Avoiding a Race-Based Discrimination Claim
In this case, there was a high performance organization that hired an African-American woman, Corinne. She interviewed well, was articulate, and her resume indicated she had the qualifications to excel at the position. However, it turned out that she did not excel at the job in this high performance organization, and I was brought in to extricate her.
One of the things I always try to help my clients achieve is a “high performance” organization. A common question is: How is this achieved? A more important question is: What is a high performance organization? I help my clients become a high performance organization through human resources system developments like job descriptions, performance appraisals, policy manuals, and compensation plans, Additionally, I help them become high performance through personnel changes. You may be tempted to think a high performance organization is achieved through improving efficiency — running lean and mean comes to mind. No doubt this is an important part of the equation. However, as a business psychologist, I see the employees as the bigger part of the mix.
Research by the Gallagher Organization has suggested that only 25 percent of the typical work force is engaged. This means that only this fraction of the employees in the typical organization are truly in tune with management’s mission, vision and values. These employees are the core group who can always be counted upon to produce and make things happen. They train the new people, carry the owner’s banner, and stick up for the company through bad times.
The second group, representing about 15 percent of the typical work group, is disengaged. These are the ones who actively work against management. These employees are disgruntled, negative, and act to undermine the organization. They will throw cold water on any idea and attempt to take new employees under their wings and corrupt them as quickly as possible. The last to convert to a new way of doing things and the first to complain, this group is made up of individuals who are usually very technically competent. The problem is that interpersonally they are incompetent. They get passed over for promotions but get to keep their jobs due to their technical knowledge. Management puts up with them, but if they actually knew how much undermining and damage this group caused, management would readily and willingly drop them.
The third group of employees is the 60 percent who are neither engaged nor disengaged. They do their jobs but usually not well enough or poor enough to be recognized. This group does not live to work, but rather works to live, usually doing their jobs and heading on home. Perhaps you could call them underachievers. They underachieve, in part, because they are not engaged but also perhaps because they have not been recognized and encouraged to achieve. People usually live up to or down to the expectations others have for them.
In a high performance organization, you would have zero percent of the work group in the disengaged category, no more than 15 percent in the middle group and the balance, approximately 85 percent of the work group, engaged. Imagine what it would be like in your work setting, without spending one more nickel on personnel costs, if 85 percent were engaged and nobody worked to undermine you? Imagine an organization where nobody is working against management and most people work at the highest levels!
My job in taking an organization to a high performance level is to help the business owner or executive expand the engaged group of employees. Sometimes the disengaged can be converted through counseling to become a part of the engaged group, which is a logical and preferable choice because there has been an investment made in all employees. The costs in time and money associated with recruitment and hiring are significant and must be considered. Additionally, it isn’t good to have a reputation of throwing away people as a first resort when encountering a problem.
More realistically, the best and most achievable outcome is to convert the disengaged to the middle group (neither engaged nor disengaged) and instill a disinclination to backslide. If they cannot be converted, my objective is to extricate them from the organization. This may sound cold, but in a business climate where you have to do more with less, all employees must be firing on all cylinders at all times.
After you build a high performance organization, the next objective is to keep it a high performance organization. My favorite personality theorist is Erik Erikson. He developed what he called the Epigenetic Chart of eight stages of personality development. The seventh stage is the place we spend most of our lifetime. Erikson titled this seventh stage “generativity vs. stagnation.” He said we are either generating or we are stagnating. We are generating our families, meaning the next generation, our careers, and our personal and professional growth. Or, we are stagnating. There is, for Erikson, no middle ground. Once we have achieved the high performance status, we have to keep achieving. I completely agree and believe in this saying: “Good, better, best, never let it rest until your good is better and your better is best.” Possibly annoying, but totally true. It’s how you become an achiever.
