All posts by Diversity Inc

Racist Bathroom Graffiti & Other Legal Challenges By Bob Gregg – Nov 23, 2010

Several recent cases illustrate the problem of insufficient action when an employee complains of harassment:

Sexual harassment of male worker compounded by company’s stereotyped defense. A recent widower began receiving sexual overtures from a female coworker. He asked her to stop. Instead, she continued and became more overtly graphic and frequent in her propositions. The man repeatedly complained to management. Once, the woman was given a verbal warning, but she continued unabated. Repeated complaints received no action. The male employee suffered resulting psychological stress, his work suffered and he was discharged for lowered performance and “poor attitude.” In the ensuing Title VII suit, the company’s attorneys asserted that “most men would have welcomed the advances” and therefore this was not a hostile environment, which should be recognized under Title VII. The court rejected this argument as a “stereotype.” It was clear the male employee found the advances “unwelcome and abusive.” The employer’s response to the complaint was “ineffectual” in the face of known ongoing harassment. EEOC v. Prospect Airport Services. (9th Cir., 2010)

Insufficient efforts to correct harassment. Black employees were subjected to a hostile environment, much of it created by a coworker known to be a “notorious serial harasser.” The harassment included racist bathroom graffiti, repeated racial slurs, racial jokes and celebration of “James Earl Ray Day.” The company was slow to clean up graffiti, never conducted a serious investigation of complaints and merely gave the main harasser a few slap-on-the-wrist oral warnings. The company knew of this and other racist workplace behaviors for years and took no effective action. The court found that the company did not seriously act to correct a 20-year problem until after the Black employees sued. The court found it could be reasonably concluded that the company “passively waited for complaints, occasionally checked for damage to the bathrooms, but made no efforts to correct the underlying problems.” The company took no initiative and no responsible steps to correct the impact of clearly known harassment. Armstrong v. Whirlpool Corp. (M.D. Tenn., 2010).

“Recommendations” for harasser to take training and counseling was not sufficient action for overt behaviors. A female physical therapist was repeatedly propositioned, kissed and fondled by a male chiropractor in a medical center. The company’s action was to “recommend,” but not require, that the chiropractor take some harassment training and seek counseling. The harassment continued and the therapist quit, and then sued. The court found a lack of the “prompt and effective remedy” required by the law. The appellate court upheld a $100,000 jury award and attorneys’ fees. Sheriff v. Midwest Health Partners PC (8th Cir., 2010).

Disability

ADAAA standards starting to take effect—condition in remission requires accommodation. The ADA Amendments Act was passed in 2009, but only now are cases under the new standards beginning to come to trial. Hoffman v. Carefirst of Fort Wayne, Inc., (N.D. Ind., 2010) was filed by a service technician who had beat renal cancer and been symptom-free for years. The company increased his work hours, requiring overtime. He did the work. Then the company told him of an even more substantial increase in work hours. The employee presented a doctor’s opinion that the greater work, and resulting stress, was detrimental to the cancer and could take it out of remission. The company told him he could either work the increased hours or quit. The employee eventually did quit and then sued under the ADAAA. The company defended by claiming that the employee did not have a disability because he had no present restrictions, no present impairment of any major life activities and needed no accommodation. This seems to match the pre-amendment ADA. However, even under the regular ADA, the company seems to have disregarded the “interactive-process” requirement to at least consider and communicate about any request for accommodation before deciding it is either unreasonable or not required. Under the ADAAA, one does not have to be presently incapacitated; “an impairment in remission is a disability if it would substantially limit a major life activity when active.” The court found that cancer is clearly a disability. If work duties could create a reactivation or any other issue regarding the disability, the employer has a duty to consider reasonable accommodations.

Administrative Action

Change of terms: “intellectual disabilities” is in; “retardation” is out. The U.S. Senate has mandated a change to delete the term “mental retardation” or “retarded” from all federal law, regulations and publications and replace it with “intellectual disabilities.” The new term covers a broader array of cognitive conditions than just retardation. The reasoning is that the term “retardation” is “anachronistic, insensitive and stigmatizing.”

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

Women Still Not Getting to the Top Levels

Even though women make up more than half the workforce, they are still significantly underrepresented on corporate boards and in C-level executive positions, according to a new study released by Calvert Investments.

The study, “Examining the Cracks in the Ceiling: A Survey of Corporate Diversity Practices of the S&P 100,” shows that 92 of 100 CEOs represented in the survey are white men.

