very quick look at two types of damages:

1. Compensatory Damages

Compensatory damages refer to damages that are recovered in payment for injury or economic loss.

2. Punitive Damages

Punitive damages are damages that are added due to malicious or grossly negligent action. Punitive damages may be awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts.

In a disparate treatment case, the statute (Title VII) allows the following remedies (as applicable): injunctive relief*, reinstatement, front pay (until or in lieu of reinstatement), back pay, attorney’s fees and costs, compensatory damages for any past or future out-of-pocket losses and any emotional harm, and punitive damages if the employer acted with malice or with reckless indifference to the individual’s federally protected rights. Punitive damages are unavailable against a federal, state, or local government employer.

The law places caps on the sum of compensatory and punitive damages for which an employer may be liable. The caps are based on the size of the employer’s workforce:

Employers with 15 - 100 employees: up to $50,000
Employers with 101 - 200 employees: up to $100,000
Employers with 201 - 500 employees: up to $200,000
Employers with 501 or more employees: up to $300,000

The caps apply to the sum of: punitive damages, and compensatory damages for emotional harm and future pecuniary losses (financial losses). The caps do not apply to back pay and interest on back pay, front pay, or past pecuniary losses.

Section 1981A(a)(1) and 706(g) of Title VII.5 allow for compensatory and punitive damages to be recovered.

Source: www.eeoc.gov

* Injunctive relief refers to a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction. Injunctive relief is not a judgment for money. It is sometimes part of a lawsuit for damages and/or contract performance. (Source: www.law.com)

5 More Considerations for Calculating Damages

Sorry for the late posting. I was visiting a newborn cousin today.

As promised, here are 5 more factors to consider, when calculating damages against an employer. This is not an exhaustive list. However, these 10 factors will certainly give you a good starting point for evaluating the amount of damages you and/or an attorney may seek in a civil suit. Even if you are represented by an attorney, you should still have an understanding of some of the factors that are weighed in regard to calculating damages.

So, here are factors 6-10:

6. The employer's actions after it was informed of discrimination should be considered. An employer who has notice of discriminatory conduct and fails to take action could incur
punitive damages.

For instance, after an employee complained of discrimination (harassment and/or retaliation), if the employer failed to do anything to prevent or stop continued discrimination, that would be compelling evidence of a tolerance or an encouragement of behavior that violates Federal statutes and could warrant damages. f

7. Proof of threats or deliberate retaliatory action against complaining parties for complaints to management or filing a charge normally will constitute malice.

For instance, if you have evidence that you were threatened financially by a supervisor based on suspicion that you might file or had filed a complaint. This would be compelling evidence, which should be considered for determining damages.

8. Relevant background facts.

Specific employment decisions and issues should not be looked at in isolation. Other information that can shed light on whether the employer’s adverse employment decision was motivated by race includes the employer’s treatment of other employees (or customers, etc.), race-related attitudes, the work environment generally, and the context of the challenged employment decision.

For example, background evidence that an employer has discriminated against African Americans in hiring, pay, or promotions would support an African American employee’s claim that a pattern of mistreatment – e.g., her supervisor undermining her work, ostracizing her, and making snide comments – is actually a pattern of race-based harassment.

The point is that background evidence can help determine the employer’s state of mind and otherwise provide important context. Also, as suggested by the above example, the inquiry into background evidence can reveal other potential violations of the statute.

9. Relevant personnel policies.

An employer’s deviation from an applicable personnel policy, or a past practice, can support an inference of a discriminatory motive.

It would be quite compelling for you to show that your employer ignored or strayed from their personnel policies in regard to you. Or, that your employer deviated from some past practice or standard operating procedure in your case. The question would be raised, what was the motive for the employer taking actions, which contradict there standard practices or actual personnel policies?

10. Comparative treatment evidence.

This is evidence as to whether you were treated the same as, or differently than, similarly situated persons of a different race.

For instance, how were White employees of a similar title, level, pay grade, etc. treated compared to you? Can you show that different and/or lax standards were used to evaluate the skills, education, years of service, etc. in a manner which clearly was set up to benefit White staff. Were White staff promoted despite the fact that they failed to meet the established standards set by the company? Were you denied a promotion based on not meeting standards that didn’t apply to White staff? It’s important to show how you were treated differently.

