Are You Being Documented?

Are you being documented?

If you have received or been told about documentation against you, then you need to make a decision about whether or not you should respond. If you decide to respond, you should figure out when and how.

I can give you an example, from my past, about how documentation--even about something that doesn't initially seem like an extremely big deal--can cause you to lose your job. An African American coworker received a memo that attributed the typographical errors of other staff to her. It was known that she did not make these mistakes. Yet, she was told, in writing, that this lack of quality control was unacceptable. She continued to be accused of making such errors--made by other workers--because it helped show a pattern of negative behavior that was later used as part of the justification to place her on probation and threaten her with termination. She was subjected to such a hostile and offensive work environment, she was forced to resign (also known as constructive termination).

If accusations are made against you, always keep in the back of your mind that even "simple" accusations can be used to launch a campaign of escalation against you. If you are seeing or hearing certain red flag words or phrases at work, you should start planning for worst case scenarios because certain language can indicate that you are going to receive a negative performance review or a memo indicating repeated performance deficiencies, that you may be suspended or placed on probation or that termination could be in your future (depending on the nature of the accusations).

I’ve created a brief list of words or phrases that should make the hairs stand up on the back of your neck. If you see or hear some of these words and phrases and they are preceded or followed by a negative comment, watch your back and keep your eyes open!

With that in mind, some red flag words and phrases include:

• “Consistently” or “often” or “frequently” or “repeatedly” or “chronically” or “habitually,” etc. - The point is that you have allegedly demonstrated a pattern of making the same mistake or exhibiting the same negative behavior, such as demonstrating a bad poor attitude, arriving to work late, missing deadlines, etc.

• “I’ve noticed…” – For the same reason as above.

• “Many people…” or “Some people…” or “A number of people…” or “Everyone” - The point is to show that there is corroboration for the accusation. It’s not just one person’s point of view that you have a problem--everyone or many people allegedly believe the same thing. People making this statement, generally won’t name names, they’ll just make a blanket statement about so-called mass perceptions about you.

• “I’ve talked to you in the past about…” - The point is not just to criticize you, but to show that you have shown no improvement in some negative behavior that was previously brought to your attention. It documents a so-called continuing problem.

• “I’m concerned by…” or “I’m puzzled by…” or “I’m troubled by…” - The point is to show that there is something extremely off-putting or unprofessional about your behavior and that it likely represents a potentially major problem.

• “If you would have…” or “If you had only” or “I thought that you…” - The point is the “you” part of the sentence because the writer is stating that you are solely to blame for something going wrong.

These are just examples of some subtle ways that you can be documented for performance deficiencies at work. If the allegation isn’t true, this represents a potentially devastating problem; in terms of your ability to maintain a positive reputation and any impact the misrepresentations may have your performance evaluations, etc.

Receiving one criticism may not be a big deal, even though it could represent someone’s effort to document you. It’s the form that the criticism takes that makes a written complaint have the potential to be extremely damaging to your reputation. It’s one thing to be told that you have missed a deadline, but it’s another to be told that you “consistently” miss deadlines.

Please note: An insolated incidence of criticism usually has no right to appear in your performance evaluation, even if it did involve major issue. Normally, any atypical behavior is included in the notes/comments of a performance evaluation. Therefore, if an incident was isolated, your review should not be tainted to make it appear as if this was a recurring problem. It can be noted on your evaluation, but your review should be reflective of your consistent and normal work performance.

Should You Step Out On That Ledge?

When it comes to fighting racism and discrimination, Black people are really good at talking ourselves down from the ledge. I refer to it as a ledge because to make a claim of workplace racism requires a great deal of courage and the ability to risk putting yourself out there, on a limb, to be judged and/or torn apart based on your complaint.

When it comes to making racially-based allegations against a White person, many in the so-called mainstream society will call you names like a “race baiter” or will say that you’re “playing the race card.” But, you shouldn’t be held hostage because of labels or change your thoughts or actions based on racially-based name calling.

Here’s the fact. If you’re Black, then you’ve obviously been Black your entire life. You know when you’re experiencing racism. It’s that simple. You know racism when you encounter it as an adult, just as you knew it when you first encountered it as a child. As a child, you knew a certain comment or action had something to do with your color or race and you didn’t need anyone to tell you. You just knew in your gut that something was wrong and it made you feel confused, angry, and possibly afraid. That’s why you went home and told your parents about it and that’s when you got “the talk” about American society and racism.

