February is Black History Month. Assigning a time period to recognize the integral achievements of African Americans originated in 1906 by Carter G. Woodson, the “father of black history.” At that point, the idea was to dedicate one week to celebrating and promoting the history of African Americans in schools and the greater society. However, it was not until 1976 that President Gerald Ford actually recognized Black History Month as a time to acknowledge the oftentimes undercelebrated (or completely ignored) contributions of African Americans to the United States.
The delay in recognizing Black History Month on a national scale is reflective of overall societal and social inequalities that still exist to this day. Multiple studies demonstrate that African Americans are still denied equal treatment in a variety of venues including the criminal justice system and income earning. Two recent lawsuits focus on inequality at work.
First, former Miami Dolphins head coach Brian Flores sued the National Football League (NFL) alleging discrimination on the basis of race. The lawsuit alleges that even when the NFL would hire African American head coaches (a rarity) they subjected them to different compensation and conditions of employment than White head coaches. The lawsuit also joined 29 other parties (including the Dolphins and Giants) as defendants.
Second, the state of California recently sued the auto giant Tesla for racism and harassment stemming from practices at its Fremont, California plant. The lawsuit alleges that vicious hate speech and unequal treatment were applied to African American workers, including a requirement that African Americans scrub factory floors on their hands and knees. The state further alleged that employees who lodged complaints to management were retaliated against.
Both the NFL and Tesla have previously been vocal about treating African Americans equally. However, these lawsuits show that there are still significant issues. I recommend that employers consider the following tips in an effort to curtail discrimination at work and potential legal exposure:
- Create (or reemphasize) a clear no harassment policy. Racism is unfortunately still an ill in our society. However, employers have the authority to absolutely prohibit it – and any related harassment – in the workplace. Creating a clear policy that designates that harassment or discrimination of any kind (including “jokes”) is prohibited sets the tone for an organization.
- Consistently publicize reporting mechanisms for harassment complaints. Many employees who are discriminated against fear reporting the harassing behavior – or simply are not aware of the correct avenue to pursue. Ensure that your organization (no matter how big or small) has a clear reporting policy and investigation procedure that is regularly publicized. Trainings highlighting the policy help management nip issues in the bud before they explode. Employers should similarly enforce a clear “no retaliation” policy and train management on the importance of equal treatment even during tense investigation periods.
- Consider Diversity and Inclusion initiatives. Flores’ lawsuit highlights that an appearance of equality is not the same as actual equality. Diversity and Inclusion initiatives can help “bridge the gap” between an employer’s stated goal of being more inclusionary and being more inclusive. Legal counsel can assist with vetting/ensuring that an initiative that you are considering is consistent with employment laws.
Feel free to reach out to me to discuss.
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Theodora Stringham assists individuals, businesses, and organizations with growing successfully while minimizing liability. Focusing on real estate and personnel needs, Ms. Stringham executes sustainable plans for real estate development and employee matters. She provides comprehensive representation for everyday growth issues, including, but not limited to, re-zonings, site plan approvals, eminent domain/valuation concerns, employment discrimination, and disciplinary issues. Ms. Stringham’s scope of representation ranges from identifying potential liability and providing counseling/trainings, all the way through representation at trial.
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