Unequal Pay/Stifled Career Paths

When it comes to race-based discrimination in the workplace, it is not uncommon to find that unequal pay is a concern among Black workers. Far too many workplaces have filled their ranks with Black workers who’ve been relegated to the lower paying jobs and job classifications. It’s not uncommon to find Black workers making up a large chunk of an administrative pool or performing other work that can result in stifled salaries.

If the discrimination extends to unequal evaluation, promotion opportunities may be non-existent for some Black workers. Some of us will work at jobs where the topic of promotions may never be brought up.

In fact, it reminds me of something a former employer’s so-called outside investigator said to a coworker that was complaining about discrimination at work. The investigator told my coworker that part of the reason she was having problems at work was because she was pushing for her staff (all Black and administrative) to move up within their career paths and that she just didn’t seem to understand that some people are perfectly happy to remain the same job (and salary) for 20 years. She was told she had no right to encourage her staff to think about or to seek promotions. She was supposedly forcing her will upon them by encouraging them to move up in the company.

That’s just how it is in some places. It is considered the norm for Black workers to be in lower paying jobs and to get the same piss-poor salary increase every year—regardless of how well they’ve been doing their jobs.

Black workers may find their salaries stifled, while they watch their White coworkers get higher yearly pay raises, title changes, and even promotions. It often doesn’t matter if the workers have essentially the same background or if the Black worker has superior education and/or on the job-experience/expertise in the field. Black workers may still find that they can’t seem to keep up with the pay level of White counterparts.

My former boss, Black, worked as the compensation manager in HR at a bank. He had more than 10 years of experience in this job. He had advanced degrees. You name it. At the time I left the company, he was making about $75,000 per year.

I spoke to him, months after I resigned, and he told me, “You know they brought in this little White boy to take over my position. The kid just got out of college, got his B.A. and then his Masters and they’re starting him at $95,000 to do my job.” He complained that this White guy was going to be getting 20 grand more than him with no experience and with degrees that didn’t have anything to do with banking/finance, etc. Everything in the kids resume was non-job-related to our field and to the position.

At this same job, we also had a White, young receptionist that was working with us in what was only her first or second job. She was making about $25,000 per year. When the White office manager resigned, she was moved into that job and started making $55,000 per year. She worked with us for less than a year and never did any of the work that the office manager was responsible for. Yet, she saw a $30,000 per year increase to her salary.

I worked at another job where a White, young, female senior staffer seemed to receive a promotion every 6-8 months. In the blink of an eye, she was running the entire department. She was about 26-28 years old at the time she became the Director of Conference Services. She’d never had managerial experience over a large staff and was working in a job that you’d normally find people with 15 years or more of experience.

Pay inequity based on race and racial preference (race discrimination) is not uncommon. Some jobs run an entitlement program for White workers, while they stifle the Black portion of the workforce.

As we look for ways to combat discrimination in the workplace, we should look at all applicable statutes and resources, such as, the Equal Pay Act of 1963, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).

Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability. The Equal Pay Act prohibits compensation discrimination based on gender.

Unlike the Equal Pay Act (EPA), there is no requirement under Title VII, the ADEA, or the ADA that the claimant's job be substantially equal to that of a higher paid person outside the claimant's protected class, nor do these statutes require the claimant to work in the same establishment as a comparator.

Compensation discrimination under Title VII, the ADEA, or the ADA can occur in a variety of forms. For example:

--A discriminatory compensation system has been discontinued but still has lingering discriminatory effects on present salaries. For example, if an employer has a compensation policy or practice that pays Blacks lower salaries than other employees, the employer must not only adopt a new non-discriminatory compensation policy, it also must affirmatively eradicate salary disparities that began prior to the adoption of the new policy and make the victims whole.

--An employer sets the compensation for jobs predominately held by, for example, women or African-Americans below that suggested by the employer's job evaluation study, while the pay for jobs predominately held by men or whites is consistent with the level suggested by the job evaluation study.

Pay differentials are permitted when they are based on seniority, merit, quantity or quality of production, or a factor other than sex or race. These are known as "affirmative defenses" and it is the employer's burden to prove that they apply.

In correcting a pay differential, no employee's pay may be reduced. Instead, the pay of the lower paid employee(s) must be increased.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on compensation or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII, ADEA, ADA or the Equal Pay Act.

