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| Vernellia Randall Professor of Law The University of Dayton |
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Joe R. Feagin, Kevin E. Early
excerpted from: Joe R. Feagin, Kevin E. Early and Karyn D. McKinney, The Many Costs of Discrimination: the Case of Middle-class African Americans , 34 Indiana Law Review 1313-1360, 1328-1334 (2001)(186 Footnotes)
I. Integration and a Hostile Racial Climate One might query what is the legal and constitutional relevance of our research about the consequences and effects of everyday racism. We argue here that many U.S. workplaces cause great harm to black workers, and probably to other workers of color. Although the legal standard for proving a "hostile work environment" was originally extended from racial discrimination cases to sexual discrimination cases, the courts have thus far not allowed the kind of evidence to demonstrate a hostile racial climate that is currently allowed to demonstrate a hostile sexual climate. In Faragher v. City of Boca Raton, the Supreme Court observed: "Although racial and sexual harassment will often take different forms, and standards may not be entirely interchangeable, we think there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment." At this point in time, although the legal standards are ostensibly the same for proving hostile racial and sexual climates, the courts tend to be more lenient in the evidence they allow to prove hostile sexual climates than they are in the case of evidence for proof of hostile racial climates. This tendency for leniency may be due in part to the fact that while two female Supreme Court justices (particularly Ruth Bader Ginsberg) actively rule to protect the rights of women, and in so doing set legal precedents for the lower courts, African Americans have no strong voices or allies on the high court. Only Justices Ruth Bader Ginsberg, John Paul Stevens and Stephen Gerald Breyer have sometimes acted as "allies" to African Americans in their decisions. Justice Clarence Thomas is the only person able to know first hand what it is like to be an African American, but as yet he has failed to strenuously represent the needs or protect the interests of African Americans. We see no reason that this workplace standard should diverge, for, as we show below, many workplaces can be very hostile and damaging for African Americans. Not only is workplace integration a potential cause of stress for African Americans, they are also not adequately protected by the law in these often hostile environments. In 1993, in Harris v. Forklift Systems, Inc., the Supreme Court decided that a victim of sexual harassment did not have to prove "severe psychological injury" in order to be compensated for sexist discrimination. Writing for the majority, Justice Sandra Day O'Connor made it clear that a hostile sexual climate could be demonstrated by evidence of a string of humiliating actions or offensive comments by an employer whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Thus, the court determined that a single major act of discrimination is not necessary to prove sexism in the workplace. Continuing patterns of minor acts are sufficient. In contrast, in cases alleging a hostile racial climate, African Americans and other people of color attempting to remedy racial discrimination in the workplace are subject to a much more stringent burden of proof. Moderately derogatory racial comments made over time are generally not enough. Under the Harris standard, harassing conduct need not have caused serious psychological distress, but it had to be "severe or pervasive enough to . . . alter the conditions of the victim's employment." A distinction was also to be made between physically threatening behaviors and "mere offensive utterance[s]." In Faragher, the Supreme Court further clarified this standard, explaining that the Harris factors should serve as a filter to eliminate complaints regarding "ordinary tribulations of the workplace" such as "occasional teasing." The Second Circuit was correct, according to the Faragher Court, in holding that statutory relief should not be given for "episodic patterns of racial antipathy," but only for "incidents of harassment [that] occur . . . with a regularity that can reasonably be termed pervasive." Thus, under Faragher, it is left up to the courts' discretion to decide when a company or defendant should be held liable for allowing a hostile environment to exist. It is also up to the courts to determine when that hostile environment is "pervasive as to alter the conditions of the victim's employment." Often what may be a hostile racial environment to most people of color is not regarded as such by courts on which Americans of color are not significantly represented. As presented in our data below, many middle class African Americans report work environments where harassment and discrimination reshape the conditions of work. In one 1996 case, Aman v. Cort Furniture Rental Corp., the U.S. Court of Appeals for the Third Circuit decided that white supervisors and coworkers' repeated use of terms such as "another one," "one of them," and "poor people," in referring to two black employees constituted racial "code words," which created a "complex tapestry of discrimination" for which the company was liable. The court recognized that subtle discrimination is constituitive of a hostile workplace. The standards the court asserted for proving a hostile workplace were that the employee suffered intentional discrimination, that the treatment was pervasive and regular, that the discrimination detrimentally affected a particular employee, and that the discrimination would also detrimentally affect "a reasonable employee in a similar situation." These four standards are similar to those set forth in the hostile sexual climate cases. Most recently, however, it seems that the courts are backpedaling on issues regarding racial discrimination. For example, in a case heard in the California Court of Appeals, Etter v. Veriflo Corp., frequent racist epithets directed at a black man were not "severe or pervasive" enough to warrant legal remedy. Etter alleged that his supervisor directed toward him and other black employees racially derogatory terms, among them "Buckwheat," "Jemima," and "boy," and that she mocked supposed black pronunciation of certain words. However, the court asserted that Etter was referred to as "Buckwheat" by his supervisor "only" twice, and also noted that Etter could not remember the precise dates when his supervisor called him "boy." Further, the court