How Employment Discrimination Is Like Food Poisoning

By Jenifer Grady

At the 2005 ALA Annual Conference, two noteworthy events happened. The first was that the ALA Office for Diversity and ALA-APA hosted a program called “ How Do I Know It’s Discrimination?: Recognizing and Resolving Discriminatory Employment Practices in Libraries.” The second was my contraction of food poisoning. As I prepared to write about the program, I realized that there are similarities between the two. The program featured a panel discussion and an engaging conversation about a discrimination scenario, for which the audience was asked to take either the perspective of the employee who felt employment discrimination had occurred or the employer who felt that nothing untoward had occurred. The expert panel included an employment attorney, two Human Resources specialists, and one of our colleagues who is currently embroiled in a discrimination lawsuit.

Laurie Wardell, J.D., is Director of the Employment Opportunity Project of the Chicago Lawyers’ Committee for Civil Rights Under Law. Sharon L. Tufts is the Head of Human Resources at the Cleveland Public Library. Julius Rhodes, SPHR, is an HR consultant and founder of the mpr group, based in Chicago. Desiree Goodwin is a librarian who has been prominent in library and national news for her suit against Harvard University, alleging race and sex discrimination after being denied more than a dozen professional promotions.

The panelists shared expertise from their particular perspectives on employment discrimination. After the panel presentation, audience members reviewed a complex scenario riddled with gray areas that demonstrated how nuanced and difficult allegations of workplace discrimination can be. There was a lively debate as both sides of the argument held on to viewpoints and justifications. It was apparent that for many audience members this was more than just role-play as individual after individual risked sharing personal experiences. As Tracie Hall, Director of the Office for Diversity, remarked after the program, “Some attendees came to the program because they sincerely feel they have been discriminated against, others came as employers and managers trying to curb problems before escalate, and still others came because they recognize that learning more about this topic is a key part of personnel management.” Regardless of the motivation, there were tools and revelations from this program that will be useful resources.

In many ways, employment discrimination is like food poisoning. They both start with a feeling. Actually, even before the feeling, you usually have a sense of goodwill. At work, you anticipate being judged fairly by the criteria presented and documented at your hiring or promotion. You believe that you are bringing a set of skills that will satisfy the requirements of the position. You accept the position and its responsibilities. At mealtime, you anticipate the smells, textures, and tastes you’ll enjoy. In a restaurant, you expect that you will be treated respectfully and will be served a tasty meal prepared in a hygienic manner. You make a reservation, if required, and bring your appetite and a form of payment. Julius recommends that you begin an employment journal on your first day of work to be prepared, since “discrimination can occur at any time.” He is not advocating paranoia, but preparedness. He also is a proponent of discussing with your supervisor and colleagues what conditions makes you work better – quiet, music, frequent walk-around breaks, no strong food or perfume smells – at the beginning so there are fewer surprises.

After you’ve done your work for a period of time, you may get a feeling that something isn’t right. It may be a nudge from your subconscious or butterflies when a certain person interacts with you, or a general feeling of doom. It may be the result of something overt, like a comment, or covert, like a perceived behavior change. After a meal, you may acknowledge that eating potato salad that was sitting out for 6 hours was not the smartest thing you could do.

In both cases, the natural reaction is to wait. You might mention the cause of your dis-ease to someone, but you wait for the situation to resolve itself. And sometimes it does resolve itself; at other times, it might linger or even worsen. Now you have to do something; you have to engage yourself. You may ask yourself or another colleague (fellow diner):

• What can be done to alleviate this situation?

• What can be done to ensure that this doesn’t happen again?

• Who is to blame for it happening in the first place?

Timing is very important. You think back, you test, you document, and you draw conclusions that will either lead to action or inaction. For employment discrimination, you must ask yourself if you are a member of a protected group. You must ask yourself whether the words, behaviors, or attitudes are a result of or can be attributed to your membership in that group. Was the negative action based on your age, disability, gender, language, marital status, national origin, religion, or sexual orientation? Have you observed others who seem to be similarly categorized being treated in the same way? Rhodes and Tufts observe that friction in the workplace is to be expected because it is “mixed company.” There are differences, or characteristics that Goodwin says lead to “hypervisibility” in most workplaces.

In the food poisoning scenario, you might write down what you had eaten in the past 24 hours and propose the most likely source of your digestive discontent. If you had to go to the hospital, you might ask them to perform tests to help you narrow down how you were contaminated. Blood and other tests could help pinpoint whether it was the pizza from lunch or the seafood from dinner. You don’t want to accuse the wrong restaurant of wrongdoing. Was it food that wasn’t cleaned, prepared, or stored properly? Was it a new allergy? Food poisoning, like discrimination, is difficult to prove. Proving both the fact that it occurred and the causation can be daunting. Wardell says that the quantity of information needed to bring forward a case has grown tremendously over the last decade. Again, finding out whether you were the only or the one of many who has experienced this treatment may either help or hinder your case, depending on the strength of the opposing side’s argument.

One way an employer can create an atmosphere that minimizes the number of employees who feel mistreated is to be consistent. Tufts and Rhodes recommended that managers in the audience treat people equitably, from the moment they are recruited. An employer who can show attention to consistency, accuracy, and equitability will be a fierce opponent to a discrimination claimant. Job descriptions should be accurate. Salaries and benefits should be administered and distributed equitably. Employment policies should be current and include the date when they were last revisited, even if no changes were made. Even when one is not hired, the employer should communicate the decision to go with another candidate and be civil. Staff should have orientation and be trained in how best to implement, follow, and benefit from employment policies. The same can be said for restaurateurs. Be consistent.