Source: http://www.eeoc.gov/types/epa.html

A Reader's Open Letter to the EEOC

A reader sent me a copy of this open letter to the EEOC. I found it to be very powerful. Considering that I am still waiting for the findings of an active investigation against my former employer, I can relate to what is written. What about you? Let us know what you’re feeling. Post a comment!

TO: OPEN LETTER TO THE US EEOC
FROM: A VICTIM OF RACIAL ANIMUS IN THE WORKPLACE
SUBJECT: DEHUMANIZING ASPECTS OF RACIAL DISCRIMINATION

Dear Sirs and Mesdames:

I will try to be brief but please take the time to read this letter because I wish to convey the feelings that so many live with due to racial animus, profiling and discrimination in the working environment. I have not signed my name because I have an open complaint with your office and I don’t wish to create a bias for or against the outcome. Instead, this is just an honest view of the feelings of hopelessness I’ve experienced since being wrongly accused and targeted because of my race.

I have always been an exemplary employee, yet I have been lied on, falsely accused of improprieties, falsely accused of fighting in the workplace, of being rude and physically intimidating, and suddenly characterized by the stereotypes that are so often used in the media, etc. to depict Black women. The accusations made no sense on their face and the manager and the human resource representative only had to look past the nose on their respective faces to realize this. The new manager was aware of my prior protected activity and made comments to that effect. 30 days later my position was inexplicably terminated. The reasons given were “You roll your eyes at everyone, a sudden lack of work, behavior issues, and performance issues that occurred several and many years ago.”

As stated previously, I have always been an exemplary employee; I never received a negative performance evaluation, I was always lauded as being a great communicator with the ability to foster teamwork and maintain a team-oriented environment. Yet, less than one week into the tenure of a new department manager, I received a negative performance evaluation of “Poor,” was informed that I was confused about who I was, labeled as having communication problems, being antagonistic, hostile, offensive, angry, rude, unprofessional and told that I physically harass and intimidate everyone. I was accused by a coworker and judged guilty without investigation or explanation. The fact that two white women confirmed the false accusations sealed my fate. A defamatory memo was placed in my personnel file to prevent me from transferring out of the department and shortly thereafter I was terminated. This manager allowed coworkers to read the defamatory memo that was placed in my personnel file in case they wanted anything added. So much for reprimanding an employee in a confidential manner.

Coworkers accused me of being rude and hating my job because I refused to “look the other way” each time they attempted to ignore the Federal Travel Regulations, specifically those related to hotel and meal per diem rates, and receipts for taxi services. One employee would request a travel advance in excess of $500, utilize her personal and inexpensive time share type package for company-related business, and then argue about having to reimburse the contract for the additional monies she received for hotel expenses. According to her this was free money, everybody did it, and since I was Black I should know all about cheating the government. I explained this to the new manager and was told that if I wanted to stay employed I was to ignore the Federal Travel Regulations and never question anything that an employee submitted regarding reimbursement of travel costs. I was to submit each employee’s expense report for reimbursement without question, I was not to verify or confirm the expenses.

I am angry, frustrated, hurt, offended, humiliated, and confused. I have bouts of shame yet I have done absolutely nothing wrong. Although normally I am very calm, lately I have mood swings and can’t seem to muster the energy to leave the house. I’m sad, anxious and depressed. I know right now I would benefit from speaking with a mental health professional. But due to the loss of employment, I no longer have health insurance. Besides the loss of income that is associated with job loss, health insurance benefits, sick and vacation leave, pension plan and other company benefits are lost. And, the time and years spent earning an exemplary employment record are also lost.

Employment discrimination continues to exist because employers have become wise in how to effectively discriminate without appearing to do so. This can be accomplished via job classification, i.e., inexplicably a large number of minorities are categorized as administrative support. Using stereotypes, character assassination, personality attacks and lies doesn’t require a lot of written documentation, instead these things travel by word of mouth. Accusing someone of being a poor communicator or having communication issues or being unprofessional can be just as detrimental to an employee’s career, serves the same purpose in denying him/her employment opportunities and on its face, is not illegal.

This is exactly what occurred in my case and I would bet in numerous cases across the country. Employers have learned how to discriminate without admitting to doing so because the employer controls the work environment: institutes the policies and procedures, manages the recordkeeping and the personnel files. Although I believe I write clearly, at times when I speak about my ill treatment my emotions are raw, unmanaged and in the forefront. That’s when I worry about my ability to communicate just how much this has impacted my life in such a negative and wrongful manner. And, I am always concerned about other victims of discrimination who may not be articulate or composed enough to convey the harassing work environment that was suddenly or gradually thrust upon them.