Other key findings from the S&P 100 report:

  • Women make up only 18 percent of director positions within the S&P 100 and only 8.4 percent of the highest-paid executive positions within the same group of companies
  • More than half—56 companies—in the S&P 100 have no women and/or Black, Latino, Asian or American Indian representation in their highest-paid executive positions, and only 14 companies have two or more diverse officers in these positions

By way of contrast, The DiversityInc Top 10 Companies for Executive Women have a far better track record when it comes to employing and retaining women in the workplace and moving them up the management ranks. For example, these companies tie senior leaders’ compensation to diversity initiatives, as do 76 percent of The 2010 DiversityInc Top 50 Companies for Diversity®.

Additionally, their boards of directors are 24 percent women, compared with 15 percent as the national average (Catalyst). And senior management (CEO and direct reports and direct reports to those direct reports) are 36 percent women, compared with a national average of 13.5 percent (Catalyst).

The Calvert study evaluated S&P 100 companies according to 10 indicators: EEO Policy, Internal Diversity Initiatives, External Diversity Initiatives, Scope of Diversity Initiatives, Family-Friendly Benefits, EEO-1 Disclosure, Highest Paid Executives, Board Representation, Director Selection Criteria and Overall Corporate Commitment. 

“We are very concerned about the fact that women and minorities continue to be underrepresented at the highest levels of management,” says Calvert Group President and CEO Barbara J. Krumsiek of the study. “Without a pipeline of female and minority executives in highly paid, highly responsible positions, it will be very difficult to achieve board diversity, which is critical to strong governance and good management.”

Among some of the other findings in the S&P 100 study:

No disclosure = No accountability

  • The report found that 37 percent of the S&P 100 companies disclose no demographic data on employees, such as race, ethnicity and gender. Only eight companies disclose full EEO-1 data—that is, a full breakdown of the workforce by race and gender across employment categories

Integration and innovation abound

  • According to the report, 30 percent of the S&P 100 companies include some oversight of diversity issues at the board level, and 34 percent of companies include diversity measures within their compensation plans

Corporate commitment remains the “X” factor

  • Overall, 38 percent of the S&P 100 companies demonstrate a robust commitment to diversity, both internally and externally

The Culture of Bullying: Loss of Civility at School, Work, Politics (by Sam Ali)

In poll after poll, Americans have voiced concern over the erosion of civility in modern life and human interactions, in government, business, media and online. According to a poll released in June by Weber Shandwick, 65 percent of Americans say the lack of civility is a major problem in the country and feel the negative tenor has worsened during the financial crisis and recession.

Nearly half those surveyed said they were tuning out from the most fundamental elements of democracy—government and politics—because of the incivility and bullying behavior.

As the national conversation on bullying gains momentum, it’s time to take a closer look at what is causing this behavior and why it matters.

“In today’s America, incivility is on prominent display: in the schools, where bullying is pervasive; in the workplace, where an increasing number are more stressed out by coworkers than their jobs; on the roads, where road rage maims and kills; in politics, where strident intolerance takes the place of earnest dialogue; and on the web, where many check their inhibitions at the digital door,” says Pier M. Forni, author of “The Civility Solution: What to Do When People are Rude” and director of The Civility Initiative at Johns Hopkins University in Baltimore.

“How in the world can we stop bullying in schools, in the workplace, in politics, when it is so close to our national character right now?” asks Dr. Gary Namie, a psychologist and cofounder of the Workplace Bullying Institute, a Washington state–based nonprofit.

The Government Ramifications

With Election Day on Nov. 2, the biggest issue to emerge this election cycle is the potential impact of the Tea Party movement. The NAACP recently published a report called “Tea Party Nationalism,” exposing what it calls links between various Tea Party organizations and racist hate groups in the United States, such as white-supremacist groups, anti-immigrant organizations and militias.

While many people only vote in presidential races, this is the first national election since Barack Obama became president and could reshape the country’s political and social landscape. At stake is control of both the House and Senate, which Obama’s falling approval ratings and the stumbling economy have endangered. Republicans need a gain of 39 seats to retake control of the 435-member House of Representatives, and they need to gain 10 seats to win back the majority in the 100-member Senate. All 435 House seats are at stake this year, along with 37 Senate seats and 37 of 50 state governorships.