Think about entropy, an engineering term meaning anything left alone will break down. If you don’t replace the oil in your car, the oil in the engine will degrade, fail to do its job, and the engine will seize up. If you have a relationship with someone, and you don’t invest yourself in the relationship, the relationship will fail. If you are trying to go up a down escalator, you will ultimately go down. Because there are so many factors working against becoming a success, you have to move fast or even run to get to the top of the “escalator.” If you are standing still (stagnating), you will actually lose ground. Even if you are walking up on the down escalator, you are probably making no upward progress (stagnating). Only if you are moving fast or running will you get to the top (generativity). In a high performance organization, all parties from owner to vender to employees are running most, if not all, of the time.
Now back to the case. This was a high performance health care organization that hired Corinne as a mid-level technocrat. Although she wasn’t a professional like a nurse, physical therapist, or social worker, she still had an important job as an intake worker certifying that the patient coming into the facility was qualified under the Medicare program. Once the certification was made, the paperwork for Medicare reimbursements was completed and submitted. The paperwork and the process had to be completed correctly or the government would make no payments to the facility providing the care. It was very detailed, important, and exacting work. Her annual salary was $36,000.
Corinne was about 45 years old and happened to be obese. After about 30 days on the job, those who were training Corinne decided that she was just not getting “it.” After the sixth or seventh attempt to explain how the process for this and that was done and after fielding multiple requests for clarification of the same points, the orientation and training personnel determined that Corinne was too slow and not qualified to do the job. Being African-American and being obese had nothing to do with the fact that Corinne could not do her job. Remember, this was a high performance organization. People were moving fast, getting things done. In a different organization, there may have been more tolerance for a slow learner, but not here. When it became apparent that Corinne didn’t get it and couldn’t keep up, she became known as “Slow Fat Frita” behind her back. As cruel as this sounds, the reality is that it happens especially in a high performance setting where not only competence, but also speed is the expected norm.
The training and orientation lead worker, Susan, was a bit younger, perhaps 35 years old, and Caucasian. Remember, a lead worker is by definition an engaged person. Nobody should ever put a disengaged person in charge of training and orientating new people. Susan advised her boss that Corinne wasn’t getting it and recommended he get let her go. Susan’s boss, Michael, did not want to give up on Corinne. Time, money, and his credibility were tied up in recruiting and selecting her. Michael encouraged Susan to keep trying, but he was engaged in wishful thinking. Despite the interventions, Corinne was not able to do the job.
So, what did happen? Another month went by and Corinne fumbled and bumbled around the department. Her training mate, Susan, gave up on her and did the certifications herself. Engaged people don’t complain; they just pick up the slack. Corinne went to Michael and complained, “They won’t help me, don’t like me, must be because I am Black.” Oops — big problem. Now Michael has a potential race based discrimination allegation on his hands.
An allegation usually “screams” to be investigated. It is neither a truth nor falsehood unless it is investigated and either substantiated or overturned. I was called in to deal with the allegation. This was a little different from the usual situation in that I was not being called into the organization to “get to the bottom” of the allegation: to make a determination if Corinne was discriminated against because she was African-American. I was called in extricate her and avoid a legal battle.
Michael knew that Susan was a highly engaged person with great credibility. She was not prejudiced against Corinne because of her race but rather because she was too slow and basically incompetent at the job. He now knew he had waited too long to say good-bye to Corinne. Had he acted when Susan first alerted him to the problem and had he acted upon the recommendations of the trainer, he could have evoked his rights to terminate without recourse under the premise of probation. Now, with this allegation, he really had a mess on his hands by his hands.
Remember that Corinne was a two-month employee in this organization who was still on probation. A probationary employee officially has no rights and can be terminated with or without cause except if there is discrimination. An employee of only one day has the right to a workplace free of discrimination says the Civil Rights Act of 1964. If an allegation of discrimination on the basis of race, age, or gender could be sustained, in this case by Corinne, there could be a big, big payday.
The real problem is that Corinne could not admit that she was too slow and/or simply not able to do this job. Rather than admit that she had failed, she chose to blame her trainer and brand her as a racist. My job was to get Corinne out of the organization without a big, expensive fight. Even if this is my job, I still must investigate the allegation as an independent person and make sure for myself that there is no race-based discrimination involved.
