Compensation Discrimination - Part 2

When the EEOC is investigating compensation discrimination, they look at a few things that you can examine yourself.

1) What are similarly situated employees (same job, job classification, job level, etc.) being paid? Can you show that your White counterparts are making more money than you?

2) Can your employer reasonably defend the difference in pay status for similar employees? Is there a legitimate non-race related reason for the pay discrepancy being offered by your employer?

3) What do statistics show? This may be hard for an employee to figure out on their own, unless they have access to pay information. However, an investigator may look at statistics related to pay by going through payroll data at your company.

Statistics allows one to determine whether differences between a protected class target group and a comparison group are "statistically significant," i.e., whether the difference could not be expected to have occurred by chance. This differs from the basic comparison of raw numbers or percentages, which is known as descriptive statistics.

Other things to consider with pay discrimination are that employers have long played the education game to explain pay discrepancies. For instance, a White new hire with a college degree and no experience in the field may make $10,000 or more than a Black worker with no degree, but many years of hands-on expertise in the field. Even though the White worker may not be able to perform their job without training and assistance from the non-degreed Black worker, they may make significantly more money. This may or may not be legitimate depending on the nature of the job and the minimum qualifications required for the position.

In fact, minimum objective qualifications, such as specialized licenses or certifications should and can be taken into account. But, the EEOC says that persons in jobs requiring certain minimum objective qualifications should not be grouped together with persons in jobs that do not require those qualifications, even though the jobs otherwise are similar. In other words, employees in similar jobs can’t necessarily be grouped together or divided based on education, licenses, etc. It all depends on the minimum qualifications for those jobs.

While differences in qualifications, experience, and education ultimately may explain a pay differential, it’s not automatic that these are reasons that fully address salary differences. These factors may just be a pretext or cover story to conceal the true motive for pay discrepancies, race-related discrimination.

You can take a look at the first two areas (what are people making in the same or similar jobs and what are your employer's reasons for salary differences) and then see if you are on to something regarding potential pay discrimination.

If you have identified a potential issue, you can talk to your HR department for a detailed explanation of pay differences or you can speak to your supervisor, manager or the director of your department.

You have a right to know why you are making less money than other employees. If a group of Black employees is making less than White employees, who are doing the same job, then that is a legitimate area of concern that should be addressed.

If you ask questions and become subjected to a hostile work environment for rocking the boat (regarding salary), you can contact an agency like EEOC for assistance or you can seek legal counsel to protect yourself and to resolve the issue.

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

Compensation Discrimination

According to the EEOC: Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) prohibit discrimination in "compensation" based on race, color, religion, sex, national origin, age, disability, or protected activity. The term "compensation" includes any payments made to, or on behalf of, an employee as remuneration for employment. Compensation discrimination in violation of Title VII, the ADEA, or the ADA can exist in a number of forms:

• An employer pays employees inside a protected class less than similarly situated employees outside the protected class, and the employer's explanation (if any) does not satisfactorily account for the differential (e.g., Black workers make less than White workers in the same job/classification without cause);

• An employer maintains a neutral compensation policy or practice that has an adverse impact on employees in a protected class and cannot be justified as job-related and consistent with business necessity (e.g., an employer claims there’s a non-race related job or business need that explains why White staff make more than Black staff and this reason is the cause of pay disparity, according to the employer);

• An employer sets the pay for jobs predominantly held by protected class members below that suggested by the employer's job evaluation study, while the pay for jobs predominantly held by employees outside the protected class is consistent with the level suggested by the job evaluation study (e.g., Black workers are paid below the market rate and maybe below the minimum rate for positions predominately held by Black workers, while an employer properly pays or overcompensates White workers based on the market rates for their jobs);

• A discriminatory compensation system has been discontinued, but salary disparities caused by the system have not been eradicated (e.g., pay disparities have been identified and the compensation system has been fixed, however the pay levels of the discriminated employees have not been properly adjusted to fix the errors identified in the pay system); or

• The compensation of one or more employees in a protected class is artificially depressed because of a discriminatory employer practice that affects compensation, such as steering employees in a protected class to lower paid jobs than persons outside the class, or discriminating in promotions, performance appraisals, procedures for assigning work, or training opportunities. (e.g., manipulating performance evaluations, denying training opportunities and giving out menial assignments, etc. as a mechanism to underpay and stifle the pay of Black workers or keeping Black staff in lower paying jobs by not posting internal job vacancies, denying Black workers promotions, setting unequal, corruptible, and lax promotion criteria, having double-standards for promotions, denying transfers, etc. as a means of holding back the pay of Black workers).