opinion referred twice to the fact that Etter laughed at the racially insulting comments of his supervisor, implying that the negativism of racist comments was only "in the head" of the victim and thus legally benign. In fact, Etter may have laughed nervously or only in an attempt to get along with his boss at the time, a common report of black employees. The Etter court reaction reminds one of Justice Henry Brown's opinion Plessy v. Ferguson: We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. Here the Chief Justice and his associate judges, all white, explicitly say that it was only Plessy's perception that he faced humiliating segregation. As the white justices saw it, any feelings by Plessy or other African Americans that whites saw them as inferior were just in their heads-a classic example of blaming the victim, highlighting the pervasiveness of extreme antiblack racism at the turn of the century. The Etter court implied a similar view of African Americans' experiences with discrimination in that they found it relevant to their decision that Etter had previously filed discrimination charges against another employee. The likely reason for the court to mention this fact was to imply that Etter was overly sensitive, or "paranoid," or was using his racial classification for the financial gain that might be won through a successful discrimination suit. The jury in Etter was instructed to consider whether "a reasonable person of the Plaintiff's race would have found the racial conduct complained of to be sufficiently severe or pervasive to alter the conditions of the person's employment and create a hostile or abusive working environment." However, one may question whether a predominantly white jury, or a white judge, is able to determine what is "reasonable" for an African American plaintiff. Social science research has shown that very few whites have any significant understanding of the depths and severity of the everyday racism faced by the majority of black Americans. The Etter court, in deciding that the plaintiff's experiences were merely "episodic," and not "pervasive," may have failed to understand the severity and impact of those experiences for black employees. One might speculate, based on the relative success of such cases regarding gender, that had Etter been a white female charging a sexual hostile workplace environment, the same number and severity of comments might have been enough for the court to find for the plaintiff. We will discuss possible reasons for this "selective sympathy" later in the paper. In this Article we show how damaging the racial work climate can be, and why the courts need to take African American reports of a hostile racial work environment seriously. African Americans and other plaintiffs who allege discrimination must show how their workplaces actually do harm. Here we provide some clues on how to gather and present such evidence. The type of evidence we have gathered clearly shows how and why workplace climates can be hostile. Racial integration has not worked well for African Americans, as evidenced by the continuing huge inequalities in income, education, and life expectancies between African Americans and whites. On the average, black families have an income of only about sixty percent of that of white families and family wealth is only about ten percent of that of white families. Additionally, on average white Americans live about six to seven years longer than black Americans. A major problem with racial integration, as it has operated so far, is that it has mixed varying numbers of people of color into predominantly white institutional settings without giving them enough power to alter those settings or enough resources to significantly improve their material standards as a group. As it is practiced and implemented, racial integration in the workplace has caused many black Americans much anger and pain. Roy Brooks has documented the limitations of current integration, suggesting that African Americans might do better to practice "limited separation," for their economic, physical, and psychological well-being. Racial integration, as it has been implemented in U.S. society, is at best, one-way assimilation into a white-framed culture and institutions. This haphazard mixing is not the appropriate standard for racial integration designed to undo past wrongs. In order to have real integration rather than one-way assimilation, African Americans and other people of color must be given the same opportunity as whites to change the contours of the workplace by their presence in it - hence requiring two-way (or more) assimilation. At the very least, they must not be required to become "whitewashed" and thus to give up significant parts of their identity in order to be accepted as coworkers, employees, and supervisors. Recent cases involving language issues for Latinos illustrate that these Americans of color are willing to make some concessions to be integrated into workplaces, but not to give up their language-a critical carrier of their culture-just because whites arbitrarily insist that they do so. The parallel question is how much should African Americans have to give up in order to assimilate to historically white workplaces and other institutional settings? Clearly, they are willing to make concessions, but not to suffer nearly as much as they must under current circumstances. The goal of real integration is much more than one-way assimilation into the workplace. As we see it, the goal should be two-way accommodation. Whites need to make major adaptations to those entering their institutions. They need to allow full incorporation into the workplace and give up racist practices, including the many practices that create a hostile climate. They need to change the number of employees to create a critical mass of African Americans and other workers of color. In defense of the critical-mass argument Richard Delgado posits that middle-class African Americans, because they are often alone in their workplace, are by necessity one-way assimilationists. Because of their small numbers, African Americans often have little power to change the culture of the workplace and thus create two-way integration. Most of our study participants are among the most economically successful middle and upper-middle class African Americans. These middle-class African Americans have often been viewed as having achieved the American dream like the middle classes of white ethnic groups before them. Ironically, integration into the white workplace has in many cases created stressful situations for African