Race Discrimination

Diversity and inclusion in the corporate culture could mean preemptive hiring is discrimination. A Black employee alleged that she was denied a promotion to a higher IT position, and a less-qualified Asian employee was selected instead. The employer’s defense was that she never applied for the position and, therefore, could not contest the decision. However, the evidence showed that the manager: knew there were only two eligible employees; knew the Black employee intended to apply; did not wait for the application deadline to expire; and directed the selection of the Asian employee and stopped the hiring process, while the application period was still open. The evidence further showed that the plaintiff rated far higher on performance factors than the person selected, and other key managers considered her “superior by a wide margin.” The court found that the employer’s defense seemed to be a pretext for racial discrimination. Calhoun v. Johnson (D.C. Cir., 2011). For best practices in recruitment, watch Diversity Recruitment Web Seminar: How to Find 1,800 Black & Latino Employees.

Race discrimination claim ruled “nonsense.” A white police applicant filed a race-discrimination case alleging that he was bumped from a hiring list, passed over, so that lower-scoring “minority” applicants could be hired. He identified two “minority” officers who were hired. The court upheld summary judgment, dismissing the case as frivolous and “nonsense.” The plaintiff’s complaint relied on hearsay and stray comments he had heard from people who were not involved in the hiring (loose rumors, conjecture and pure speculation). The actual evidence showed that: the plaintiff was not “passed over,” he was eliminated due to failing the background check; the two identified “minority” officers had been hired in a process that was long over before he even applied, and neither of them had “passed over” anyone; and finally, the bottom half of the roster that the plaintiff was on were all white (some of whom were hired), so he could not have been bumped by a “minority.” His entire case was based on conjecture, unfounded rumors and stereotypes about “affirmative action” hiring instead of evidence. Thompson v. Lansing Mich. (6th Cir., 2011). For more on stereotypes, read ‘Blacks Should Not Be Satisfied With Food Stamps’: The Danger of Stereotypes and NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words

Sex Discrimination

HR manager files class-action suit against Toshiba. A former HR manager has filed suit requesting certification of a class of “all females who are or have been employed by Toshiba in the United States.” The suit alleges systemic gender discrimination in compensation, promotion and terms and conditions of employment under Title VII and the Equal Pay Act. The suit seeks to cover all Toshiba subsidiaries. The plaintiff had been an HR manager for the Toshiba Nuclear Energy Corp. subsidiary Cyphers v. Toshiba American, Inc. (S.D., NY, 2011). (Whether such a large class will be certified may rest on the outcome of the pending Walmart decision by the U.S. Supreme Court.)

Trashing harassment complaint creates case. After-the-fact action does not cure the problem. A clerical employee gave a written complaint of sexual harassment to her supervisor after several verbal complaints received no action. The supervisor wadded up the complaint, threw it in the trash, pointed at the door and said, “This is total [BS]! I want you out of here and never want to see you again!” She left, assuming she was fired. However, two days later the company’s HR director learned of the incident, called the employee, informed her she was not fired and asked her to come back. She refused, claiming that she could not reasonably reenter the environment after what occurred. She sued for Title VII retaliation. The court ruled that there was a valid claim of retaliation. The supervisor’s act clearly violated Title VII. The company’s attempt to cure was too late to overcome such an overt act by the supervisor. Young-Lousee v. Graphic Packaging Int., Inc. (8th Cir., 2011).

Disability Discrimination

Is an essential function essential to the job? A shoulder injury made a UPS driver unable to do his job. He applied for several other positions he believed he could do. The company rejected him, due to essential job functions in the job descriptions requiring lifting and mobility beyond his medical limitations. However, the employee produced evidence that these functions were not actually performed in the real job. The court allowed the case to go to trial. The courts give great weight to an employer’s determination of what duties should make up a job, and the position description’s list of essential functions are a powerful defense in an ADA case. The court, though, ruled that there must be more than a hollow defense. “The employer will have to show that it actually imposes such requirements on its employees in fact and not simply on paper.” Supinski v. United Parcel Service, Inc. (3rd Cir., 2011).

