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!

Employers Can Stop and Correct Harassment

If you are the victim of racially-based or other harassment at work, your employer’s hands are not tied regarding effectively handling the situation in a manner that is likely to prevent your mistreatment from occurring again. Your employer has many options available to deter and stop harassment, regardless of the impression that those in authority (supervisors, Human Resources staff, etc.) may provide you.

When it comes to claims of racially-based harassment, companies often do not like to respond even though providing an adequate response to illegal behavior is in their best interest. Instead of squashing the careers of those who would harass a coworker or subordinate, many companies go into denial mode, which they believe offers some form of protection. In other words, if they didn’t know or “believe” that harassment was taking place, companies fool themselves into believing they are not legally liable for any damage that may have occurred to an employee’s career. But, deniability doesn’t automatically hold up under the law.

A company is legally responsible for preventing and stopping harassment from occurring. If you believe you are the victim of harassment (including retaliation and experiencing a hostile work environment), you should document everything that is occurring. You must show proof as to why your company must take action.

What can your employer do (or should be doing) to your harasser? Here are some options offered by EEOC regarding harassment in the workplace:

-- oral or writing warnings/reprimands
-- transfer or reassignment
-- demotion
-- salary cut
-- suspension
-- termination
-- training or counseling of harasser
-- monitoring the harasser to ensure that harassment stops
Source: www.eeoc.gov/policy/docs/harassmetn.html

As you can see there are light and hard-hitting remedies available. It’s your job to know that these options are available to deal with harassment and to suggest some stringent form of punishment is doled out to your abuser. But, you have to prove your case or your company will sleepwalk through your entire ordeal. Document mistreatment, provide the names of witnesses who can verify your accounts and save harassing email and voicemail as proof that your abuser has gone overboard. Then, demand action is taken.

NOTE: Your employer cannot force you to transfer to another department to avoid your harasser. But, you can volunteer to move to another department if it is in the best interest of your career and/or mental health.

More on Mediation

One of the strongest defenses an employer can use is to state and then prove that it undertook reasonable care to prevent and promptly correct harassment in the workplace. In order to do this an employer is required to establish, disseminate, and enforce an anti-harassment policy and complaint procedure and to take other reasonable steps to prevent and correct harassment.

As stated previously on this blog, simply having anti-harassment or other written policies is not good enough because there are no "safe harbors" for employers based on the written content of policies and procedures. Written policies only hold weight if the employer has implemented those policies effectively (e.g., by conducting a fair, thorough, and impartial investigation).

Just as written policies are not enough, an employer offering a complaining employee mediation/arbitration is also insufficient for an employer to prove that it exercised reasonable care. Let me write that again: A union grievance and arbitration system does not fulfill the obligation of exercising reasonable care.

Decision making under such a system addresses the collective interests of bargaining unit members, while decision making under an internal harassment complaint process should focus on the individual employee's rights under the employer's anti-harassment policy.

Again, an arbitration, mediation, or other alternative dispute resolution process does not fulfill the employer's duty of due care. The employer cannot dismiss its responsibility to investigate complaints of harassment and undertake corrective measures by providing employees with a dispute resolution process.

Source: http://www.eeoc.gov/policy/docs/harassment.html#VC

The No FEAR Act of 2002

The Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (also known as the No FEAR Act) was signed by President George W. Bush on May 15, 2002. The No FEAR Act requires that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws and requires that each Federal agency post on its web site certain statistical data relating to Federal sector equal employment opportunity complaints filed against the agency.

The Findings of the 107th Congress under the No FEAR Act included the determinations that Federal agencies cannot be run effectively if those agencies practice or tolerate discrimination and that Congressional testimony from individuals, including representatives of the National Association for the Advancement of Colored People and the American Federation of Government Employees, pointed to chronic problems of discrimination and retaliation against Federal employees.

Federal agencies have specific obligations under the No FEAR Act, including:

--An agency must provide annual notice to its employees, former employees, and applicants for Federal employment concerning the rights and remedies applicable to them under the employment discrimination and whistleblower protection laws;

--At least every two years, an agency must provide training to its employees, including managers, regarding the rights and remedies available under the employment discrimination and whistleblower protection laws; and

--An agency must submit to Congress, EEOC, the Department of Justice, and OPM, an annual report setting forth information about the agency's efforts to improve compliance with the employment discrimination and whistleblower protection laws and detailing the status of complaints brought against the agency under these laws.