With a number of Tea Party candidates emerging victorious in this year’s primary races and many political pundits predicting a GOP landslide on Nov. 2, this year’s midterm election cycle is more than just a numbers game.

Tea Party supporters—who, according to polls, tend to be socially and politically conservative, white, male, married and older than 45—routinely herald themselves as the voice of “real Americans.”

The NAACP report, which counts among its authors, Leonard Zeskind, one of the country’s foremost scholars of white nationalism, says the Tea Party has become a site for recruitment by white supremacists and others.

“The Tea Party makes its mark by finding an underdog and attacking them mercilessly,” writes lawyer and author Emma Ruby-Sachs in The Huffington Post. “They employ the same tactics as the school children responsible for the deaths of Tyler Clementi, Seth Walsh and the countless other kids tormented for their perceived sexuality. When we are young, this kind of bullying, picking on the weak, earns popularity. Turns out, it earns the same when we grow up.”

“Thuggery is nothing new in politics; it transcends time, ideology and party,” says Public Affairs Television senior writer Michael Winship. “But what’s even more disturbing in 2010 is how much of the public, especially many of those who count themselves among the conservative adherents of the Tea Party, is willing to ignore bullying behavior—and even applaud it—as long as the candidate in question hews to their point of view.”

Two Tea Party leaders have been very public about their homophobia.

Sen. Jim DeMint, R-S.C., whose fundraising efforts are benefiting Tea Party candidates across the country, said LGBT people and unmarried, sexually active women should not be permitted to teach in public schools. Next was Carl Paladino, the Republican nominee for governor of New York and Tea Party favorite, who told a group of Hasidic Jewish leaders in Brooklyn that children should not be “brainwashed” into thinking that homosexuality is acceptable.

“The culture of bullying isn’t limited to school children; it has become a national pastime,” notes Progressive Politics writer Karen Harper in the Examiner. “During the 2008 presidential campaign, crowds attending Sarah Palin rallies shouted, ‘Kill him’ over and over again referring to President Obama … Tea party activists carry signs depicting the American president as the devil, the anti-Christ, Hitler and worse. They carry guns to rallies and their paranoiac fear of the government has turned into hate and aggression.”

Facing the Consequences

Forni of Johns Hopkins’ Civility Initiative says the onslaught of rude, bullying and uncivil behavior—intensified by the 24/7 reach of the Internet and social-networking sites such as Facebook—adds to the stress people are already feeling and can translate into real and very tragic consequences.

According to Forni:

  • Students who are bullied and/or cyber-bullied face increased risk for depression, post-traumatic stress disorder, and suicidal attempts.
  • Studies have shown that protracted exposure to stress caused by living in an uncivil environment lowers morale and increases the chances of developing coronary heart disease and other illnesses
  • The American Psychological Association has estimated that workplace stress (considering absenteeism, loss of productivity, medical expenses and turnover) costs U.S. businesses about $300 billion a year

“The weak economy, two wars going on, the threat of terrorism, the hostile political environment, the two major parties warring with one another and exchanging salvos that are not very civil—these are not the most pleasant or stress-free of times,” says Forni. “When we are stressed, we are less likely to be considerate and kind to others. We retire, retreat into the citadel of ourselves and we shut the door. We are more prone to anger. We are less tolerant of the mistakes of others.”

Forni says feelings of insecurity only exacerbate the problem. “When we are insecure or not sure of ourselves for whatever the reason because the economy is bad, or we think we are going to lose our jobs … very often we shift the burden of that insecurity upon others in the form of hostility,” he says. “It is the kick-the-dog syndrome. You make an innocent pay for how badly you feel in order to find some kind of relief.”

Incivility and bullying behavior is also often a precursor to physical violence, says Forni. According to the Department of Labor, there are about 1.8 million acts of physical violence in the American workplace in any given year.

In a cover article in September, Barton Gellman wrote in TIME that “threats against Obama’s life brought him Secret Service protection in May 2007, by far the earliest on record for a presidential candidate.”

At the same time, the number of extremist groups in the United States climbed 244 percent in 2009, according to the Southern Poverty Law Center. Specifically, their numbers grew from 149 groups in 2008 to 512 groups in 2009.

“This extraordinary growth is a cause for grave concern,” says “Intelligence Report” editor Mark Potok. “The people associated with the patriot movement during its 1990s heyday produced an enormous amount of violence, most dramatically the Oklahoma City bombing that left 168 people dead.”