There will be more information tomorrow on damages.

Source: http://www.eeoc.gov/policy/docs/damages.html

Considerations to Make When Calculating Damages

After looking at various EEOC recommendations and guidelines, there are about 10 factors I’d recommend you consider when it comes to calculating damages to seek against an employer. Today, I will list the first 5 factors:

1. The degree of egregiousness and nature of your employer’s (coworker’s, supervisor’s, etc.) conduct should be considered.

When you think of egregious behavior, think of what the EEOC refers to as behavior that is “shocking” or “offensive to the conscience.” Egregious behavior is outlandish/extreme and unconscionable.

For instance, a coworker throwing a make-shift noose around a Black employee’s neck and HR dismissing this as “horseplay.”

Or, a Black worker being told, per the EEOC example, that only a certain number of Black workers could work in a store because when too many Black people get together “they get arrogant.”

Egregious behavior should be considered, when evaluating damages.

2. The nature, extent, and severity of the harm you suffered should be considered.

For instance, if you were discriminated against and subjected to a hostile work environment from a wide range of higher-ups in management. During that time you were demoted, stripped of your assignments, forced to take a pay cut, humiliated in front of coworkers and clients, etc.

The nature of the harm suffered, the seriousness of the harm, and the level/scope of the harm are key factors.

3. The duration of the discriminatory conduct should be considered.

The longer you were subjected to discriminatory behavior, the more liability may be relevant to your case.

4. The existence and frequency of similar past discriminatory conduct by your employer should be considered.

Are you aware of past or current employees, who were subjected to similar discriminatory behavior? If so, make a list and speak to these individuals to find out details that will show a potentially systemic problem at your company (discriminatory behavior at your place of employment may be an official policy). Document everything you can find out. Ask around discreetly. Try to find out if there were past complaints or lawsuits filed with attorneys or investigations conducted by an external investigatory agency. People talk! Someone will likely know about such cases and may be all too willing to tell you about them.

5. Evidence that your employer planned and/or attempted to conceal or cover-up the discriminatory practices or conduct is relevant.

Did your employer try to come up with pretexts (racially neutral motives) to cover up the racism in your workplace and any actions taken against you?

For instance, did your employer get staff to lie about you and make false statements about your work or attitude? Did you employer give you a malicious and false performance evaluation to justify negative employments actions that you were already subjected to? Did your employer give you a malicious and fraudulent performance evaluation in order to justify denying you a promotion that you were due for? Did your employer create new policies or procedures to cover up their actions? Did items turn up missing from your personnel file or was your personnel file destroyed?

Look for evidence that shows intentional malice (planning) and actions that show concealment or a cover-up.

Tomorrow, there will be 5 more factors to consider.

In the meantime, you can also check out this link: p://www.eeoc.gov/policy/docs/damages.html.

Tips on Mediation

EEOC describes their mediation process like this: Mediation is a fair and efficient process to help you resolve your employment disputes and reach an agreement. A neutral mediator assists you in reaching a voluntary, negotiated agreement. Choosing mediation to resolve employment discrimination disputes promotes a better work environment, reduces costs and works for the employer and the employee.

When you’re dealing with an agency, such as the EEOC, to even be offered mediation means that your case has been deemed to have merit and that your case warrants an investigation by the agency. So, you’ve gotten past the point where your employer can claim that your case is without merit. But, that won’t necessarily prevent them from claiming just that. Anyway, mediation is the first choice/desired action because it is less time consuming and avoids litigation.

A friend of mine recently went through mediation with a government agency. Those present at the mediation meeting included my friend, the government mediator, the Human Resources representative (representing her former employer), and the former employer’s attorney.