Americans. For example, many of the first African Americans to integrate white workplaces were assigned to racialized jobs, such as positions as "community liaisons" or heads of affirmative action compliance departments. In these positions, they served to calm the potentially disruptive African American communities of the late 1960s, and many have been subsequently unable to move out of those jobs. Accordingly, because the African American middle class was to a significant degree politically facilitated, it is vulnerable to political changes that make economic attainment more difficult. For individual middle class African Americans, workplace integration may be accompanied with forced assimilation, everyday discrimination, and the sense of being constantly watched and outvoted. Indeed, workplace integration has currently been primarily one-way-African Americans and other people of color have been required to accept white norms without being given the power to affect the workplace culture. Nathaniel R. Jones, a judge in the 6th Circuit Court of Appeals remarked that it seems that Justice Harlan's statement in his dissenting opinion in Plessy, that "justice is colorblind," is now being used against African Americans. Several legal scholars have suggested race- conscious ways that standards might be changed to make it easier to show the damage caused by hostile racial workplaces. Barbara Flagg has discussed a situation that exists in predominantly white workplaces which she calls the "transparency phenomenon." Because whites are generally unaware of race, they are not conscious that decision-making in the historically white workplace that appears "neutral" often benefits whites and disadvantages people of color. We suggest that this type of discrimination, which automatically advantages whites and disadvantages people of color but is nonetheless thought of as "neutral standards," is better referred to as "woodwork racism" because it is not transparent. Rather, it is commonplace, tough, and real. Flagg suggests that instead of a disparate treatment test for racial discrimination, which relies on proof of intentional discrimination, courts should consider finding employers liable for failure to create a culturally diverse workplace environment that imbeds the sometimes divergent norms of newly integrated groups. Flagg suggests two possible new standards, a "foreseeable impact" approach and an "alternatives" approach. Both approaches would make it necessary for courts to consider the transparency phenomenon in deciding what constitutes a racially hostile workplace. Flagg advocates the alternatives approach, in which a historically and predominantly white workplace likely means white norms of decision-making, and thus requires strict judicial scrutiny. The employer is then responsible for explaining the criteria used in the particular workplace standard that led to the suit, after which the plaintiff may propose alternative criteria that would not have a disparate impact on the employee of color. Another race-conscious solution to the difficulty of proving a racially hostile workplace has been suggested by Charles Lawrence III. Lawrence asserts that the courts' reliance on proof of intent and a show of individualized fault should be replaced with a "cultural meanings" standard. Such a standard would take into account the unconscious and half-conscious discrimination practiced every day by whites who have grown up in a racist society. Lawrence advocates that legal scholars might look to social science research to offer evidence of the racially derogatory cultural meanings of seemingly "neutral" acts. Although he admits that his approach will not be readily accepted and easily applied, and that it is optimistic in its challenge of commonly held beliefs, Lawrence's insights might be useful in creating a new standard for judging the "reasonableness" of African Americans' complaints of discrimination in their workplaces. Their longterm experience and collective memory must be factored into any meaningful legal approach that tries to judge hostile racial climates. This Article contributes to the creation of this new standard by describing the character and impact of hostile workplace environments endured by many middle class African Americans, and the severe physical and psychological effects this workplace climate can have on their health and well- being. Some of the most harmful treatment by white perpetrators that is described by our respondents may be half-conscious or even unconscious. In line with Flagg's transparency phenomenon, it is our suggestion that, until true racial integration is attained in predominantly white workplaces (with its impact on white attitudes and behavior), most of these places have the potential to be hostile to black Americans and other workers of color. The transparency phenomenon should also be applicable to the judicial system, which ordinarily and routinely operates according to white norms due to the predominance of white judges, prosecutors, and juries in most court systems. For example, a recent Amnesty International report on the U.S. justice system reported that in 1998 almost all (1,816 out of 1,838) of the district attorneys and similar officials with the power to make decisions about the death penalty were white. The report also cited evidence on the use of peremptory challenges by prosecutors to keep juries as white as possible. Flagg does not believe that transparency applies to "maleness" as it does to "whiteness" in the workplace. This could perhaps be part of the reason that women have been more successful in proving hostile sexual workplace climates in the courts. Almost every white male judge and jury member has some close contact with a woman, whether she be his mother, daughter, wife, or friend. Thus, most will have some idea of what a "reasonable woman" might find offensive, as well as some sympathy toward a white woman. However, evidence of racial hostility in white workplaces is also usually assessed by white juries and judges, and that evidence is often considered to be merely the "perceptions" of "oversensitive" African Americans. Thus, the test presented by the courts, in which the standard of "a reasonable person of the plaintiff's race" is invoked, lacks meaning. Most white people have very little understanding of what African Americans' experience in white workplaces is like. The purpose of this Article is to contribute to a more race conscious standard for assessing the damage often done to African Americans in white workplaces.
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