My first meeting with the organization was with Michael and his boss, the CEO, where I received my overview of the situation and my instructions. I had worked for this client before and understood the situation pretty well. The CEO established the organizational climate or culture as that of “high performance.” It was clear that Michael needed to work on his interviewing skills, as well as trusting his trainer and acting on her recommendations.
The second meeting was with Corinne. After speaking with my client, I always speak next with the person making the allegation. In this case, I listened to Corinne’s story allowing her to tell it without being interrupted. I never communicate any judgment at this meeting — I just listen. It is very important for the alleged victim to have his or her say and feel validated. While I cannot validate the substance of the story because I have only started the investigation, I can and should validate his or her worth as a person by listening attentively and showing respect. In this case, senior management had drawn its own conclusions about what happened. My job was not to rubber stamp them but to try and corroborate their findings. Remember, when I terminate Corinne, I am taking on legal liability. I had to make sure for myself that Corinne was not discriminated against because of her race.
Following the interview with Corinne was one with Susan in order to hear her side of the story. She told me that she had shown Corinne how to complete the certification and had kept specific and dated notes. Looking into the micro aspects of the situation, it was pretty clear that Susan was a super-star producer and that she did not “suffer fools” well. She could spot a producer when she worked with one, and Corinne was definitely not in this category. Susan knew that there was a lot to get accomplished in an eight-hour day, and if you were a “chatty Cathy” or too slow, you would never get the work done and consequently drag the team down. She had Corinne pegged. I asked Susan to explore the matter from several points of view and to be completely honest and candid with me about the prospect of prejudice due to race. She denied allowing race into the equation. Thanking her, I told her I’d get back to her if I needed to speak to her again. Susan was very credible, but I knew I would have to speak with her peers to be sure.
I then got Michael to provide an organizational chart identifying the names and titles of every one of his direct reports. Armed with this, I had names and titles of others who might corroborate or undermine Susan’s statements. I spoke separately to four women, three Caucasian and one African-American who also had direct contact with Corinne. They all commented to me that she was slow. In response to a request for clarification of “slow,” they talked about Corinne’s physical movement as well as her comprehension of how the department and its processes worked. Their impression was that Corinne didn’t get things done correctly, even after having them explained and demonstrated several times over several days. Two of the four commented about Corinne’s proclivity to make chit-chat. They even thought that she tried to cover up her inability to understand things through excessive talking.
When asked if they liked Corinne personally, none of them said that they gotten that far with her. No one said that they didn’t like her, which was a very interesting point. In a high performance organization, liking a person doesn’t come into the picture until after the person’s productivity is obvious or proven. People are hired into an organization to produce or accomplish things. Correct?
In reality, we all have to earn respect, but we shouldn’t have to earn courtesy. Being treated with courtesy should be a given in a professional setting, but respect must be earned through one’s productivity or performance. In a high performance organization, courtesy sometimes is shorted a bit because productivity is so highly prized and prioritized. Only after productivity is established does the interpersonal domain come into play. High performance organizations can be described as “high task” and “low relationship.” Typical organizations strive to be “high task” and “high relationship.” Government settings are usually “low task” settings. We have all heard the expression, “Close enough for government work.”
I further asked these four employees, Susan’s peers, what they thought of her. I asked, “Was she fair? Had she ever talked about Corinne? What did she say about Corinne?” I asked if Susan ever used racial terms to describe Corinne and if Susan had ever used terms to describe anyone in racial or ethnic terms before.
What I learned was that Susan was a top producer — a no nonsense superstar. She knew everything necessary to operate the department and was a good trainer. She was not a racist and was known to be fair, but not tolerant of people who did not put 100 percent into their work. It turns out she was not considered a very sympathetic person — personable and with a sense of humor, but not sympathetic. One of her co-workers said to me that she was told (by Susan) “If you are looking for sympathy, it is in the dictionary, right there between sh*t and syphilis!” For Susan, work clearly was the priority. I could have interviewed other people outside the department to gain other insights into both of their reputations but decided against it as I did not wish to expose any of the parties to any further speculation nor did I want the rumor mill activated throughout the organization. I was confident that I had all the information I needed.