The reason I decided to share tips on mediation is because my friend felt strongly that the mediator was really pushing her to make decisions that weren’t necessarily in her best interest. For instance, when her former employer low-balled her with a financial settlement offer, the mediator made a big show out of telling her what a great offer was being made to her. Yet, the offer didn’t consider back pay or compensatory damages. My point isn’t to get into the specifics of her case, but to share some of our discussions about the mediation process. Here are some tips to keep in mind;

1) Remember that you aren’t required to reach an agreement at mediation. DON’T LET ANYONE PRESSURE YOU INTO AGREEING TO A RESOLUTION YOU TRULY DON’T ACCEPT OR THAT YOU THINK IS UNFAIR;

2) Don’t assume your employer’s representatives will tell the truth at the mediation meeting. INFORMATION SHARED AT MEDIATION IS DEEMED CONFIDENTIAL AND CAN’T BE USED AGAINST THE OPPOSING PARTY AT A LATER TIME. So, don’t be surprised if you hear new false allegations at a third-party mediation session. Your employer won’t be legally committed to these new fabricated allegations;

3) Remember that the mediator is not there to provide you with legal advice;

4) If possible, take a lawyer with you, since your employer may bring representation. You should also have a lawyer there to represent your best interests, as well as to provide clarification on the Federal statutes;

5) Don’t assume the mediator is fair and impartial—or even good at their job; (the same as Human Resources staff, who are often not fair and impartial and usually work to protect the employer!);

6) Don’t assume the mediator isn’t trying to quickly move cases off their desk and may be using their personal work-related stressors to influence your actions/judgment;

7) Don’t assume the mediator is tilted in favor of the “little guy,” rather than the employer;

8) If you are engaging in third-party mediation with an agency, such as the EEOC (rather than so-called workplace mediation), and you don’t like the agreement being offered, simply decline to resolve the issue through mediation. Declining the offer will result in a full government investigation of your employer; and

9) To hell with your employer! You should consider the impact the abuse has had on you—personally and professionally. That includes consideration of compensatory/punitive damages related to loss of pay (termination, wrongful denial of promotions and raises, salary cuts/demotions, etc.), loss of work/sustained unemployment, any health issues caused by the stresses at work, damage to your professional reputation within your field (future employment issues), etc.

IF ANYONE HAS GONE THROUGH THE MEDIATION PROCESS, PLEASE SHARE YOUR THOUGHTS. POST A COMMENT!

If you want to know more about the government perspective on mediation, the EEOC has a link to facts about government mediation at: http://www.eeoc.gov/mediate/facts.html and a Q&A on government mediation at: http://www.eeoc.gov/mediate/mediation_qa.html

Black Factor's Legal Briefs

From time to time I’ll include posts called Legal Briefs, which provide updates on workplace discrimination, harassment, and/or retaliation lawsuits that have been recently filed or settled in civil court. The point is to let readers know what types of race-related cases have been filed and settled, as well as to provide a look at some of the legal language that is used by complainants in those cases. But, even more importantly, the legal briefs can help confirm that some of the issues readers are facing are in fact happening to other Blacks around the country and that these actions are often illegal.

I’ve been on the receiving end of questionable activities by an employer. So, I know that Black workers go through this mental back and forth…wondering if they are being sensitive or if they are blowing things out of proportion—as we are inevitably accused of by our supervisors or employers. I also know that we often wonder whether actions taken against us are illegal or if employers are within their rights to engage in certain activities.

For instance, in the last legal brief on a race discrimination case settled between Nike (Niketown-Chicago) and over 400 Black employees, the complainants alleged that Nike denied employment benefits to African-American employees by predominately hiring African-Americans into part-time rather than full-time positions and by denying appropriate benefits to those who, though officially part-time, worked enough hours to be entitled to full-time benefits.

I worked for one of the nation’s biggest department store chains, here in New York. Reading that blurb on Nike was like reading my complaints about this megastore. I went in for a job and supposedly only part-time jobs were available. The hours were so few that there weren’t any benefits involved with the position. But, I wanted to work. Anyway, almost immediately I was being asked to work until closing at the store (5 days a week) and I was being asked to work 10-11 hours on Saturday and Sunday.

You can see how the hours were piling up. I immediately wondered why I was listed as part-time, when I was working full-time hours. And, I wondered why there weren’t any benefits. Another worker warned me not to complain about not having benefits. She said that if I complained or asked about the hours, all of my hours would be cut and I would barely be given enough hours to warrant coming in at all.

What was really troubling about this megastore was that as I went floor-to-floor and looked at the staff, I saw that most of the people working on the floors were Black, Hispanic/Latino or Asian (Middle Eastern). Almost all of us were in these part-time jobs, but were working nearly full-time hours. In fact, my supervisor made it a point to mention (in a staff meeting) that only 2 of her 16 subordinates were full-time and that everyone else was part-time and was not eligible for benefits. She said that if we had a problem with that, we could find other work. She was supposed to be doing us all a favor by giving us hours—even without the benefits that would be required by this regular schedule.