“That wave of anger began with the parallel 2008 cataclysms of the economy’s collapse and Barack Obama’s ascension,” says New York Times columnist Frank Rich. “The mood has not subsided since. But in the final stretch of 2010, the radical right’s anger is becoming less focused, more free-floating—more likely to be aimed at ‘government’ in general, whatever the location or officials in charge.”

Rich notes that this anger is “more likely to claim minorities like gays, Latinos and Muslims as collateral damage.”

“The mad-as-hell crowd in America, still not seeing any solid economic recovery on the horizon, will lash out at any convenient scapegoat,” he says.

In a recent speech at the University of Michigan in May, Obama remarked on the need to maintain “a basic level of civility in our public debate.”

“We can’t expect to solve our problems if all we do is tear each other down,” Obama said. “You can disagree with a certain policy without demonizing the person who espouses it. You can question somebody’s views and their judgment without questioning their motives or their patriotism. ”

Experts in civility note that it is difficult for society to expect or demand that teenagers and children stop bullying and tormenting one another when adults and political leaders are leading by example.

Getting to the Root

Experts note that the hostile and intimidating atmosphere that defines today’s political discourse can be traced back to a number of factors, including the Sept. 11, 2001, terrorist attacks, the changing demographics of the country, the troubled economy and, of course, the fact that a Black man with an Arab-sounding name and a Muslim-born father from Kenya is sitting in the White House.

“September 11 delivered into the hands of the Republican Party a traumatized nation, and our new masters put Americans through the political equivalent of a collective military boot camp; torn from the familiar surroundings of safety and home, we found ourselves stripped of our old identity,” according to a 2008 study published in the “Canadian Journal of Cultural Studies” titled “Bullying in U.S. Public Culture.” “Allegiance to the old public virtues—respect of the Bill of Rights, the Geneva Conventions and the rule of domestic and international law—was mocked and dismissed as quaint and soft by our new drill sergeants. From then on a state of emergency replaced the rule of law and set itself up as the norm.”

“If we are in a constant war-like mode societally, it sounds trivial, it sounds child-like, it sounds naively utopian to say, ‘Can’t we all get along?'” says Namie of the Workplace Bullying Institute. “If you call for civility or a suspension of unmitigated, unfettered aggression, they call you a wimp. They think you are a wimp.”

Working Toward a Solution

In his recent column in the New York Times, Rich says he does not expect the extremism and violence in our politics “to subside magically after Election Day—no matter what the results.”

“If Tea Party candidates triumph, they’ll be emboldened,” he writes. “If they lose, the anger and bitterness will grow.” He believes the only thing that can ultimately change the tide is an economic recovery.

Still, the string of suicides by teenagers such as Rutgers University student Tyler Clementi, who jumped off the George Washington bridge this fall after a video of him in a sexual relationship with another man was posted on the Internet, has rocketed the bullying epidemic into the national spotlight and brought this type of behavior and the havoc it can wreak on people’s lives into sharper focus.

In October, Rutgers launched Project Civility, a two-year initiative to engage students in a series of activities and discussions aimed at cultivating an environment of courtesy and compassion. The project, coordinated by Kathleen Hull, director of the Byrne Family First-Year Seminars, and Senior Dean of Students Mark Schuster, was in the planning stages long before Clementi’s tragic suicide but coincidently was launched the same week he died.

Hull’s approach to Rutgers’ civility project hinges on personal responsibility: While individuals may not be able to change the world, they can make a difference in their small corner of it. “We are living in a time of great uncertainty,” Hull says. “[But] all we can control is our own behavior. We can’t change the world and stop wars and make everything better, but we can control how we act and how we respond.'”

Obama has called for greater awareness of the problem, saying the nation must “dispel the myth that bullying is just a normal rite of passage or an inevitable part of growing up.” Although Obama was addressing the problem of school bullying, the message can—and should—apply broadly to the political and electoral process, critics say.

Consider the recent case of Republican nominee and Tea Party candidate Joe Miller of Alaska. In a move more typical of repressive regimes such as China or Iran, private security guards hired by Miller put handcuffs on a reporter who was trying to question the candidate at an event on Oct. 18 and placed him under citizen’s arrest.

“This kind of hooliganism and casual trampling of First Amendment rights from people who claim to embrace the Constitution as holy writ is symptomatic of a deeper problem,” Winship says in a recent editorial.