So now my investigation was complete, and I was convinced that the CEO and Michael’s confidence in Susan was warranted. I was also confident that Corinne was not discriminated against because she was African-American. When I reported my findings to Michael and the CEO, neither was surprised and both, especially Michael, were relieved to have my corroboration and support.
So, what happened next in this pursuit to a solution that would avoid a race-based discrimination charge? My first question to Michael was “Are there any steps you need to take to cover the absence of Corinne after she is gone?” This is an important question in most cases because the person being extricated is usually producing or accomplishing something, and those contributions need to be delegated to someone else. There must be planning done to ensure a smooth transition. In this case, since Corinne was a trainee and others were already taking up the slack, no delegating of her duties was necessary.
Michael would need to lock down Corinne’s remote computer access and hold a meeting with the others in the department to advise them that Corinne was gone. This would need to be done carefully because there were confidentialities to protect. Corinne had confidentiality rights, yet the staff needed to be told of the change. I coached Steve regarding what he should and should not say. If he violated her privacy rights, the costs to settle the case could rise dramatically. Embarrassing Corinne within the organization (even though she was leaving) must be avoided. An organization’s values are on display with every decision and act. Everyone was watching to see how Corinne would be treated. An organization is judged by how it handles tough situations.
The choices that my client faced were two: We could go with termination and face her recourse, or we could negotiate with her and create a structured exit. The organization could merely terminate Corinne using employment at will statutes. Most states have laws that say that employees are employed at the “will of the employer,” and if the employer wills to let them go, the employer can simply terminate them. This is a very weak defense for the employer to use because there are several protected classes of employees. Protected classes trumps employment at will in most cases. Using employment at will is like going into a gun battle with a small knife. The employer could also fall back on the fact that Corinne was on probation, which means that she had no rights to recourse. This too would be a weak argument because she had asserted race discrimination, which was a serious allegation.
There was legal recourse available to Corinne. As was mentioned above, she could file a charge with the EEOC or the State Human Rights Commission or file a case in civil court. She could badmouth the organization in its marketplace. She also has two years (the usual the statute of limitations on this kind of case) in which to exercise her rights to legal recourse. If you were the CEO, would you like this matter hanging over your head for two years? I wouldn’t.
Establishing a plan from the two alternatives and timetable for Corinne’s extrication was next. I met with Michael and the CEO to work out what the organization was willing to pay or provide Corinne to get her out. The first thing to consider is what would this mess cost the organization if it did blow up and go to litigation or an administrative hearing with EEOC? There would be legal bills from defense lawyers and settlement bills that could be fines to the EEOC or State Human Rights Commission as well as restitution to Corinne if she won the case. These things could add up to big dollars; it had the potential to be a $100,000 mess! Leaders of an organization usually have no idea of the storm they could be entering. They started to get the idea during this meeting with me.
My suggestion was for the organization to negotiate her exit strategy, which I would facilitate. What I suggested to the CEO and Michael was that we offer her a way out without resorting to litigation. I proposed that we offer her a deal. She could voluntarily resign and get something now, or she could be terminated now without compensation but possibly get something in the future through the recourses she had available to her. It was a small payday now with certainty and no fight or a big payday in the future with great uncertainty. Handled correctly, the former would be in Corinne’s interest.
I needed to get my “marching orders” from my client. I suggested a severance package. There are three models for severance:
- Most generous — 30 days pay for each year of service
- Least generous — one week’s pay for each year of service
- Most typical — two weeks pay for each year of service
Corinne had only been employed for two months so you might wonder what model made the most sense. I recommended that we offer her two month’s pay. While this amount was slightly higher than the norm, this case had the potential for huge expenses if it went to court. Any time you go to court on a race-based discrimination charge, it’s a battle of lawyers and a roll of the dice as to the outcome. Michael and the CEO really did not like having to offer her anything. Their question and the one everyone in this situation asks was, “You mean we have to pay her to leave?” The answer is actually yes and no. You are paying the employee to leave, but you are also paying him or her to waive rights to recourse. As distasteful as that notion is, it is cheaper than the cost of a legal fight. Sometimes there are considerations of providing access to health insurance continuation or other benefits. In this case, that did not come into play.