For the full text of the NO FEAR Act, you can visit the Government Printing Office web site link at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ174.107.pdf

For more general information about the NO FEAR Act, take a look at the EEOC’s No Fear Act Question and Answer Sheet at http://www.eeoc.gov/stats/nofear/qanda.html.

To see No Fear Data on Federal Agency web sites, take a look at the EEOC web page: http://www.eeoc.gov/stats/nofear/nofear_urls.html for links to many agencies.

You Better Think...

Aretha Franklin was right, when she sang, “You better think…”

When it comes to dealing with racism in the workplace, those 3 words should be at the forefront of every victim’s mind, except when you are combatting racism, you better think about what you're trying to accomplish (revealing racist words or actions, convincing members of authority to investigate a serious race-based issue, etc.).

Some racists in the workplace just come up with spur-of-the moment nonsense to say and do to Black coworkers. Other racists spend time proactively thinking of ways to target the Blacks they work with. For instance, they might spend time trying to figure out how to stop a Black coworker from getting a raise or promotion. Or, they might think of ways to prevent a Black coworker from getting a high profile assignment. Or, they might think of ways to sabotage a Black coworker who’s working on an assignment with them. Or, they could be contemplating ways to slander a Black coworker to other coworkers in the department or across the company, as a whole. I’ve seen all of those scenarios played out during my years of employment.

Regardless of whether or not a race-related incident at work was thought up on the spot or was premeditated, the fact is that Black workers have got to put some serious thought into how they will respond. Black workers must be very strategic about handling these sensitive issues.

So, whether you’ve been called an offensive name or have had someone work at every turn to prevent you from receiving advancement opportunities, Black workers must think about not only how they will respond, but to whom, and in what venue (face-to-face, via memo, etc.).

When Black workers complain about race-based issues, one of the common tactics that is used by authorities at work is to not focus on what the Black worker is saying, but on how they’ve said it/how they’ve voiced the complaint. It often doesn’t matter if the complaint is made in person or in writing. A White person, who is determined to marginalize or ignore a race-based incident, can find ways to make the Black person appear to be part of the problem, appear to be exaggerating, appear to be misunderstanding the situation, etc.

So, for today, here are 3 things to think about when making race-based complaints in person or in writing:

1) Think about the timing—don’t wait too long to complain. If you wait too long to voice a complaint about a serious race-based issue, don’t be surprised if the seriousness of the problem isn’t brought into question. Why did you wait? Even though we all know that workers fear retaliation for complaining (especially about race-related matters) and fear that they will be perceived as a troublemaker or race-baiter, people will often question why someone has hesitated to make a complaint about a very serious matter. Legally, fear of retaliation is considered reasonable, particularly if a worker has witnessed or heard of other complaining employees being subjected to retaliatory actions by an employer. In fact, you are not legally obligated to complain. However, there is an expectation that workers will complain about mistreatment. So, again, while it is understandable that you might hesitate, be sure to complain about your issue as soon as possible.

2) Think about explaining the specifics—don’t just burst into someone’s office saying that so-and-so is a racist. While, that may be true, you should always work to give context to any such claims of racism. Give specific examples of racist behavior. And, think about what you are labeling as racist activity. Make sure you are not dealing with personality issues. If you are dealing with a person, who treats everyone in the same horrible fashion and treats everyone EQUALLY as bad (not focusing more extreme attention on Blacks), then deal with the issue of an insensitive and bullying coworker as opposed to racism. If, in fact, you are sure you are combating workplace racism, then that’s what you should address. Think about your issue and be specific about what is happening and what is wrong. Give details, so that it is hard to dispute your point of view.

3) Think about the impact—describe how your work and work environment is being impacted by any racist words or actions. For instance, race-based slander or stereotyping may be causing conflict with work relationships that had previously been very positive. Discrimination with promotions is stifling your ability to advance, is stifling your pay, and is harming your career path with your employer. Speak about the harm being caused on a professional and personal level, so that it is difficult to marginalize your complaint and experiences.

I’ll be providing more tips in tomorrow’s post.

The Affirmative Defense

If you file a charge against your employer alleging some form of race discrimination (violations of the Federal statutes of The Civil Rights Act), your employer will have to determine how to respond to the allegations. Whether you have filed a complaint with an organization such as the Equal Employment Opportunity Commission (EEOC) or you have sought the assistance of an attorney, your employer isn’t very likely to instantly assume full responsibility for any infractions of Federal statutes.