There will be more on compensation discrimination tomorrow.

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

It's a Privilege...

You only have to talk to Black workers to realize how many of us feel that our careers are often intentionally stifled by those we work with. Sometimes I wonder exactly how many African Americans have been held back, railroaded, and marginalized simply because of our race. I think the answer is far more people than we will ever know. I mean, how do you calculate the number of White managers or supervisors that have not promoted Black staff or given Black staff the same consideration and benefits that White workers routinely receive?

Some Whites would probably say, “That’s sounds like a cop out. Maybe some Blacks just don’t work hard to get what they want.” But, that’s what I expect someone to say when they are the beneficiary of White privilege.

White privilege is the polar opposite of The Black Factor. White privilege is a positive. The Black Factor is often a negative. And, much of what goes on in corporate America has to do with these shallow and inappropriate ways of handling issues, evaluating people, examining situations, and making decisions.

White privilege allows you to believe that anyone who hasn’t achieved a certain level of success didn’t do so because they had no desire to succeed and, therefore, really didn’t try hard enough. White privilege allows you to tell someone, with a straight face, that all they have to do is work harder and longer hours than anyone else and that everything else will fall into place. White privilege allows you to not be truthful to yourself or others about the reality of preferential treatment.

Preferential treatment comes from those in power to those they designate as recipients of that power. Far too often, those recipients typically don’t come with a Black face. People choose to associate with those that are like themselves or those who they believe will “fit in.” In corporate America, when all things are equal, nothing is ever equal. So, when someone’s up for a promotion and a White manager has to choose between a White employee and an African American employee, and all things are equal regarding qualifications, years of experience, technical expertise, etc., many White managers are going to select the White employee for the promotion. They’d have to fight human nature, and any personal biases they may have or stereotypes they believe, in order to do the opposite.

Some White people don’t seem to get or want to accept the reality that there are different sets of rules for different people. But that’s the privilege of White privilege. White privilege allows you to believe that everyone has an equal shot to succeed in this country, despite this country’s horrid racial history and current social and economic issues that impact minorities living in America today.

White privilege allows you to become the judge, jury, and, should you choose it, the executioner, of others. White privilege allows you to provide conflicting reasons for your words and actions and to expect that others will accept the contradictions without question. White privilege is the ultimate privilege, hence bliss, because it is the cornerstone that keeps your world afloat—this belief that you are innately superior to everyone around you.

I’ll give you an example of White privilege in action. I’ve worked in Human Resources on a couple of jobs. More than once, I’ve been told that we were placing employment ads, but only as legality. If I received any applications or resumes, I was told to place them in a file with a copy of the employment ad and to tuck them away in a file cabinet. No one was going to be interviewed because someone had already been picked for the position. And, it was usually a friend or the friend of a friend of someone currently working at the company. Yes, they were always White. These people had the job before walking in the door. The interview was a mere formality. Repeat this in how many workplaces and tell me how many other applicants ever had a crack at an equal employment opportunity?

It must be nice to have a system rally around your effort to find gainful employment. Most of us wouldn’t know anything about that. Nevertheless, many Americans actually question why affirmative action has been needed in America. They can brag about the system hooking them up, in one breath, and then argue that African Americans and other minorities should have to earn their way into the system, in the next breath. This is despite the free pass that many of them have used and despite systematic racism and other social factors.

For African Americans, hard work, experience, intelligence and other factors don’t automatically translate into success. The Black Factor prevents many African Americans from becoming mid-level managers, executives or even entrepreneurs. People pretend there’s no such thing as White privilege and preferential treatment. But, we all know—deep down—that lots of things people receive (from jobs to qualifying for home and business loans) were acquired because they just happened to be the right color or class.

What’s my point?

Give up?

Never! That’s what the racist wants. So, don’t give them that victory.

The point is that it’s not always about you. It’s often about other people’s bullsh*t and baggage. The Black Factor is their issue. It’s an issue people force on you…another standard they hold you to. It’s tempting to wonder what you’re doing wrong. It’s tempting to think that other people are inherently superior to you, that they’re always smarter than you are.

But, it’s important to remember that everything people receive, they didn’t always earn. They didn’t necessarily get “it” because they were smarter than you or more talented than you. They didn’t necessarily get something because they played the game better than you.

Sometimes people are just lucky, sometimes they had that hook-up, and sometimes they were the “right” color. Regardless of whatever lines are fed to you about some shortcoming on your part, keep working hard, find ways to improve, and keep striving to do better—for you! Don’t internalize other people’s bullshit. Don’t beat yourself up. You’re not inferior. Control what is within your power to control. Fight for what you’ve earned—don’t give it away!