In my case, the former employer instituted a lay-off that disproportionately penalized members of a protected class and claimed extenuating circumstances in order to avoid culpability. Performance problems were fabricated in order to show documentation of performance issues, company policies were ignored and although the company had a policy established for progressive discipline and corrective actions, I received severe discipline and the only corrective action came in the form of the company terminating me.

I would like to know why any person in a managerial position feels they have the right to deny me a promotion, advancement opportunities, mentoring, a salary upgrade, etc. merely because I am Black? Yet, the rogue managers in my situation have done exactly that and have bragged about doing so. One manager informed me that she ran the department and did not give a damn about rules, regulations or the EEOC. With this type of authoritative figure what hope does the average employee have? Because I am trying to maintain professionalism in this letter, I will refer to the managers in my case as people, but other, more euphemistic terms certainly come to mind.

This manager conveyed her shock that I was “so articulate,” but in the next breath said “look at me and look at you, who’s going to believe you? She also informed me that I was not a good employee and would be terminated because she did not want to offend the sensibilities of the organization because I was the “typical Black girl . . . you know you uh roll eyes and suck your teeth uh, oh and you smack your lips and chew gum loudly, you know like other Black girls.”Aside from the fact that I am a grown woman, mother and grandmother and therefore not a “girl,” I don’t chew gum, loudly or otherwise. Nor do I smack my lips, roll my eyes or suck my teeth in everyday conversation, so why pray tell would I behave this way in the workplace? Yet these offenses were put in writing and placed in my personnel file.

I once read an excerpt called “Cages,” which seemed to serve as a metaphor for racial discrimination. For me, the confines of the bird cage sum up the confines of a workplace that is fraught with racial hostility. Who or where do you turn when you are treated unfairly because you are a member of a protected group? Because of an employee’s divergent culture, he/she is subjected to ridicule, harassment, retaliation, humiliation, isolation. Management resents you raising the issue and suddenly your significance and plausibility is in question. Coworkers who are aware of your mistreatment close their eyes and their ears, not realizing that what negatively impacts me today, may negatively impact them tomorrow. Far too often managers bring their biases and prejudices to work, the siblings of racial discrimination into the office. Employment discrimination is offensive, it is insulting, it is meant to categorize, to separate, to exclude. Discrimination makes it too easy for others to take symbolisms, words, and/or beliefs and make them conform to the biases of those in positions of power to discriminate. It is designed to make us all uncomfortable with each other.

There are far too many victims of employment discrimination and far, far too many stories that need to be told. In spite of my trials and tribulations, and the tears that never seem to stop falling, I have never and will never ask “Why me?” or “Why did this happen to me?”

The prevailing question for me has always and will always be “Why anyone?”

Selah,

A VICTIM OF RACIAL ANIMUS IN THE WORKPLACE

LEGAL BRIEFS: Walgreens Agrees to $20 Million Settlement

In July 2007, the EEOC announced a $20 million proposed consent decree resolving a systemic race discrimination lawsuit against Walgreens, the Illinois-based national drug store chain.

The proposed settlement was filed with U.S. District Judge G. Patrick Murphy of the Southern District of Illinois, with a request for his preliminary approval (EEOC v. Walgreen Co., S.D. Il. 07-CV-172-GPM and Tucker v. Walgreen Co., S.D. Il. 05-CV-440-GPM).

The EEOC’s suit alleged that Walgreens discriminated against African American retail management and pharmacy employees in promotion, compensation and assignment. In addition to the monetary relief for an estimated 10,000 class members, the consent decree prohibits store assignments based on race. The decree is subject to final approval by Judge Murphy following a fairness hearing.

“We commend Walgreens for working cooperatively with us to reach an amicable settlement of this case without protracted litigation,” EEOC Chair Naomi C. Earp said. “We believe this is a satisfactory resolution for all parties.”

Walgreens’ CEO, Jeffrey A. Rein, said, “We are pleased to reach a resolution that is consistent with our past and future diversity and equal opportunity objectives. Our company was built on principles of fairness and equality, and we do not tolerate discrimination in any aspect of employment including store assignment, compensation and promotion opportunities. In fact, we’re a drugstore industry leader when it comes to the employment and promotion of African American managers and pharmacists.”