When it comes to racism, especially at work where you’re entitled to earn a livelihood, trust your instincts and don’t allow those, who you know are abusing your rights, to get away with doing so simply because they threw around a few names.

Too many Blacks have learned to rationalize racist actions as having some other motivation. Any other motivation, besides racism, allows us to do absolutely nothing about what’s happening to us! However, there are still some battles that need to be fought, still some mentalities that need to be challenged, and still some policies and practices that demand change.

Racism hurts! That’s the point of it. It’s meant to be active and not passive like “simple” prejudice.

That’s why people, consciously and subconsciously, use racism as a tool to oppress and degrade others. Racism has psychological, emotional, financial, and even physical repercussions for those who are repeatedly subjected to its effects. Racism can paralyze lives, temporarily and permanently. It’s that powerful.

That’s why feigned ignorance to racism in the workplace--or anywhere else--seems to be as blissful as the cliché suggests. But, pretending something isn’t happening for the reasons it’s actually happening (racism) doesn’t lessen the negative impact of the offense. If you think you’re fighting racially-based obstacles on the job:

 Take a step back from the situation and try to look at the situation from other perspectives. Are any of the issues, which you perceive as race-based, possibly caused by other legitimate reasons? Write down the basis for your position of on-the-job racism. You should list specific examples of inequitable treatment, a racially-hostile environment, etc. You can’t just make a claim of racism. You have to be able to back it up with details (directives, quotes from staff and managers, emails, memos, etc.)

 Talk to other staff. Find out if other minority staff share your perspective. Start taking notes. Try to determine how significant the suspected problem on your job may be. Decide if the group will address any perceived problem. If not, decide if you will individually tackle the issue with the appropriate members of management and/or HR.

 Come up with possible solutions for any problems you’ve identified. It’s always better to have a suggestion for making things better, even when coming up with these ideas is not necessarily your responsibility. When it comes to something as important as earning a living and your work environment, think of things that can improve your situation. This includes asking if the company will provide sensitivity/diversity training, send out a reminder regarding the policy on harassment, conduct an investigation into the pattern behavior of a particular coworker, etc.

A Hostile and Offensive Work Environment

A hostile work environment 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 work environment might be indicated by:

• Use of racially derogatory words, phrases, epithets;

• 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; or

• Derogatory or intimidating references to an employee’s mental or physical impairment.

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;

• 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.

According to the EEOC, an employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

It's Usually a Long, Hard Fight!

One of the biggest mistakes anyone fighting workplace racism can make is to ASSUME they are dealing with reasonable individuals. Even if all evidence seems to point to the fact that most of your coworkers and managers are honest, fair, objective, etc., you just never know which way people are going to go when stuff jumps off at the job.

This is not to sell people short. You might be blessed with staff and/or managers who will rise to the occassion and speak truth to power about what has been going on at work. Even so, that doesn't mean that they will be successful in changing the dynamics going on at work.

In the end, everyone that is touched by a race-based scandal at work has to decide if they are going to stand on the side of justice, if they will straddle the fence or if they will seek to go into workplace protectionist mode and be the ever loyal employee or manager.

You can't be responsible for how people will respond to you and your fight against workplace abuses. Some may avoid you and look the other way for fear of being dragged into a mess, some may isolate you in order to create a hostile environment and with the hopes that isolation will cause you to resign, some may participate in actions against you in order to set you up for termination, some may sign false statements out of fear of losing their jobs, some may act against you in hopes of getting a bonus or promotion, etc.

And, yes, some may tell the truth.

It's not up to you. They will do what they will.

All I know for sure that is that if you are battling racism anywhere in this world, you need to prepare yourself for an emotional, mental, spiritual, and physical grind. You must prepare to be the target of psychological warfare. You must prepare to have your good name possibly run through all sorts of mud. You must prepare to be left to fend for yourself and to be abandoned by workplace "friends." You must prepare to fight for information and to encounter delays and excuses. You must prepare for possible set backs and defeats, up to and including termination. And, you must prepare to hear claims that you failed to prove your case to an internal and/or external investigator or in a court of law.