Meanwhile, reports of voter intimidation by poll watchers—mainly Tea Party supporters and ad hoc citizens groups—in predominantly Black and Latino neighborhoods are surging this election cycle. According to a recent New York Times article, “Tea Party members have started challenging voter-registration applications and have announced plans to question individual voters at the polls whom they suspect of being ineligible.”

Chad Dunn, general counsel for the Texas Democratic Party, recently told NPR that the most aggressive poll watching in early voting has been at Black and Latino precincts, which lean Democratic. “These poll watchers would follow a voter after they were checked in, hover behind them, try to look over their shoulder as they’re voting,” says Dunn.

“Scuffling with the press and others may seem minor, but it’s just the beginning,” Winship warns. “The only way to fight back against bullies and thugs is to stand up and tell them to go to hell. To do otherwise is to give an inch and prepare to be taken for the proverbial mile.”

Ask the White Guy: Why Do ‘Differences’ Matter? (by Luke Visconti)

Question:
When can this website focus on the good things that come out of diversity? As a manager, that is what I focus on with my diverse group—that includes those white male workers that are non-too-popular with this website. Come on—let’s get over this and start turning around the website to focus on the examples of working together! When someone joins my group, I don’t want an attitude that says ‘I am different and special – give me extra help to fit in’ – I want an engineer that says ‘how can I do my job the best and work with the team equally.’

Answer:
There are hundreds of positive articles on this website—and on DiversityIncBestPractices.com—about all the positive aspects of managing diversity.

As far as “working together,” isn’t the shoe on the white male foot since they occupy the disproportionate majority of power positions in this country? Take a look at the leadership of the company you work for: There are 20 people pictured on the “leadership” page. Fifteen white men, two Black men, three white women (no apparent Latinos or Asians). Your company’s board of directors is even worse—nine men and one woman. I checked as many photos as I could and they were all white (no apparent Latinos or Asians).

Forty-seven percent of people with bachelor’s degrees in the workforce are women. The freshman class for four-year schools is 38 percent non-white; for two-year schools it’s 47 percent non-white. Your company’s leadership is substantially less diverse than the workforce of the United States—now and especially in the near future. What does “working together” mean with numbers like this? Depends on who you are.

Yes, your company’s website has a “diversity” area, but it’s weak—no quote from the CEO, no statistics, antiquated programs. It leverages that wiggly phrase “inclusive,” which often appears on websites with no metrics. “Inclusive” is often a prelude to no accountability.

Your company is engineering driven, and I’ve heard the excuse about how few women and/or Black and Latino engineers there are. But there’s more Blacks and Latinos attending college every year—and women have been getting more bachelor’s degrees than men since 1980. Why would a successful woman and/or Black or Latino student go into your field? It’s 2010; nobody has to be a pioneer anymore. There are plenty of progressive industries to work for. I don’t see your company at any of the education-based philanthropies I’m associated with, including the schools where I’m on the board. I find it hard to believe that your company can figure out how to make missiles and satellites but can’t figure out how to entice college-bound women and/or Blacks and Latinos to take more math courses in eighth grade. Whether it’s intended or not, the sign on the door of your company reads “white men preferred, please.”

Why would your company want to do the extra work required to recruit underrepresented people? There’s an economic point to diversity. But you have to believe that people are created equally—and there’s nothing particularly special about white men. If you believe that, then the logical next step is to understand that all people are created equally—and talent is distributed equally also. This means that for every percentage point your company underperforms the available labor pool, your workforce quality is decreased. Logically, underrepresentation also erodes engagement, productivity and innovation of everyone not in the majority. Not doing the extra work to be representational is a death spiral in a country where white people will soon be less than 50 percent of the population.

Finally, as an individual with all the attributes you bring to the table, you ARE different and special—and so are we all. Companies that work on building relationships based on that mutual respect get people to work hard for them, get the best possible talent and elicit the best innovation. Think about it. All the special things about you—your race, your gender, your experience (“second-generation immigrant”)—all contribute to the way you look at approaching situations, evaluating solutions and solving problems. The more differences you cultivate, the better ideas you will receive.

Unfortunately, it appears to me that you represent the attitude of your company very well—arms crossed in front of your chest demanding that people live up to some sort of expectation about “teamwork” that you have, when your company’s record indicates that only certain people will receive the promotions and leadership roles.

Our nation’s culture has evolved to a place where the best and the brightest, including white men, don’t have to put up with that nonsense anymore.