Black-on-Black Work Relationships Are Often Impacted by White Perceptions and Interference

I’ve been blogging about how the White media has been speculating about Sen. Barack Obama’s relationship with Black voters. It’s been:

--Is he Black enough?
--Is he too educated to appeal to Blacks?
--Will Blacks abandon their loyalty to the Clintons for him?
--Will Blacks vote for him simply because he’s Black?
--Blacks shouldn’t vote for him simply because he’s Black because it will show how far the country has come.

It boils down to White analysis of Black relationships, which is not something that’s confined to politics. In many workplaces around the country, there is also speculation about Black on Black relationships. There is often analysis of Black on Black relationships. And, there’s sometimes interference in Black on Black relationships...

particularly if one of the Blacks involved is a supervisor or manager.

I’ve heard many complaints from Black managers about having their authority and decisions questioned by White counterparts based on how their relationship with Black subordinates and staff is perceived by Whites.

For instance, when Black managers have Black subordinates, they report feeling pressured to have a distant relationship with their workers and to be strict with them. Specifically, they’ve felt that Whites perceived they would be easy on staff, let them goof off, allow the quality of work to slip, and would allow a party atmosphere in the workplace out of need to show same race preferential treatment or loyalty. They felt that Whites were just waiting for anything that showed they “favored” Black staff. They also spoke about a feeling of having White staff watch them. By “watch” I am referring to a sense of heightened surveillance of Black managers. I can give you three examples of heightened scrutiny based on race:

(1) I’ve spoken to a Black manager, who was assigned to an office where certain staff (read: Black and Hispanic) were being pigeonholed into performing work that should have been shared with their White counterparts. The White counterparts did not like these assignments, which needed to be performed on a daily basis. Because they didn’t have to do this work, they were free to tackle cases and other duties that significantly improved their performance charts and went a long way in securing them a superior performance evaluation, compared to their minority counterparts. As a result, all of the bonuses for this classification of employees were going to White staff.

This Black manager came in and saw the unfair process and its impact on that classification of employees. She completely revamped the process, so that everyone was performing these duties—as they should based on their job description. Immediately, the White subordinates complained to a White director that she was showing preferential treatment to minorities based on race. But, the issue was that she was balancing out inequity that was established on racial lines, by the former White manager. When Whites didn’t have to perform this work because they complained and had the work removed from their list of duties, it was all good. When the workplace became fair, there was a problem.

The White director immediately sided with the White staff and called the Black manager into a meeting. He asked why she changed the procedure and told her it looked biased because it seemed to favor the Black and Hispanic employees and would hamper the productivity of the other (White) staff, who were excelling.

She explained that it was unfair and potentially illegal to have only Black and Hispanics performing the most mundane portions of their job descriptions, while freeing their White counterparts to do the more significant work, which they all were supposed to be performing. She reminded him of the unfair impact on performance evaluations and bonuses. And, she reminded him that their office was scheduled to be audited on an employee-by-employee basis. Productivity was going to be examined and, if it was found that the office—as a whole—wasn’t pulling its weight, the office might be closed! By freeing up everyone’s time, so that everyone could tackle cases, everyone was able to contribute to the overall productivity in the office. As a result, all of their jobs would be more secure. Finally, she again reminded the director that her decision was the only fair decision to make and she made it within her authority as manager of all those employees.

The White director looked at her for a moment and said, “You’re right. I didn’t think about it that way.” The procedure stayed in place, but those White subordinates began making false claims against this manager out of a desire to retaliate against her because they were forced to do assignments they thought were beneath them.

What struck me the most about this is how easily the White director was lured into questioning fairness. No one was being asked to do anything they weren't supposed to be doing. He should have immediately recognized that there was NO ISSUE!!

(2) I’ve mentioned before that my good friend was a manager at our former place of employment. She was responsible for supervising many staff. At first, her subordinates were both Black and White. Eventually, they were all Black. It wasn’t until her staff were all Black that Whites in the department (including the director) began to raise the issue with the Black manager that she needed to appear “impartial” with her staff.

The problem was that, at the time, all of her staff were Black. She was encouraging her staff to learn new skills and seek out training opportunities, as she always did. And, she was really pushing for them to gain the confidence, skills, and experience needed to improve their job performance and to advance within the company. This caused problems because there were same-level White workers that were already being promised promotions. Since she no longer had White subordinates at that point, any promotions in her section would involve a Black person.