I was out of there with a quickness because of this and other problems. However, other employees were trying to convince me that there wasn’t a legal issue with this megastore having almost all part-time staff (mainly minorities) working full-time schedules, but not receiving benefits. They thought it was up to the company’s discretion to make the decision on benefits.

You can call it common sense or not—that if you are working full-time you are entitled to benefits. However, common sense isn’t always common. Many people don’t know their rights and don’t want to challenge a systematic disregard for their rights.

If you look at the Niketown post, you will see that employer’s engaging in this practice may be liable for damages, if they are placing minorities into positions such as this and then are denying them their legally required benefits. This behavior may be illegal and should be questioned. Seeing the Niketown settlement just made my heart go out for everyone placed in the position of working their a**es off for peanuts and not getting the benefits they’ve earned through their sweat and dedication to their job. I felt that that job was a step above working on a plantation. We had absolutely no rights and no respect. And, the employees didn’t want to contact the union about it or make any waves because they desperately needed their jobs and were fearful of complaining.

I got out of there. Still, a chill ran down my spine seeing the same issue at the Niketown store with more than 400 employees raising the same complaint. As a result, I’d recommend that you don’t just skim the legal briefs. Really take a look at the allegations being filed. You might see some similarities to your own issues at work—even issues that you may not have realized were illegal. The legal briefs also provide a snapshot of the legal arguments used and of the legalese—the language—associated with certain violations of law/statutes.

If you are seeing similarities to the cases in the Legal Briefs, there might be language you can use or arguments you can make that more clearly represent your issues—from a legal standpoint. Of course, you aren’t looking at the cases and making false claims. But, you can definitely use the cases to assist you with your wording, improving your understanding of law, and to further develop your complaint by citing similar examples of illegal conduct.

Compensatory Remedies under Title VII

Many employees, who have filed a formal complaint/taken legal action alleging disparate treatment, often wonder about the remedies that are available to them under the law. While each case is different, there are general guidelines regarding financial liability (compensatory and punitive).

Definitions: Compensatory damages refer to damages that are recovered in payment for injury or economic loss. Punitive damages are damages that are added due to malicious or grossly negligent action. Punitive damages may be awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts. Injunctive relief refers to a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction. Injunctive relief is not a judgment for money. It is sometimes part of a lawsuit for damages and/or contract performance. (Source: www.law.com)

In a disparate treatment case, the statute (Title VII) allows the following remedies (as applicable): injunctive relief, reinstatement, front pay (until or in lieu of reinstatement), back pay, attorney’s fees and costs, compensatory damages for any past or future out-of-pocket losses and any emotional harm, and punitive damages if the employer acted with malice or with reckless indifference to the individual’s federally protected rights. Punitive damages are unavailable against a federal, state, or local government employer.

The law places caps on the sum of compensatory and punitive damages for which an employer may be liable. The caps are based on the size of the employer’s workforce:

Employers with 15 - 100 employees: up to $50,000
Employers with 101 - 200 employees: up to $100,000
Employers with 201 - 500 employees: up to $200,000
Employers with 501 or more employees: up to $300,000

The caps apply to the sum of: punitive damages, and compensatory damages for emotional harm and future pecuniary losses. The caps do not apply to back pay and interest on back pay, front pay, or past pecuniary losses.

In a “mixed motives” case, in which an employment decision was motivated in part by race but the employer proves it also was motivated in part by a nondiscriminatory reason that would have resulted in the same decision by itself, Title VII still is violated but the remedies available are limited. The law allows declaratory relief, injunctive relief, and attorney’s fees and costs, but not reinstatement, hiring, back pay, or compensatory or punitive damages.

In an “after-acquired evidence” case, in which an employment decision was motivated by race but the employer proves that it subsequently discovered evidence of the applicant’s or employee’s wrongdoing that would have led to a similar decision on legitimate grounds even absent discrimination, Title VII still is violated. However, the remedies available are limited as follows: back pay is generally limited to the period from the date of the unlawful employment action to the date that the misconduct was discovered, compensatory damages are typically excluded for out-of-pocket losses incurred after the date that the evidence of wrongdoing was discovered, and reinstatement (or instatement) and front pay are not available. Other remedies, including compensatory damages for emotional harm and punitive damages, are not affected.