Private plaintiffs’ counsel, Tiffany B. Klosener of Foland, Wickens, Eisfelder, Roper & Hofer, said, “Walgreens is a rapidly growing company with lots of opportunity for its employees. We look forward to working with Walgreens to promote fair and equal employment opportunities for all employees.”

Source: http://www.eeoc.gov/press/7-12-07.html

The Federal Rules of Civil Procedure 23

The Federal Rules of Civil Procedure (FRCP) 23 are the rules that govern civil cases in U.S. District Courts (Federal courts). As I mentioned in a recent post, this would include civil cases filed against an employer in a class action lawsuit or with a sole complainant.

Even though federal courts are required to apply the laws of the states as rules of decision in cases where state law is in question, the federal courts almost always use the FRCP as their rules of procedure.

The FRCP contains a list of the prerequisites for filing a class action complaint. For instance, the FRCP states:

One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder* of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

In other words, one or two employees filing suit against an employer can do so on behalf of all of the participants in the suit because:

1) There are a large number of participants that make individual suits impractical;
2) There are similar legal issues and facts among the participants;
3) The arguments/defenses of the representatives are similar/typical of the participants in the class action suit; and
4) The representatives will look out for the best interests of everyone involved in the class action suit in a fair and equitable manner.

The FRCP contains 86 rules, which are grouped into 13 chapters. These chapters include:

I. Scope of Rules--One Form of Action

II. Commencement of Action; Service of Process, Pleadings, Motions, and Orders

III. Pleadings and Motions

IV. Parties

V. Depositions and Discovery

VI. Trials

VII. Judgment

VIII. Provisional and Final Remedies

IX. Special Proceedings

X. District Courts and Clerks

XI. General Provisions

XII. Appendix of Forms

XIII. Supplemental Rules for Certain Admiralty and Maritime Claims

If you’re trying to find specific information about the rules governing civil lawsuits, the Cornell Law School web site contains the rules for each chapter of the FRCP. The link is: http://www.law.cornell.edu/rules/frcp/

There is also a permanent link to the FRCP in the Links section of this blog.

· Joinder is a legal term which refers to the inclusion of additional counts or additional defendants on an indictment.

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.

Education Requirements

One of the easiest ways to keep certain workers in their so-called places is to use education as a qualifier for certain positions—whether or not an advanced degree has anything to do with a person’s ability to perform a job and to be successful. Just look in the classified ads section of the newspaper or perform a job search on a site like Monster.com. Isn’t it amazing how many administrative assistant positions or other low-level or entry level jobs now require a Bachelor’s degree, when for decades they often did not?

In the past, Black workers primarily represented the laborers or we represented the administrative staff at many companies. Historically, many Blacks and other minorities have been denied promotions or have been told we could not transfer into other jobs because we lacked a college degree. Despite this, some Blacks have been able to rise to the level of mid-level management. But, fewer have been able to actually rise to the high-level or executive branches at their companies.

In order to keep the workplace haves as the haves and the have-nots as the have-nots, some supervisors, managers or companies—as a whole—have played the education card to their full advantage. Using education as a justification for refusing to hire, promote, transfer, etc. certain employees is a pretty good bet for a racist supervisor, manager or a company—as a whole—to wager. How many applicants or employees are actually going to officially or legally challenge a workplace claim that they are unqualified for a job because they lack a college degree or an advanced degree?

Furthermore, how many applicants or employees will challenge a claim that they do not have the “right” degree? Yes, there are people who aren’t promoted or hired because they don’t have a Master’s degree…“only” a Bachelor’s. That’s the new workplace game. It involves pushing the education envelope to the point that a Bachelor’s degree is now the basic equivalent of a G.E.D. A Master’s degree is the new Bachelor’s degree (and the minimum required to stay competitive at an ever increasing number of companies). The Ph.D. is the real prize these days. Again, how many workers are going to challenge an employer’s claim that they must have a Master’s degree in order to be promoted or hired for a certain job?

As I’ve written before, I believe the reason for the shift had to do with the fact that more and more Blacks (and Hispanic/Latinos) began to receive college degrees. So, over the years, the ability to stifle certain employees based on education requirements became less effective. And, as a result of increased education by many more minorities, competition during the hiring and promotion process began to become a bit more vigorous. It became tougher to justify why minorities weren’t being placed in certain jobs. The education excuse was watered down to a certain degree. But, that hasn’t stopped some employers from trying, hence the shift in the types of desired degrees for applicants and employees.

