Race and the Workplace

By Lehr Middlebrooks Vreeland & Thompson, P.C.

June 25, 2020

Black Lives Matter was formed in 2013 after George Zimmerman was acquitted in the shooting death of Trayvon Martin. The killing of George Floyd and others has resulted in Black Lives Matter becoming much greater than the issue of law enforcement and race – it’s resulted in a reckoning of racial disparities in several regards, such as income, education and healthcare. Statues are coming down; names of forts, buildings and highways will change, and employers in all sectors have pledged financial support to address racial inequalities. Yet, the greatest responsibility for addressing racial disparities will be for employers to assess their policies and practices. Illegal discrimination is hard to prove. Thus, the absence of discrimination does not necessarily mean the presence of equal opportunity.

We by no means claim to be social scientists with a blueprint to address the scope of racial disparities. That said, we suggest employers consider the following:

1.    “Racial disparities in access to wealth and wealth building are compounded by a lack of access to paid family and medical leave,” according to the National Partnership for Women and Families (NPWF).
2.    NPWF’s research concludes that “people of color tend to receive lower quality health care services and experience worse health outcomes than white people, magnifying their need for paid family and medical leave.” Furthermore, “women of color suffer most from the combination of these disparities and challenges.”
3.    According to NPWF, “the vast majority of working people in the United States – 85% - do not have paid family leave through their employers, and the consequences for people of color are especially severe.”
4.    Rarely are factors employers consider for hiring and promotions found to be discriminatory, yet certain factors may be a barrier to applicants/employees of color. For example, is a college degree truly necessary for all jobs that require it, particularly for promotions? If appropriate for the job, consider “college degree preferred” or “college degree or relevant experience required.”
5.    Assess your recruitment practices – do they reach those of color?
6.    Consider adopting community work/study programs, especially at schools that are lower-income and/or primarily serve students of color. Wealthy and even middle-class children frequently benefit from having access to personal connections for job shadowing or (legally questionable) unpaid internships. Choose to formalize outreach to under-served communities and schools to extend the same access to others.
7.    If making a workforce reduction or calling employees back to work after the COVID-19 shutdown, what factors do you consider and how are employees of color affected? For example, if it’s seniority-based and that will result in a disproportionate adverse effect on race, consider whether a seniority-based approach is the only reasonable one. Are there other objective factors to consider which do not have such an adverse impact based on race? Remember, that however well-intentioned, quotas or targets for representation are not lawful.
8.    A leading plaintiff’s attorney calls employer equal employment/non-discrimination statements “pretty policies.” That is, they look good, but what does the employer do to be sure there is equal opportunity in training, mentoring and promotions?
9.    Make those who recommend candidates for promotion justify their choice. Were minority candidates considered? If a promotion is based on who applies in response to a posting, were employees of color encouraged to apply? To an employee of color, if the promotion decision-makers are white, the perception to the employee of color may be that he/she will not be seriously considered – even if that perception is wrong.
10.    Make a commitment to educate employees on and then stamp out microaggressions and implicit bias. Microaggressions include coded language or references disproportionately applied to people of color. A common example of this is the term “thug,” which is disproportionately used against Black people. Microaggressions also include small slights and increased questioning and skepticism about whether individuals of color or women “belong.” A well-known Black author who travels extensively (and who may have more frequent flyer miles than our own Richard Lehr) has reported that when she lines up to board a plane with her top-level medallion status, she is regularly questioned if she heard the call correctly. Calling the lone minority in a work group the “token” is another example of a microaggression. Even if the minority in question laughs at or even initiates this joke, this sort of language normalizes a mentality that the minority employee is not there because of his/her qualifications and also that other minorities “need not apply” because the quota has been filled. Employers need to acknowledge that minorities and women experience these microaggressions repeatedly and cumulatively throughout their lifetimes, and to seek to provide a workplace that is a relief from that constant needling.
11.    Review with leaders—from shift leaders up—the goals of diversity, outreach, conduct, and truly providing equal opportunity, especially for opportunities that aren’t subject to formal application or review, like cross-training, mentorship, overtime, and flexible scheduling to pursue outside education. Make everyone aware of and responsible for meeting these goals.

We look forward to working with you to address these issues constructively at this important time in our nation’s history.