In a disparate impact case, in which a policy or practice has a significant disparate impact but cannot be justified by job-relatedness and business necessity, the employee is entitled to injunctive relief, reinstatement, front pay (until or in lieu of reinstatement), back pay, and attorney’s fees and costs. Compensatory damages and punitive damages are not available in disparate impact cases.

For further information on compensatory and punitive damages, see Enforcement Guidance: Compensatory and Punitive Damages Available Under §102 of the Civil Rights Act of 1991 (1992), available at http://www.eeoc.gov/policy/docs/damages.html.

For a fuller discussion of after-acquired evidence, see Enforcement Guidance on After-Acquired Evidence and McKennon v. Nashville Banner Publishing Co. (1995), available at http://www.eeoc.gov/policy/docs/mckennon.html.

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

Employment Law Research Links

When a person comes under attack at work and decides they want to know more information about employment law and their overall rights, they often don’t know where to turn. From personal experience, I know what it’s like to go on a mad Internet search to find out what applicable laws and statutes are relevant to a race-based complaint at work.

If you are making complaints about race-based workplace abuses, in many cases you aren’t going to necessarily trust your company’s HR department to be extremely truthful. After all, the company HR department isn’t automatically going to behave as a neutral party and may be assisting in efforts to silence your complaint about illegal mistreatment.

I came across an interesting resource. The NOLO web site (a legal resource) has a great research tool that will allow you to look for specific employment law statutes and cases. The site allows you to input key search terms or the title number and section number of a specific U.S. Code—if you already know what you are looking for. The more specific your search terms are, the better your returned results will be.

For instance, the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. The Civil Rights Act is contained in U.S. Code 42 starting at section 2000e. There is also equal rights information at U.S. Code 42—section 1981. To research these examples on the NOLO site, you would input 42 as the title and 2000e or 1981 as the section.

You can research Federal laws, state laws, U.S. codes (laws made by Congress), the U.S. constitution (you can search the constitution or browse the Bill or Rights), and the Code of Federal Regulations (rules made by federal agencies and executive departments). There are also other links on the site, such as a link to find bills that have not yet become laws and recent laws (called "Public Laws") that have been approved by Congress and signed by the President, but are not yet included in the U.S. Code.

The link to the site is: http://www.nolo.com/statute/federal.cfm

LEGAL BRIEF: Michigan Company to Pay $500,000 in EEOC Race Bias Suit

I think it was comedian Chris Rock, who once joked, “A White person would rather hire their 52nd retarded cousin, than hire somebody Black.”

That joke seems to fit this update on legal news, considering that the company (described below) would rather hire less qualified Whites, than to bring Black staff into the company to contribute to their success.

Legal Update: A South Lyon, Mich., steel tubing company will pay one half million dollars and implement injunctive relief to settle a race discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC had charged that Michigan Seamless Tube, after purchasing the assets of its predecessor company, refused to hire a class of African American former employees of the predecessor.

According to the EEOC’s suit (Civil Action No. 05-73719 in U.S. District Court for the Eastern District of Michigan), Michigan Seamless began hiring former employees of the predecessor in November 2002. During the company startup, 52 of the former employees were hired -- none of them black. Michigan Seamless continued to hire former employees through 2005, but no African American employees of the previous company were ever hired. Many white employees hired had significantly less experience than the black former employees represented by the EEOC, and in some cases had actually been trained by the same African American employees who were denied hire. The suit also included other black applicants who were denied hire in favor of less qualified white applicants.

Under the consent decree settling the suit, Michigan Seamless will pay $500,000, to be distributed to the class members based on an individualized determination. Michigan Seamless is also required to recruit black applicants by a variety of methods, and will provide training on anti-discrimination laws to all its employees, managers and executive officers.

“This case shows that race discrimination is still a major problem in today’s workplace, more than 40 years after passage of the landmark Civil Rights Act,” said Trina Mengesha, the EEOC attorney who litigated the case. “We trust that management at Michigan Seamless will change its practices and permanently stop discriminating against qualified black applicants.”

Source: http://www.eeoc.gov/press/6-8-07.html

Investigate the Perpetrator of Discrimination, Harassment, etc.