Now, I would never argue that employers shouldn’t want the most educated employees they can find. But, the fact of the matter is, many jobs don’t require a college degree. And, anyone who’s spent any amount of time in the workplace can tell you that some of the worst employees have the best education. Receiving a degree (pick a subject) doesn’t give you common sense, doesn’t mean you can work well in teams or lead a team, doesn’t mean you can communicate well (verbally or in writing), doesn't mean you won't violate employment law, and it doesn’t mean you are strategic, forward thinking, a quick learner, etc.

Having a degree doesn’t even mean that you’re extremely knowledgeable in your field—if you were a poor to mediocre student, cheated your way through college or are working outside your area of study. But, as I’ve stated, almost every job these days—no matter how menial or entry level—is requiring a college education. As I was reading up on race and color under Title VII of the Civil Rights Act, I came across this:

Educational requirements obviously may be important for certain jobs. For example, graduation from medical school is required to practice medicine. However, employers often impose educational requirements out of their own sense of desirable qualifications. Such requirements may run afoul of Title VII if they have a disparate impact and exceed what is needed to perform the job.

As the Supreme Court stated in one of its earliest interpretations of Title VII: “History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the commonsense proposition that they are not to become masters of reality.”

And, that's where I stand on the issue. Diplomas shouldn't dictate reality or a person's opportunities in the workplace--not without a LEGITIMATE reason. If your supervisor, manager or other authority at your job is seeking to block your desired career path, deny you a promotion, etc. based on education requirements, please keep in mind that those requirements can be challenged! Two questions you can ask about education requirements are:

1. Is the requirement for a degree out of a business necessity? A business necessity is a practice necessary for safe and efficient organizational operation. For example, an employer can require that an employee have a high school diploma, but that employer must also be able to prove that this is essential to performing the job. Is there some essential element related to a degree that legitimately prevents you from being hired for a specific job, being promoted, being transferred, etc.?

2. Is the requirement for a degree based on job-related factors? Job-relatedness deals with the skills or other qualities that employers say are a requirement for a job. For instance, an employer can legitimately argue that applicants pass a math test in order to get a job working as a cashier because math skills are a job-related necessity for succeeding in that position. Based on the job you are applying for, seeking a promotion for, requesting a transfer to, etc…is their a job-related reason for requiring a degree? Is there a skill gained or other quality only obtained through earning a degree in a specific field (vs. actual experience, for example)? Would the lack of degree automatically prevent you from doing this specific job?

More on Race and Color Discrimination

All Black workers should be aware of the Federal statutes that currently exist because the statutes are designed to correct the historic disadvantanges and racially-based attacks that Blacks have always been subjected to in the workplace, in our communities, etc. Continuing the theme of the previous post, below is a summation of prohibited actions associated with race and color, under Title VII of the Civil Rights Act:

-- Title VII prohibits the denial of equal employment opportunity because of the place of origin of an individual or his or her ancestors, or because an individual has the physical, cultural, or linguistic characteristics of a national origin group;

-- Title VII prohibits discrimination not just because of one protected trait (e.g., race), but also because of the intersection of two or more protected bases (e.g., race and sex). For example, Title VII prohibits discrimination against African American women even if the employer does not discriminate against White women or African American men;

-- Title VII is violated if race was all or part of the motivation for an employment decision. Racially biased decision-making and treatment are not always conscious. Therefore, Title VII covers not only decisions driven by racial animosity, but also decisions infected by stereotyped thinking or other forms of less conscious bias;

-- Title VII also does not permit racially motivated decisions driven by business concerns. For example, concerns about the effect on employee relations, or the negative reaction of clients or customers. Nor may race or color ever be a bona fide occupational qualification under Title VII. (See the archives for a previous post on bona fide occupational qualifications);

-- Title VII forbids not only recruitment practices that purposefully discriminate on the basis of race but also practices that disproportionately limit employment opportunities based on race and are not related to job requirements or business needs. For example, recruiting from racially segregated sources, such as certain neighborhoods, schools, religious institutions, and social networks, leads to hiring that simply replicates societal patterns of racial segregation;

-- Under Title VII, employers cannot treat persons of different races differently in the hiring or promotion process. Nor may employers use selection criteria that have a significant discriminatory effect without being able to prove that the criteria are job-related and consistent with business necessity;

-- Under Title VII, employers must apply the same selection criteria to persons of different races, and apply them in the same way, giving the same weight to each criterion for each person. The reasons given for selection decisions should be credible and supported by the evidence; and

-- Under Title VII, it is unlawful to disqualify a person of one race for having a conviction or arrest record while not disqualifying a person of another race with a similar record. For example, an employer cannot reject Black applicants who have conviction records when it does not reject similarly situated White applicants.