My clients did give me permission to offer the severance package of two months pay if necessary. Perhaps she would settle for less. I usually advise that we also offer a neutral reference and an agreement not to contest an application for state unemployment insurance. In this case, Corinne did not work at the job long enough to qualify for state unemployment insurance, but when applicable it is a good bargaining chip. Sometimes I suggest the employer offer to allow the exiting employee keep his or her laptop computer or cell phone. I did not suggest these in this case.
In terms of how this process would start, I suggested that Michael (since he is Corinne’s supervisor) and I meet with her. I never expect my clients to have to do much since they have hired me to handle the situation for them. The first meeting in this phase was for me to establish my role and for the client organization to formally notify Corinne that I had been selected and authorized to address this matter going forward. Michael only had to speak if there was some material or factual clarification needed throughout the rest of the meeting. Otherwise, he just needed to sit there and stay quiet.
The next step was to convey that the organization had decided to terminate the employment relationship and that we were sorry that things did not work out as hoped. I pointed out that the employer organization has the right to take this step. I did not go over the reasons at this point because that would only serve to “rub it in” and start things off on an adversarial basis. I stated only that the position or job was ending and never allowed this meeting to become a debate or leave the door open that something she could say would change the situation. The decision to end the employment relationship was final, and all that remained was how that end would be formalized.
I proposed an alternative to being terminated that would allow Corinne to exit with the dignity associated with not being fired, with the ability to seek the next job without a termination record, and with some assistance from the current employer. After I gave Corinne a document that delineated an agreement that would allow her to exit under more favorable circumstances than termination, I told her to leave for the day to read it. I assured her that she was not fired at this point and that this full day would be paid. I wanted her to go home, read the document, consider its contents, and meet with me within the next two days to discuss it. I further assured her that I would clarify all aspects of the document and answer all her questions and concerns. She was also asked to leave her personal belongings which would be secured, protected, and given to her later.
After asking for her key to the facility, I walked her to her car and asked her not to do anything “provocative” or say or do anything that might harm her position with the organization. She should not call people at work until she has had a chance to talk and we have reached our agreement. I told her that we will not say anything to her workmates yet, that we intended to be professional and honor her rights to privacy and confidentiality, and asked her to do the same. After exchanging phone numbers, I told her that we would make contact tomorrow and arrange to meet at a coffee shop convenient to her home. This gave her time to think about the document and absorb its meaning. Trying to accomplish all of this at that point would be impossible as well as unfair to her. She needed time to adjust to what was happening. Once more, I assured her that she would be treated respectfully and professionally and that everything would work out.
At this point, I went back to Michael to go over what happened. Looking back over the meeting, I asked him if he thought I handled everything professionally and treated Corinne with dignity and respect. This is never the time to be flip or to use humor. It is a critical time and needs to be expertly handled. Not only were we in the liability hot zone but the foundation for trust was being built between Corinne and me. She would not cooperate with me if she didn’t trust or like me. It also provided an opportunity to help Michael be proactive as I reminded him that his choices had brought him here. Had he made other choices, the costs to remedy would be far lower.
Corinne and I met in her home at her insistence even though I usually don’t like meeting in someone’s home — its too personal. Coffee shops or restaurants are better because people “behave better” in a public setting. When we met, she was polite and apologized for the state of the house. She said she needed to clean and polish silver, and this was a good opportunity to get it done. I looked at the pictures of her kids and husband trying to find areas where we could relate, and we talked for about 30 minutes about her adult kids and their challenges. We were both parents of adult kids and had similar concerns, fears, and frustrations, which allowed for a communication that was neither condescending nor manipulative. There was no hurry, more like a conversation between friends. It turned out that I actually found her to be a thoroughly delightful and nice person, someone I would enjoy knowing.