It was at that point that this Black manager was perceived as being a “segregationst” and that she was accused of a lack of “impartiality.” In fact, this Black manager was told that she was perceived as having an inability to “differentiate” between her level and the level of her Black staff. She was accused of being “too friendly” with her staff, possibly because she didn’t intimidate them and they were comfortable speaking to her and working with her.

This manager was instructed to avoid going to lunch with her Black subordinates because it increased the perceptions among staff (White) that she was engaging in favoritism and couldn’t distinguish her management level. This was despite the fact that every White manager in her department and around the company (including in my department) often went to lunch with their White subordinates. Even more telling, some of them engaged in after work activities with their subordinates. But, there was no warning for anyone except this Black manager because the assumption was that Whites would be so-called “impartial” with their staff.

When it was all said and done, this Black manager was stripped of her staff. Her staff were reassigned to work for White managers. They divided them up like splitting poker winnings! The Black manager had her assignments stripped from her and divided among these new managers AND her former subordinates, leaving her with no work and attacks on her employment.

Apparently, some Whites think that only other Whites have the ability to be fair, impartial, and unbiased with their staff. There is no expectation that there will be favoritism on such an egregious level that it must be monitored. This is sometimes an issue for Black managers. Whites show preferential treatment for each other all the time except it’s always justified, when they do it.

(3) I have personal experience with White interference in my relationship with a Black manager. When I was employed in the HR Department at the headquarters of a national bank, my Black supervisor gave me a great year-end performance evaluation because I had a great year. This was in regard to my productivity, professionalism, meeting or exceeding deadlines, being proactive, preparing procedures, working large amounts of overtime, etc.

When my supervisor submitted my review to our White VP, he was told point blank, “I don’t believe this.” He handed the evaluation back to my supervisor and told him to rewrite it “for real” and with more criticism of my job performance. At the time the White VP made this request, he’d only worked at our company for several months. He didn’t know me from Jack and knew nothing about my work effort and performance for the previous year. So, on what basis could he dispute my performance evaluation?

On nothing but race! I can be assured of this because this VP made racist jokes in the HR department, including outside the Director’s office door. I was the only one to tell him that he wasn’t funny and I found his jokes offensive. But, getting to my performance evaluation…

This same VP didn’t question the performance evaluation of a single White person in our office! But, he disputed mine and wanted my review rewritten because he thought my Black manager was trying to "hook me up."

What did my Black supervisor do? He asked me to sit down with him to write criticisms of myself to include in the revised review. He said we wouldn’t include anything “too bad” because it wasn’t true, but just enough to “satisfy him.”

I refused and said that I was going to resign. I started to write my resignation letter. My supervisor had an immediate change of heart and said he would stand up for me and stand by my review. Why?

I asked my supervisor if any part of my review wasn’t true. He said, “No.” I asked, “So, why would you change it.” Then, I came right out said, “If you were White and I was White, this would not be happening.” He said, “You’re right.” He refused to rewrite my review. So, this White VP rewrote it himself. Now, remember, he never worked with me. So, he rewrote it without specifics and made claims that I had the all-famous personality issues that many Black workers are falsely accused of. I was accused of missing deadlines, with no specifics. Other false claims were made. I was told that I should have “anticipated things” that had nothing to do with my job, my job level or anything within my authority. A review was submitted with no input from my immediate supervisor.

I contacted the HR director and challenged this review. The White VP stood by and engaged in more activity that was even more revealing of his racial animus toward me. The VP prepared a 10-question survey asking questions about me (my personality and work) and sent it around to several departments in our company. Talk about disparate treatment! Even White staff called to inform me that the survey was being circulated and to ask me what was going on. I couldn’t believe I was the target of a questionnaire whose sole purpose was to solicit negative commentary on my job performance and to slander me around the company.

But, it didn’t work. The questionnaire confirmed my original performance evaluation. The original evaluation was resubmitted and the fabricated review was stripped from my employee file. I never got an apology, not a bad deal since I don’t value insincere words.

But, the VP got one of his agendas established. He strained the relationship I had with my Black supervisor. From there on out, we both felt a bit of paranoia about our positive working relationship and felt that it was harder being congenial with each other. Once, when we were both ill, we were “jokingly” accused of making out in the parking garage. I guess Black men and women are so sexual that we are perceived as just not being able to keep our hands off each other. For a time, my supervisor was very stiff and uncomfortable around me because he felt his job as a manager would be in jeopardy because of the amount of attention my performance evaluation received around the company.

These are just three quick examples of how White pressure, perceptions, and interference can change how Blacks are able to interact with each other at work. In many ways, it is like being on a plantation. On the plantation, everything Blacks did—and even thought—was under the control and influence of Whites. Blacks were pitted against each other based on skin-colored, roles, etc. This was all the doing of the slave master (look up Willie Lynch).