I will continue to provide a summary of prohibited actions under Title VII throughout the week (for race and color discrimination).


Source: http://www.eeoc.gov/policy/docs/race-color.html#N_136_

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.

Disparate Impact

Disparate impact occurs when members of a protected class are substantially underrepresented as a result of employment decisions that work to their disadvantage.

Even where an employer is not motivated by discriminatory intent, Title VII of the Civil Rights Act prohibits an employer from using a seemingly neutral employment practice that has an unjustified adverse impact on members of a protected class. Practices that have the appearance of being fair may actually be discriminatory in form.

Employees would have to use statistical information to show a negative/disparate impact on a protected class (e.g., Blacks, women, the disabled, etc.). Of course, the employer would probably argue fuzzy math as a defense against the statistical evidence or the employer could cite a business necessity (mentioned in a previous post) for the practice.

If the employer says it has a business necessity that justifies a seemingly discriminatory practice, the employee could argue that there were alternative practices available that would not have disenfranchised the protected class of employees, but was not used by the employer.

Examples of practices that may be subject to a disparate impact challenge include written tests, height and weight requirements, educational requirements, and subjective procedures, such as interviews.

Source: http://www.hr-guide.com/data/G702.htm

Bona Fide Occupation Qualification (BFOQ)

A bona fide occupation qualification (BFOQ) is a quality or an attribute that employers are allowed to consider when making decisions on the hiring and retention of employees–qualities that, when considered, in other contexts would be considered discriminatory and thus violating civil rights employment law. In other words, a BFOQ can be the justification an employer provides after being accused of discrimination.

An example of a BFOQ is that Chinese restaurants can argue they have a legitimate reason for hiring only Asians to work in their restaurants. Other examples can be found in the mandatory retirement ages for bus drivers and airline pilots, which are required for safety reasons.

It is important to know this term because you may come across it, after confronting an employer about a potentially discriminatory practice. If your employer does claim that it is not discriminating against you because there is a BFOQ related to your job, you can question that defense because it is the employer’s responsibility to prove BFOQs are "reasonably necessary" and that there is no reasonable alternative with a lesser impact on the protected classes (e.g., minorities, women, the disabled, etc.).

Source: en.wikipedia.org/wiki/Bona_fide_occupational_requirement

Intentional Discrimination and Disparate Treatment

According to the Department of Justice (DOJ), Civil Rights Division, a claim of intentional discrimination is one that alleges that similarly situated persons (e.g., coworkers in the same department, employees working under the same supervisor, employees—as a whole, etc.) are treated differently because of their race, color, or national origin. FYI: This information was written in relation to grant applications, but it is very appropriate in explaining discrimination anywhere--such as the workplace.

In order to prove intentional discrimination, an employee must show that "a challenged action was motivated by an intent to discriminate." Elston, supra, 997 F.2d at 1406. This requires a showing that the decision-maker (e.g., supervisor, manager, executive, etc.) was not only aware of the complainant's race, color, or national origin, but that the decion-maker acted, at least in part, because of the complainant's race, color, or national origin. However, the record need not contain evidence of "bad faith, ill will or any evil motive on the part of the [employer]." Elston, 997 F.2d at 1406 (quoting Williams v. City of Dothan, Alabama, 745 F.2d 1406, 1414 (11th Cir. 1984)).

Evidence of discriminatory intent may be direct [e.g., “You’re not getting this job because we don’t promote ni**ers here!”] or circumstantial [e.g., false allegations are used to deny a Black employee a promotion] and may be found in various sources, including statements by decision-makers [e.g., oral and written], the historical background of the events in issue [past patterns on executing similar actions, work history, etc.], the sequence of events leading to the decision in issue [How did everything happen?], a departure from standard procedure (e.g., failure to consider factors normally considered), legislative or administrative history (e.g., minutes of meetings), a past history of discriminatory or segregated conduct [as described in yesterday’s post on checking into prior bad acts], and evidence of a substantial disparate impact on a protected group [a significant change in the status of your employment, impact on your career or work environment, etc.]. See Arlington Heights v. Metro. Housing Redevelopment Corp., 429 U.S. 252 at 266-68 (1977) (evaluation of intentional discrimination claim under the Fourteenth Amendment); Elston, supra, 997 F.2d at 1406.