Yes, hope for the best.

But, prepare yourself for the worst outcome.

Doing otherwise could literally break you. Don't make any assumptions. Don't be overly optimistic about promises to investigate your claims fairly and impartially. You never know which way the wind will blow.

All you can do is prepare for the grind. In the end, if you have nothing else, you want to have your sanity and your health!

EEOC Issues New Data on Job Patterns in the Private Sector

Employer Survey Results Posted on Data.gov, Part of President’s Open Government Directive

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) has posted extensive new data on job patterns in the private sector, as part of the Obama Administration’s Open Government Initiative.

The EEOC posted 11 new aggregate data sets from the most recent edition of its report Job Patterns for Minorities and Women in Private Industry, commonly known as the EEO-1 survey, on www.Data.gov. The EEO-1 raw data extracts for 2008 may be downloaded at http://www.data.gov/catalog/raw/category/0/agency/119/filter/2008/type//sort//page/1/count/25.

The EEOC also posted the data on a new Open Government page. That page, on the EEOC’s web site at http://www.eeoc.gov/open/, offers a one-stop location for EEOC statistics and other performance-related materials, and will soon also provide tools for the public to interact with the EEOC about information the agency provides and work it does. The page will eventually carry the agency’s comprehensive Open Government Plan.

“Posting the latest aggregate EEO-1 survey results on Data.gov is the first step in what will be a larger EEOC effort to advance the President’s goal of opening up our government and providing greater access to agency information and operations,” said EEOC Acting Chairman Stuart J. Ishimaru. “We look forward to working with stakeholders as we create and implement our Open Government plan.”

The most recent data sets contain comprehensive labor force profiles of race, gender and ethnicity divided by various job categories. According to the 2008 EEO-1 survey and historical data:

--Of the approximately 62 million private sector employees nationwide covered by the 2008 survey, about 30 million (48%) were women and 21 million (34%) were minorities;

--The rate of minority employment tripled between 1966 and 2008 from 11% to 34%;

--Among the four minority groups continuously measured, the employment rate for Black or African Americans increased steadily from 8% in 1966 to 14% in 2008;

--Hispanics or Latinos had the fastest growth rate in the private sector, increasing from 2.5% to over 13% between 1966 and 2008.

--Women’s overall participation rate in the private sector jumped from 31% to 48% between 1966 and 2008.

The 2008 EEO-1 data extracts will be of use to the general public, researchers and academia, application and data infrastructure developers, and government agencies. Users may download the voluminous raw data sets for further examination and manipulation in a variety of ways, such as importing the data into spreadsheets, data bases, graphic presentations and statistical software programs.

In addition to information on race, gender, ethnicity and job categories, the EEO-1 survey also includes data on the size, location and industry of employer establishments. Employers with 100 or more employees must file the annual survey, as well as employers with federal government contracts of $50,000 or more and 50 or more employees. Additional EEO-1 data and information, including user-friendly html tables and historical data, can be found on the EEOC’s web site at http://www.eeoc.gov/eeoc/statistics/employment/jobpat-eeo1/index.cfm.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

Source: http://www.eeoc.gov/eeoc/newsroom/release/2-5-10.cfm

Facts About Workplace Retaliation

An employer may not fire, demote, harass or otherwise "retaliate" against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.

In addition to the protections against retaliation that are included in all of the laws enforced by EEOC, the Americans with Disabilities Act (ADA) also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else's exercise of rights granted by the ADA.

There are three main terms that are used to describe retaliation. Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity. These three terms are described below.

Adverse Action

An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include employment actions such as termination, refusal to hire, and denial of promotion, other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.

Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, "snubbing" a colleague, or negative comments that are justified by an employee's poor work performance or history.

Even if the prior protected activity alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful. For example, it is unlawful for a worker's current employer to retaliate against him for pursuing an EEO charge against a former employer.

Of course, employees are not excused from continuing to perform their jobs or follow their company's legitimate workplace rules just because they have filed a complaint with the EEOC or opposed discrimination.

For more information about adverse actions, see EEOC's Compliance Manual Section 8, Chapter II, Part D.