We continue to face pressure and heightened scrutiny, when it comes to our working relationships. The same way the White media has expressed the fear that some Blacks will favor Senator Obama based on racial loyalties, some Whites in the workplace have those same fears.

And, unfortunately, some of these people will do anything in their power to act on those fears and to unduly influence the thoughts and actions of managers and workers. This goes a long way in perpetuating some of the many double-standards that Blacks deal with in the workplace, as well as in other venues.

A Black manager shouldn’t have to fear making positive employment decisions for a Black worker because it will be viewed as reverse racism or favoritism. A manager shouldn’t have to fear being stripped of their position because a racist is accusing them of reverse racism. White managers make decisions every day, which are accepted at face value. The same respect should be given to Black managers.

Finally, Blacks in the workplace should be able to work in a positive, peaceful, and productive atmosphere without White assumptions and interference in those relationships. Unfortunately, if Blacks aren’t acting like crabs in a barrel, some people just aren’t satisfied!

LEGAL BRIEFS: Chicago's Niketown Finally Settles in Race Discrimination Lawsuit

A class action lawsuit was filed against Niketown (Chicago, IL) in 1999 alleging race-based discrimination. The lawsuit (filed by more than 400 African American employees) alleged that Nike discriminated against and continues to discriminate against its African-American employees and managers at Niketown Chicago by:

• Subjecting African-American employees and managers to a hostile working environment created by harassing activities, including the use of racial epithets; accusations and coercive interrogations regarding alleged thefts and misuse of employee discounts; greater scrutiny and monitoring of African-American employees and managers than given to their Caucasian co-workers, including extensive “check-out” searches upon leaving the store; and greater scrutiny and monitoring of African-American customers than Caucasian customers.

They also say that Nike has unlawfully discriminated against its non-managerial African-American employees at Niketown Chicago by:

• Segregating its African-American employees into its lowest level and worst-paid jobs in the stockroom and cashier positions.

• Denying African-American employees equal opportunity for promotions to more attractive positions.

• Applying workplace rules and giving out discipline–up to and including termination–in a racially biased manner.

• Denying 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.

Nike denies all wrongdoing. However, both the parties involved agreed to a settlement which was preliminarily approved by the Court on July 30, 2007. The settlement stipulates that Nike will pay $7.6 million to resolve the claims of class members.

In addition to the monetary relief, Nike has agreed to affirmative relief including: a Court appointed Diversity Consultant to monitor and periodically report to the Court regarding Niketown Chicago’s compliance with the Consent Decree; appointment of a Compliance Officer at Nike’s World Headquarters; designation of an Ombudsperson at Niketown Chicago; diversity training of all supervisors and managers at Niketown Chicago; the creation of store-wide objectives focused on providing equal employment opportunities for all employees; creation of a formal mentoring program for African-American employees; the review and revision of Niketown Chicago’s human resources practices; and review and revision of Niketown Chicago’s loss prevention practices to eliminate any disparate treatment of African-American employees and customers.

Sources: http://www.nikediscrimination.com/ and http://www.workforce.com/section/00/article/25/03/48.html

Supreme Court Back in Session: Taking on Crack Cocaine

Now that the U.S. Supreme Court is heading back in session, they will be dealing with a number of controversial issues. One of those issues will require the court to decide whether sentences given out in crack cases are harsher than sentences given out in cocaine cases.

There have long been claims that crack dealers receive harsher sentences than cocaine dealers. Some believe that the sentencing disparity is caused by Federal guidelines that more harshly punish Blacks for drug offenses.

According to estimates, more than four-fifths of crack offenders are Black. Conversely, only about one-fourth of cocaine offenders are Black. Spelled out, almost seventy-five percent of cocaine offenses are committed by non-Blacks (read: those who are White or some other race). However, under Federal guidelines, many Whites will qualify for lesser prison sentences.

A 1986 law was passed in response to violent crimes committed to get money to feed crack habits. The law includes what critics have called the 100-to-1 disparity: Trafficking in 5 grams of crack cocaine carries a mandatory five-year prison sentence, but it takes 500 grams of cocaine powder to warrant the same sentence. Thus, the disparity in sentencing guidelines was born.

The sentencing commission, an independent agency within the U.S. judiciary, voted (in May) to reduce the recommended sentencing ranges for people convicted of crack possession, a step toward lessening the disparity. The recommendation will become effective Nov. 1 unless Congress acts.
I’ll post any updates on this issue in the future.

Source: www.law.com