Direct proof of discriminatory motive is often unavailable. However, if the record contains sufficient evidence to establish a case of discrimination, the investigating agency must then determine if the employer can articulate a legitimate, nondiscriminatory reason for the challenged action. [Many employers can offer a pretext to hide their true discriminatory motives. This usually involves making false allegations against the complaining employee, creating manufactured/fabricated documentation against an employee, providing false eye witness statements of events, etc.]

Similar principles may be used to analyze claims that an employer has engaged in a "pattern or practice" of unlawful discrimination. Such claims may be proven by a showing of "more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts." See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977). The evidence must establish that a pattern of discrimination based on race, color, or national origin was the employer's "standard operating procedure the regular rather than the unusual practice." Id. Once the existence of such a discriminatory pattern has been proven, it may be presumed that every disadvantaged member of the protected class was a victim of the discriminatory policy, unless the employer can show that its action was not based on its discriminatory policy. Id. at 362.

So, if you’re facing rampant discrimination on your job, go for showing patterns of discriminatory behavior by your employer that shows the history of illegal conduct. Also, document everything and be ready to respond to the pretext/lies offered by your employer to justify any discriminatory actions that have occurred at work. Finally, be sure to point out how similarly situated employees (other coworkers with the same job classification, title, salary, etc.) were treated differently—and more favorably—than you were treated. Be sure to show how those differences impacted your career.

For instance, that you were denied training opportunities or a promotion or that you were severely reprimanded, while others were not. Don't forget that being denied the building blocks for a promotion is just as bad as being denied the promotion itself. So, lack of training opportunities, etc. can help prove discriminatory behavior and disparate treatment.

Source: Department of Justice, http://www.usdoj.gov/crt/grants_statutes/legalman.html#Intentional

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

LEGAL BRIEF: Justice Department Says FDNY Hiring Practices Are Discriminatory!

The Justice Department has authorized the filing of a lawsuit against the city of NY based on the findings of an investigation that showed that the FDNY’s recruitment process discriminates against Blacks and Hispanics.

The FDNY has responded by stating they’ve made major changes in their recruitment techniques in order to attract more minority candidates. The FDNY commissioner, Nicholas Scoppetta said the FDNY isn’t looking for a fight, just a reasonable solution to the problem. Last year, City Hall gave the FDNY $1.4 million to use toward minority recruitment.

A lawsuit will be filed within 30 days, unless some sort of settlement is reached. If a judge is brought in to review the FDNY’s hiring practices, one solution could be to require one minority candidate to be hired for every three non-minority candidates.

Source: The NY Daily News, We'll Deal With Heat-FDNY, By John Marzulli and Jonathan Lemire, Wednesday, April 25, 2007

ISSUES IN THE WORKPLACE: Segregation and Classification

According to the EEOC, Title VII of the Civil Rights Act of 1964 is violated where employees who belong to a protected group are segregated by physically isolating them from other employees or from customer contact. In addition, employers may not assign employees according to race or color.

For example, Title VII prohibits assigning primarily African-Americans to predominantly African-American establishments or geographic areas. It is also illegal to exclude members of one group from particular positions or to group or categorize employees or jobs so that certain jobs are generally held by members of a certain protected group. Coding applications/resumes to designate an applicant's race, by either an employer or employment agency, constitutes evidence of discrimination where people of a certain race or color are excluded from employment or from certain positions.

I’ve previously written about one job I had, where the darker Black employees were assigned seating in the rear of the office. Our conference room was located near the rear of the office and we had specific printers to use (in the back). Unless we were going to an external meeting, to the rest room or were visiting another department—we were out of sight.