Covered Individuals

Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals. For example, it is illegal to terminate an employee because his spouse participated in employment discrimination litigation.

Individuals who have brought attention to violations of law other than employment discrimination are NOT covered individuals for purposes of anti-discrimination retaliation laws. For example,"whistleblowers" who raise ethical, financial, or other concerns unrelated to employment discrimination are not protected by the EEOC enforced laws.

Protected Activity

Protected activity includes:

--Opposition to a practice believed to be unlawful discrimination

--Opposition is informing an employer that you believe that he/she is engaging in prohibited discrimination.

Opposition is protected from retaliation as long as it is based on a reasonable, good-faith belief that the complained of practice violates anti-discrimination law; and the manner of the opposition is reasonable.

Examples of protected opposition include:

--Complaining to anyone about alleged discrimination against oneself or others;

--Threatening to file a charge of discrimination;

--Picketing in opposition to discrimination; or

--Refusing to obey an order reasonably believed to be discriminatory.

Examples of activities that are NOT protected opposition include:

--Actions that interfere with job performance so as to render the employee ineffective; or

--Unlawful activities such as acts or threats of violence.

--Participation in an employment discrimination proceeding.

--Participation means taking part in an employment discrimination proceeding.

--Participation is protected activity even if the proceeding involved claims that ultimately were found to be invalid. Examples of participation include:

--Filing a charge of employment discrimination;

--Cooperating with an internal investigation of alleged discriminatory practices; or

--Serving as a witness in an EEO investigation or litigation.

A protected activity can also include requesting a reasonable accommodation based on religion or disability.

For more information about Protected Activities, see EEOC's Compliance Manual, Section 8, Chapter II, Part B - Opposition and Part C - Participation.

Source: http://www.eeoc.gov/laws/types/facts-retal.cfm

Race and Color Discrimination

Race/Color Discrimination

Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features). Color discrimination involves treating someone unfavorably because of skin color complexion.

Race/color discrimination also can involve treating someone unfavorably because the person is married to (or associated with) a person of a certain race or color or because of a person’s connection with a race-based organization or group, or an organization or group that is generally associated with people of a certain color.

Discrimination can occur when the victim and the person who inflicted the discrimination ARE THE SAME RACE OR COLOR.

Race/Color Discrimination & Work Situations

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

Race/Color Discrimination & Harassment

It is unlawful to harass a person because of that person’s race or color.

Harassment can include, for example, racial slurs, offensive or derogatory remarks about a person's race or color, or the display of racially-offensive symbols. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Race/Color Discrimination & Employment Policies/Practices

An employment policy or practice that applies to everyone, regardless of race or color, can be illegal if it has a negative impact on the employment of people of a particular race or color and is not job-related and necessary to the operation of the business. For example, a “no-beard” employment policy that applies to all workers without regard to race may still be unlawful if it is not job-related and has a negative impact on the employment of African-American men (who have a predisposition to a skin condition that causes severe shaving bumps).

Source: http://www.eeoc.gov/laws/types/race_color.cfm

LEGAL BRIEF: "This is not the Ghetto!"

Well, I'm sure we've all heard some questionable things said at work, related to race. But, it's always funny, in that not so funny way, to hear people come right out and be overt with their racism. In the legal brief, below, Black workers for the Memphis Goodwill were chastised at work and told they were not in the ghetto. And, the Black Transporation Director was fired about 30 days after making her second complaint. For details see below:

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Memphis Goodwill Agrees to Pay $105,000 to Settle EEOC Race Bias and Retaliation Lawsuit

Former Employee Fired for Complaining About Alleged Race Discrimination, Agency Charges

MEMPHIS – Memphis Goodwill Industries, Inc., a non-profit agency, will pay $105,000 to settle a race discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced on January 22nd. The EEOC had charged in its suit (No. 2:08-cv-02621-BBD-cgc, filed in U.S. District Court for the Western District of Tennessee) that Memphis Goodwill fired a transportation director in retaliation for reporting alleged race discrimination and because of her race, black.

In addition, the EEOC’s suit alleged that the vice president of operations chastised a group of African Americans by stating, “This is not the ghetto.” When the former transportation director complained to the vice president of operations, she received her first written reprimand from him within days and after receiving a second write-up less than 30 days later she was fired. After her termination, the EEOC said, a white male was hired as manager of transportation.