Steering the conversation to business, I told her that I did not feel that Susan discriminated against her for race-based reasons. From my investigation, it was determined there was no discrimination and I reminded her that the organization was an “all business” place, not wanting to using the term high performance with someone being extracted. It would give her the impression that she wasn’t high performance, and my objective was not to educate her on what she could have done or change for next time, but rather to get her to the point of voluntary resignation. This would not happen if I offended her or appeared to preach at her.
I told Corinne that the organization did not take the time to get to know her as a person. I am very careful not to “throw my client under the bus” at any time, but it is acceptable to explain that the clients are so focused on productivity that they sometimes miss getting to know people which is what happened here. I stressed that the organization just wasn’t that personable a setting, and she got caught up in a situation where the employer organization was just a bad match for her. It was something she could not have known when she hired on because the organization’s interpersonal dynamics usually aren’t discussed during an interview. I reassured her that being a bad match for the organization didn’t make her a bad person or the organization a bad place. The organization did not know her well enough to realize what a great person she was; it wasn’t their focus. My objective was to steer her away from taking this personally and being offended. There was little discussion about the agreement document during this first meeting. Instead, the conversation focused on answering her questions about the investigation and findings.
After 90 minutes, I called a halt to the meeting. There is a premise that I have always considered valuable: “The mind can only absorb what the butt can endure.” We set a meeting for the next day as the more time I spent with her, the more trust and relationship I could build. It was made clear that our objective would be to go through the agreement.
The next day, after a brief, friendly conversation, I asked if she had read and was ready to review the document. She answered in the affirmative to both questions, and we were off to the races. I went paragraph by paragraph, stopping after each point to explain it and check for understanding. In the document, it clearly stated that this was a “hold harmless” agreement. This meant that Corinne agreed not to exercise any of her right to recourse with prejudice. I made it clear that by signing the document, she was waiving all her rights to take any legal or public action against the organization permanently, and that this agreement was enforceable in a court of law. The agreement went both ways with the organization agreeing not to say anything bad about her or take any action against her. The agreement put the matters permanently in both participants’ rear view mirrors, which was the priority from my client’s point-of-view.
Imbedded in the document was the severance package but not the full eight weeks agreed upon by the organization. I held some back so that I could be “argued up” by Corinne. This is an important point in the negotiation; the person being extricated needs to feel like he or she got “the better” of the company. In reality, I rarely offer what my client authorizes me to pay so I can then “offer it up” later. I draw the process out so that I do not appear to be the one approving the counter offer, indicating that I will speak with the organization and get their reaction. While this slows the process down, it is an advantage in most instances. It shouldn’t be too quick or easy and must appear that I am dragging the extra money or whatever the person wants out of the former employer. This process earned me more credibility with Corinne that I was not only helping her but getting her a better deal. She felt like she had a victory. After each meeting, I called back to Michael or the CEO and provided a progress report and my opinion on the negotiation.
In the end, Corinne accepted the two months pay and signed the document, thereby closing the case. I guessed that she accepted this amount because she had only been an employee for two months. Her reasoning was that by accepting the job offered by the employer, she took herself out of the market and bypassed the other opportunities for which she was in contention. Maybe true, maybe not. By accepting the two months additional pay, it was like she was getting double: two months of work and two more months to cover her while she looked for a new job seemed symmetrical and logical.
For my client organization, it was a small price to pay (about $6,000) for avoiding a race based discrimination claim, and for Corinne it was vindication. It did not require her to face a fight that she may or may not have won. Sure, she might have won a big payday possibly two or three years down the road, but that would have meant two or three years of meetings, legal proceedings, and a significant amount of time dealing with the unpleasant past. Six grand now without a fight and without a potential loss in the case was attractive and clearly in her interest.
By the way, I had to take my check to the bank personally — it was too little to go by itself! Joking aside, my fee and the settlement to Corinne was a very small fraction of the amount that could have been spent on a legal battle.