At another job, Black workers were routinely excluded from direct client contact. White managers, mid-level staff, and junior staff would normally attend the meetings with our government clients. After all of the strategy sessions were done, Black employees would be invited to participate—on conference calls. It got so bad, that one government contracting officer asked the President and CEO of our company where the Black employees were. She said that she and other contracting officers noticed they were only meeting White employees. She said that the government was using taxpayer funds and she expected diversity. She also said that she wanted to make sure that Black and minority workers were being assigned to work on the tasks—African American and “mainstream” assignments. The contracting officer declared an expectation that minorities not just perform administrative work, but ACTUAL PROJECT WORK.

So, my employer literally held one of her “dog and pony shows.” Except, this time, she was showing off the Black and minority workers. The CEO took these government clients around our office building—only stopping at the offices of Black, Hispanic/Latino, and Asian employees. This was the first time many of us were introduced to our clients. We'd never seen any of these people and our contracts had been going on for years!

Another example of segregation is that some Black employees are segregated to only work on Black projects. I had a coworker, a researcher, who was only assigned to conduct research, when the interviewees were Black. This was the tactic used by a director and a mid-level manager in another department. They refused to assign her to interview Whites, Hispanics, etc.

Another issue, at some companies, is that Black workers end up in the lowest level administrative staff positions and with the lowest salaries. This can represent a segregation and classification issue because it is not inherently plausible that only Blacks are capable of working in the lowest level jobs at a company.

What can you do?

Take a look at the positions at your job. Who is working on what? What are the titles, job levels, and classifications? If you suspect a segregation and classification issue, begin to compile documentation that can support your position. If your company distributes employees lists and other demographic charts, mark them up to reflect the issue you see. Talk to other employees to see if they also notice the issue and view it as a problem. If a group of employees want to address the issue, do so as a group. Speak to someone in HR about the issue. It’s best to go in mass regarding issues like this. But, if you have to fly solo, make sure you have all the facts and can prove your point. Build a circumstantial case that is sound and easy to understand. Gather organizational charts and anything else that will demonstrate a need for investigation and change.

Source: http://www.eeoc.gov/types/race.html

Intersectional Discrimination

Intersectional Discrimination is the discrimination of a person or classification of people because they are a member of two or more protected classes. Equal employment opportunity statutes prohibit this type of discrimination. Intersectional discrimination can involve more than one EEO statute, e.g., discrimination based on age and disability, or based on sex and age, or discrimination based on race and sex, etc.

Intersectional discrimination, harassment, and retaliation were standard operating procedures at my previous job. My employer routinely discriminated against and allowed the race-based harassment of Black, female employees. In fact, my previous employer was found guilty of retaliating against a Black, female manager.

Black women were routinely subjected to race-based name-calling, which was most prominently used during performance evaluation time. It was not uncommon for Black, female employees to receive performance evaluations declaring them to be “snooty,” “mean,” “rude,” “not nice,” “angry,” “defensive,” “pissed off,” and/or “nasty.” These comments were always made by White women. These comments also violated my employer’s performance evaluation guidelines, which stated that personality-based feedback should not be the focus of performance reviews and that reviews should rely on work-related commentary. These personality-based comments (all fraudulent) were used to justify “delineated areas of concern” and were the stated reason why Black, female employees would not be promoted, would receive a poor review and low salary increase, etc. In some cases, Black, female employees were told that they would be promoted “in the next cycle,” if they could show improvement in these alleged areas of concern.

If you believe that, I’ve got a bridge to sell you! And, for the record, it is impossible to believe that EVERY Black, female employee behaves in one manner—unless you are a complete racist!

Intersectional discrimination was so rampant at this job that five Black women resigned employment within 2 months time! Interestingly, all of the resignations took place directly before or after the year-end performance evaluations. The common complaint I heard was being blamed for problems caused by White staff (usually White women) and being labeled as a sudden personality/behavioral problem.

The similar allegations against these five Black women give credibility to claims of discrimination, harassment, and retaliation against this employer because the allegations show the mindset at the job to tolerate and, therefore, to encourage a discriminatory environment.

Here’s a tip for you to use in the workplace: Don’t be an as*hole!! One of the good things about being friendly with other staff (read: not being an a**hole) is that you can find out details from other staff regarding the types of feedback they’re getting from managers and supervisors about their performance, you can get information about their salary (and can compare that to other staff of similar education and experience), and you can find out information about other conditions of their employment.

You can use this shared information to see if there are any patterns or blueprints being used against certain staff. You should document any similarities regarding these patterns of criticism, etc. because they can be used to help prove misconduct, racism, discrimination, etc. in the workplace.

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.