Under the terms of the two-year settlement agreement resolving the suit, signed by U.S. District Judge Bernice Bouie Donald, in addition to the monetary award, Memphis Goodwill agreed to provide employment discrimination training to management personnel at its Memphis facility and to report complaints of discrimination to the EEOC. The company will also purge the former employee's personnel file of negative disciplinary actions and provide her with a reference agreed to by the parties.

Faye A. Williams, EEOC regional attorney in Memphis, said, "It is a serious violation of federal law to discharge an employee based on race. Further, it is simply illegal to fire someone for reporting unlawful discrimination. Employees must be able to complain about practices which they believe violate the law without fear of retribution. We are pleased the parties were able to resolve the case prior to trial.”

Memphis Goodwill trains and employs workers. In the Memphis Area, Memphis Goodwill has over 200 employees.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

Source: http://www.eeoc.gov/eeoc/newsroom/release/1-22-10.cfm

Track Workplace Disparities

Disparate treatment occurs when employers have different standards for different groups of people and when they apply rules, policies and procedures inconsistently because of these differences.

In simpler terms, one group is somehow being treated better by receiving some form of preferential treatment. For instance, White and African American employees with the same education and experience don’t receive the same pay. The African Americans may receive $5,000 to $15,000 less per year than their White counterparts with no justification for the lesser pay for Blacks.

By tracking disparate treatment on your job, you can show patterns of discrimination that are in effect at your workplace. For instance, if African Americans can only work on African American projects, while Whites work on “mainstream” and minority contracts, that might be one way to show unequal opportunities at work.

Highlighting employee qualifications (e.g., education, years of experience, etc.) versus salaries and titles could potentially show unequal treatment. For instance, a White employee with a Bachelor’s degree and 3 years of experience makes $45,000 per year and is level 4 employee, while an African American with a Bachelor’s degree, a certification in a specific aspect of the field relevant to the job, and 6 years of experience receives $38,000 per year and is a level 3 employee.

Another way to show disparate treatment and discrimination could include identifying the number of African Americans promoted in the previous 5 years compared to the number of Whites promoted in the previous 5 years. If only 4 African Americans received a promotion and more than 50 Whites received a promotion, for example, something is truly amiss at your job. This, of course, depends on the number of Blacks on your job. If there are only 10 Blacks at your company, for instance, the major problem is not in promotions, but in hiring practices!

Track disparities and use your chart/log to address issues directly with your employer or with a third party, such as an external investigator or attorney.

Be Careful of Sharing Too Much Information About Your Problems at Work!

Since we're not that far into the new year, I feel I need to give a reminder that you can't always trust everyone at work with information about your problems/issues. This is especially true when it comes to something as sensitive as a race-related problem and/or allegations about potential violations of federal statutes, such as discrimination, harassment, and/or retaliation.

Sometimes, people have an interest in your problems that is rooted in genuine concern and a desire to help you work your way through your problem. But, sometimes, folks just want to ask questions because of the gossipy nature of discussing such things at work. They want to be the one to know what's going on, but they may also be someone who ends up sharing details about what you're saying that can end up making there way to the person you are talking about or to higher-ups in your department or in the company, as a whole.

It's not necessarily a desire to gossip that might make someone repeat things you've said. Some people are simply malicious--even people that you think are cool with you. Never assume you know someone's motivations. You can't get into anyone's head. You only know what you do and why--and some of us don't even know that!! So, don't assume there isn't a reason for someone to betray your trust. If people think they can get a promotion, curry favor, get a raise or bonus or possibly a nice assignment, they may decide it's worth going behind your back and playing the role of the company man. And, that spells bad news for you!

You want to be the person to share information about your issues at the time and place of your choosing. You don't want to be forced into conversations or attacked based on leaks. You certainly don't want to be subjected to retaliation because someone is disclosing your concerns and/or your plan to deal with a sensitive issue at work.

By having loose lips, you might be giving someone the motivation to step up attacks against you or to accuse you of things that might lead to personnel actions like suspension and/or termination. Pick your battle and your soldiers wisely. Don't let your mouth cause you more problems at work than any you might already be dealing with.