Start a similar incidences log! If you are being harassed or discriminated against at work, you should do your best to find out if your harasser or tormentor has had similar encounters with other employees or if there have been other informal or formal complaints lodged against this person. If so, you should create a log that you can use to track this similar past behavior.

If a pattern of negative behavior exists, you should use this log 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. 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.

LEGAL BRIEFS: Iron Workers to Receive $800k payout!

According to the EEOC, the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers Local 580 in Manhattan will pay $800,000 to 45 Black and Hispanic members. The penalty is for refusing to refer minority journeymen to jobs between September 1992 and August 2004. Payments to the members will range from $2,000 to $47,000.

LEGAL BRIEFS: TRANSIT COPS ALLEGE ON-THE-JOB RACISM

Talk about seeing the writing on the wall, but ignoring reality…

Going back as far back as the mid-80’s, NY Transit cops now say they have been summarily discriminated against based on their race. For instance, Detective Marshall Mazyck (Black) asked for a 1984 transfer to an anti-crime unit, when a White commander came right out and told him “We don’t want ni**ers in this unit.” That should have been the first clue to talk to a lawyer. That’s direct evidence of racism!! Nevertheless, Detective Mazyck stayed on the job.

Today, a group of minority transit cops, including Detective Mazyck, have filed a $12 million lawsuit against the Metro Transit Authority (MTA) for systematic discrimination. The cops say they were often subjected to racial slurs, were frequently passed over for promotions, and were even denied many overtime opportunities. For anyone who knows anything about these jobs, you can make a killing on the overtime alone. Overtime pay will SUBSTANTIALLY boost your year-end take, when you work for the MTA.

One obvious clue that the MTA likely discriminates comes in this statistic—96 percent of people holding the rank of captain or higher are…(drum roll)

WHITE!

We’ll see what happens with the lawsuit, but the initial allegations and stats don’t look good for the MTA.

As for the cops, better late than never! I’m glad they had the courage to come forward to fight such a powerful state agency.

Source: NY Daily News, Transit Cops Sue “Racist” MTA, by Kari Cornell, Saturday, May 5, 2007

Harassment by a Co-worker or other "Non-Employer"

Some workplace harassment is not perpetrated by someone in a position of authority over an employee. Instead, the harassment may be carried out by an employee’s coworker(s) or some other "non-employer." When this type of harassment takes place, it is often common knowledge among staff. 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.

LEGAL BRIEF: Only the Mental State of the Harasser is Relevant!

When racially-based issues take place in the workplace, employers like to use a few tactics:

--Deny everything!
--Blame the complainant by turning the victim into the bad guy and by pointing out alleged deficiencies with the victim’s behavior. In other words, they will justify why the victim was targeted for mistreatment.
--When backed into a corner, lay all of the blame on the offender and declare—as loudly as possibly—that the company’s higher-ups would have never tolerated illegal misconduct and would have immediately corrected inappropriate behavior, if they had only known about it.

I’d like to focus on #3 for a moment. You see, employer’s like to put all of the blame on a coworker or supervisor, after they see there isn’t any reasonable way they can claim that illegal misconduct didn’t take place. By laying blame on one or more individuals, many employers believe they can escape liability. They will try to make the illegal misconduct look like an anomaly and something that is extremely atypical of what would normally occur in their workplace.

So, the employers will be spitting all of this venom and fire about how horrible the offender was and how they were a rogue employee that went off the rails. The employers will position themselves as rationale, fair, and helpful in the hopes they can escape liability.

But, in the Supreme Court decision for Kolstad v. American Dental Association, 119 S. Ct. 401, (1998) it says, “The test for imposition of punitive damage is the mental sate of the harasser, not of the higher-level officials…”

Therefore, it doesn’t matter how reasonably or fairly the employer may have acted or would have acted; they are still liable for the illegal behavior of their staff, supervisors, etc.

The EEOC states that:

“…an employer is liable for punitive damages if its supervisor commits unlawful harassment or other discriminatory conduct with malice or with reckless indifference to the employee’s federally protected rights.”

So, don’t let an employer sweet talk you into believing that you have no way to seek remedies outside of whatever they may or may not decide to do—in the workplace—to your harasser. Your employer may still have legal liability and may have to pay punitive damages to you, depending on the specific circumstances.

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.