After all, Laurie reminded us that the employer is sometimes liable for the actions of employees against other employees. This is the case when an employee is harassed by a supervisor and there is an economic action accompanying the harassment (loss of promotion, salary reduction, etc.). Economic consequence is a serious consideration by the Equal Employment Opportunity Commission (EEOC) and the courts. Did the action actually cost you financially in any way?

Once you decide you want to go forward with a claim, review your employment policy manual. Sharon Tufts said there should be a formal process for filing claims that should be communicated in your manual or be publicly posted. She and Mr. Rhodes advised the audience to be mindful of the credibility of your employer, how confidentially the claim would be handled – meaning only those who are involved should be aware of the claim and invited to the discussion, whether the human resource department keeps you informed of the progress, and whether you are included in the creation of an amenable solution. The human resources manager should not presume to know the best resolution.

If you are reasonably certain which food upset you, you may wish to write a letter to the manager, carbon copying the owner or regional manager, if appropriate. Your letter would include what happened and the restitution you expect (reimbursement of meal cost, a free meal, reimbursement of medical expenses, etc.).

If the claim is not resolved by your employer, or you do not feel comfortable submitting the claim to your employer, you might proceed to contact the EEOC for mediation. The EEOC has definite dates for filing and responding to claims, based on the date of the incident. The EEOC has field offices (http://www.eeoc.gov/offices.html) and a structured process for filing claims (http://www.eeoc.gov/charge/overview_charge_filing.html). No such office exists for food poisoning incidents, though the U.S. Food and Drug Administration is interested in major outbreaks. (This is the official end of food poisoning metaphor since it’s up the manager’s good will, legal department, and the insurance companies representing the restaurant at that point).

Desiree Goodwin shared her own compelling story with the audience, culminating with her battle with Harvard University. After years of living with perceived inequities in her library, she went beyond human resources and the EEOC to file a lawsuit. This is a serious decision and one that should only be made after deep reflection because, as Rhodes pointed out, ”a lawsuit is for life.” Shortly after completing her MLS in 1999, Goodwin began applying for professional level positions and was rejected without an interview for 15 entry-level positions, though she has an additional Masters degree and greater seniority than colleagues who were hired or promoted, at Harvard University where she has worked for 11 years. Despite her credentials, Goodwin has remained in a library support staff capacity. Desiree Goodwin sued for race and sex discrimination in Federal Court in Boston, after receiving the right to sue letter from the EEOC, and lost her case in April of 2005. The right to sue letter comes if the EEOC does not make a determination.

Goodwin feels her persistence in applying to various librarian positions at Harvard worked against her. She has worked as a support staff in the library for more than a decade, and tailored her MLS coursework to her positions at the libraries, yet she has not been interviewed for positions or has not been hired in lieu of candidates that she believes were equal or less qualified. Desiree remarked that she sensed that she would have been better off working to “achieve” a level of mediocrity in order to be accepted in her work environment. She also feels that her gender has been a disadvantage, and that it has been compounded by race. The daughter of a White mother and African-American father, she is a light-brown complexioned woman who feels that race, racial ambiguity, dress and other aspects of appearance have been used to both categorize her and limit her professional mobility.

The audience seemed captivated by all of the panelists and what was conveyed struck a chord with some who recounted their own suspicions of discrimination. The panelists offered suggestions, and ALA Office for Diversity and ALA-APA handed out a resource guide with the same title as the program.

Following the panel discussion, the audience was asked to stretch their legs and their minds as they resituated into two groups. Hall opened this portion of the program by reflecting that even in the library world where premiums are placed on freedom of expression and access, we still experience dystopic moments around those same two issues.

After the break, the audience read a fictional scenario about an employee who might have been discriminated against by his supervisor. There were some interesting reactions. It was difficult for those charged with acting as the employer to take on that persona. Every few moments, someone would shout, “But we’re supposed to be the employer,” because sentiments would inevitably slide towards the employee. No one was comfortable assuming responsibility for the actions of the employer, as if it would taint them or carry beyond the room.

Another reality in this case and employment discrimination claims in general is that there is often missing information and what is there is colored by a particular viewpoint. Yet a decision must be made.

The absence of a witness was disconcerting to many of the participants on both sides. What if you are the only one and it’s your word against theirs? One person raised the question of when a third-party wishes to pursue a claim on behalf of the injured party, because the injured party is fearful of retaliation or unconvinced that the claim is necessary. Wardell and Rhodes relayed that some states have laws to protect third-parties who wish to begin proceedings on behalf of someone else. Whistleblower legislation protects them against retaliation by employers.

The final note was the assumptions that were made about the appearance, personality, and credibility of the players in the scenario. Although few cues were given, people quickly formulated a visual image of the characters. Wardell acknowledged that this is a human reaction, the tendency to project our own understandings and previous experiences onto others. Wardell shared that when she unconsciously does this, her teenage son, anxious to call out any parental error, gleefully reminds her “that’s stereotyping mom!” To remind each of us to be viligilant against allowing unconscious stereotyping to become discrimination in the workplace is why this program was organized. Judging from the stories shared and the feedback given, we can all benefit from a little calling out every now and then.

This article does not constitute legal advice. Please seek the assistance of your human resources specialist, the local Equal Employment Opportunity Commission or an employment lawyer.

The author thanks Tracie Hall.

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