Messing up president’s schedule was valid reason for discharge. A communication director had cancer. He incorrectly scheduled the organization’s president, resulting in the president missing a major, important public-relations event. The communication director was fired. He sued, claiming that he was replaced by a person without a medical condition and therefore the discharge was a prima facie case of disability discrimination. The court disagreed. It found no connection between the cancer and the discharge. A major job blunder is a valid non-discriminatory reason for discharge. McCermott v. New York City Housing Development Corp. (S.D. NY, 2011).

Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

The post ‘I Didn’t Get the Job Because I’m Black’ appeared first on DiversityInc.

Question:

I am a Black woman from continental Africa who chooses to have natural Black hair, not relaxed or chemically altered in any way. I wear my natural hair not as some political statement but because it is the hair that God gave me and intended me to have, just as it was intended for some Caucasians to have blue eyes or blond hair. 

I have heard about women and men of African descent being overlooked for promotions or outright being fired because they choose to wear their natural hair, braids, twists, mini Afros, locs and so forth. I understand that you do not represent all white people nor do you speak for the whole white race, but I wanted to know if whites in general feel disdain for natural Black hair in corporate America, or is it just an overblown issue? 

Also, I have heard that the more “African” you look–dark-skinned, coarse hair (think Wesley Snipes, Whoopi Goldberg)–the more ignored and overlooked you will be in the workplace … and the more light-skinned or “whiter” you appear (think Halle Berry or Beyoncé) you appear, the easier it is to get promotions. Is this really all true? Are there “preferred” Blacks in corporate America? Isn’t diversity supposed to be inclusive of everyone–natural hair, blue eyes, fine hair, etc.? 

Also, why does wearing natural hair, braids, locs, twists or any “Black” hair style that accommodates and is more healthy for our hair structure have to always be perceived as something negative, or worse, “political”? Why does the coarse hair on my head need to relaxed or chemically altered to be “presentable” in the workplace? Please be honest.

Answer:

There’s no doubt in my mind that Black people have been overlooked for promotions because of natural hair or darker skin color. Psychological tests show that people most trust people who look like them. Since white men run most corporations in this country, straightened hair and/or lighter skin is going to be an advantage (disturbing, but let’s keep it real).

However, allowing a bias like this to go unchecked is detrimental to business, as hair texture has no connection to talent or ability. An inability to manage past immaterial things like this makes a company less competitive.

This is where diversity management returns on investment. Companies that manage past bias and hire, mentor and promote equitably have better talent. They are also better prepared for the future as our country becomes more diverse. Our DiversityInc Top 50 data proves that representation is tied to recruitment and retention.

This isn’t a theory; it’s a reality for companies that earn a spot on The DiversityInc Top 50 Companies for Diversity. DiversityInc Top 50 companies have up to twice as much representation of Black, Latino and Asian people in management than the overall management work force in the United States.

Equity equals quality. That means a corporate culture that is so out of touch with reality as to not have good diversity management is not a good place for anyone to work–not just Black people.

If you think your company “isn’t ready for natural hair,” then you should check out our career center right now.

However, please consider this carefully: President Obama won a decisive majority of white people’s votes and diversity was a key factor in determining the 2012 election, so if you think your company really isn’t “ready for that,” it may be that your perception is out of date.

I think America is ready for the Black women (and men, but this is mostly a woman’s issue) in our lives to be more natural with their hair–and I’m looking forward to it.

Luke Visconti’s Ask the White Guy column is a top draw on DiversityInc.com. Visconti, the founder and CEO of DiversityInc, is a nationally recognized leader in diversity management. In his popular column, readers who ask Visconti tough questions about race/culture, religion, gender, sexual orientation, disability and age can expect smart, direct and disarmingly frank answers.

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