One option your employer has is to file an affirmative defense. With an affirmative defense, your employer won’t have to deny any charges that have been brought. However, the employer will be able to raise extenuating or mitigating circumstances in order to avoid responsibility in a civil case.

An example of an affirmative defense would be an employer arguing that it exercised reasonable care to prevent and promptly correct harassment. Reasonable care generally requires an employer to establish, disseminate, and enforce an anti-harassment policy and complaint procedure and to take other reasonable steps to prevent and correct harassment.

Despite the attempt to rely on having written policies in place, it’s important to remember that there are no "safe harbors" for employers based on the written content of policies and procedures. However, this doesn’t stop an employer from using this argument in their defense. And, it doesn’t stop the complaining employee from proving that the employer did not take steps—or took inadequate or delayed steps—in preventing and/or correcting harassment.

Another example of the affirmative defense would be an employer arguing that a complaining employee did not take the reasonable and necessary steps to avoid harm from race-based harassment, retaliation, etc. by not reporting the abuse to management or taking advantage of any preventive or corrective opportunities.

An employer who can prove they exercised reasonable care may not be liable for unlawful harassment if the complaining employee could have avoided all of the actionable harm. If some but not all of the harm could have been avoided, then an award of damages will be reduced accordingly. The complaining employee doesn’t have to prove they showed reasonable care…that burden falls on the employer. The employer must show that the employee’s failure to complain of abuse was unreasonable.

Keep in mind, even if an employee doesn’t complain the Federal statute recognizes that there may be legitimate reasons for silence on the issue. For instance, if an employee has seen other complaining employees subjected to retaliatory actions (e.g., fired, demoted, subjected to a hostile work environment, etc.), the employee would reasonably fear making a complaint. Additionally, if illegal abuse is so prevalent in the workplace that many people knew about it, the company would be liable for not addressing the problem because the abuse was so widely known that it is reasonable to expect that someone in authority knew of the problem.

Finally, if an employer files an affirmative defense, the employer must prove the validity of the defense. The employer can’t just state an affirmative defense and hope someone buys it. They must prove this defense.

Source: www.eeoc.gov

Employers Should Look for Patterns of Improper Behavior in the Workplace

Establishing patterns of prior bad acts in the workplace can help an employee demonstrate that their employer had indications that a coworker, supervisor, etc. had a history of engaging in illegal misconduct, but did nothing to prevent such behavior from happening—again. Establishing patterns of prior bad acts can also demonstrate that an employer not only ignored a problem employee or manager, but that they also may have never even attempted to correct the behavior. For instance, the harasser was never put on any warnings, placed on probation, sent to training, demoted, transferred, suspended, etc.

But, establishing patterns of negative behavior is not just the responsibility of the victim of harassment, retaliation, etc. The employer is also obligated to examine the pattern behavior of employees. When it comes to patterns of negative behavior, the EEOC says:

“Reasonable preventive measures include screening applicants for supervisory jobs to see if any have a record of engaging in harassment. If so, it may be necessary for the employer to reject a candidate on that basis or to take additional steps to prevent harassment by that individual…it is advisable for an employer to keep records of all complaints of harassment. Without such records, the employer could be unaware of a pattern of harassment by the same individual. Such a pattern would be relevant to credibility assessments and disciplinary measures.”

This all goes to show how important it is to look for prior bad acts by a harasser. But, at the same time, it shows how important it is to notify your employer/make a formal complaint of harassment, if you believe you are being subjected to a hostile and offensive work environment.

Think of it this way…if you suffer in silence, you embolden your enemies—as our President, George W. Bush, is fond of saying.

By filing a complaint against your harasser, you help to create a history of your harasser behaving in an illegal manner. If your harasser has already been on the receiving end of harassment complaints, their record of this illegal behavior will be extended to the present—as opposed to possibly years ago.

Just the fact that you made a complaint can go a long way towards helping another employee, who may find that they have the same problem with this same employee—in the future. It’s up to each of us to hold racist employees, harassers, etc. to account.

Still, even without complaints, employers are responsible for any illegal behavior that was so prevalent that members of authority/management had to have known the illegal abuse was happening!

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.