Confrontation

Recognizing possible cultural barriers

Toxic work environments:

• Have you faced multiple experiences of discrimination that interferes with work?
• Do you struggle with knowing when to speak up or go to HR?

Microaggressions:

• Have you brushed off subtle actions or comments that are indirect (because it is not outright addressing your racial background) but can be inferred based on the context?

Constructive discharge:

• Have you experienced an increasingly hostile work environment or has your workload become increasingly difficult as a means to get you to leave on your own accord?

How to navigate those barriers

What are some things I can do when I am confronted with discrimination?

• Every once in a while you may be confronted with a situation in which a colleague, manager, or member of the company’s leadership team says or does something that is obviously discriminatory in nature. As uncomfortable as it is, a precedent can be made with such individuals by speaking up and letting them know that it is not okay to say or do so. It is important to keep in mind that others may have varying levels of self-awareness on how something may come off as discriminatory as they may not have had enough exposure to such incidents. Self-documenting the incident may be useful should such an occurrence happen again and could be useful if you decide to report it at a later time.
• A good rule of thumb could be to ask yourself if a comment or action is something you can address directly with the perpetrator either on the spot or on the side at a more appropriate time OR if the incident was invasive and persistent enough to create a hostile work environment.
• Unfortunately having a bad manager or having an unfavorable work environment may not always fall under the category of discrimination and/or retaliation. A toxic work environment can simply be a result of bad culture which is important to differentiate from an environment bred from discrimination.
• Since microaggressions at times may require nuance to detect, it can often be difficult to balance addressing the matter in a way that lets others know that it is an unwelcome and ill informed thought and/or action while also ensuring it doesn’t further create negative perceptions of being overly sensitive or over reactive. Additionally, the subtlety of these slights can be hard for your HR team to take action on. There is no one way to address microaggressions, however, in today’s social landscape there are many online resources that can be referenced to help in addressing this.
  • One example are some findings from a workshop conducted for medical students at Vanderbilt School of Medicine. This study recommends a framework response to microaggressions using the 5 D’s: Direct, Distract, Delegate, Delay, and Display discomfort.

What can happen if I report a claim of discrimination to HR?

• Discriminatory incidents are reportable to your HR team, however, it is important to understand how reporting the incident may prompt your HR team to take action. If the incident is severe enough that it creates an environment in which it is impossible to perform your essential job duties, your HR team has an obligation to investigate. Remember that confidential does not always mean secret or discreet, but rather shared with parties on a need-to-know basis.
• In some cases your HR team may not be able to take much action, other than possibly a stern warning to the perpetrator, if it is determined after the investigation that the incident was not invasive or persistent enough to follow through with further disciplinary action. Your HR team should at the very least have documented efforts of your reported incident and/or the investigation they conducted. This could come in handy later should an incident occur again with the same perpetrator, however, this is not something employees are permitted direct access to unless discrimination charges are brought up by your state government regulating agencies or by the court of law.
• If your HR team’s investigation has proven that discrimination has occurred, they may take disciplinary action up to and including termination based on the company’s disciplinary process. Companies are mostly obligated to follow their disciplinary process if written out and disseminated as a company policy. If no disciplinary process exists, the disciplinary action can then be at the discretion of the company.

How do I recognize constructive discharge?

• In some cases, it may seem as though your employer over time may facilitate an increasingly hostile work environment or may set impossible expectations and assign you a workload that is difficult or impossible to complete. This can often be used as a tactic to get you to leave the company on your own accord as a means to avoid finding a reason to let you go themselves.
• It could also be the very means they use to justify letting you go on the basis of increasing company need that you could not fulfill. Unfortunately, this sometimes could also be a means to avoid paying out a severance package should you choose to leave before a layoff or a reduction in force (RIF).

What are some things I can do before I think about pursuing legal action for discrimination against the company?

• If you strongly feel that you have been discriminated against because you belong to a minority group and would like to explore your options on how to pursue legal action, keep in mind that there are certain burdens of proof and timeframes you would have to adhere to in order to do so. In this case, it is highly recommended that you consult legal counsel. <add link to legal guide>
• Although you may be eager to quit your job on the spot, there are some final actions that may be worth looking into before you decide to follow through. One important action could be to make intentional efforts in letting your HR team know that you have legitimately experienced discrimination and to clarify with the HR team what actions they have taken to address your claims. In some cases, it may be beneficial to wait for the company to discharge you as being discharged can help make certain cases stronger, but it is best to consult legal counsel regarding this type of situation.
• You can look for legal counsel on an hourly basis, which can generally be the most expensive option. Alternatively, you can consult legal counsel, on a flat fee basis, and/or on a contingency basis where you pay a fee for the first few hours and the attorney keeps 30-60% of anything negotiated above the original severance amount.

What types of records should I keep or have access to?

• Additionally, this may be the time to save or take screenshots of any and all documentation you have collected regarding any incidents, conversations, contacts, and performance reviews that could help in presenting your burden of proof. If you feel that your relationship with your management team has already soured and you are anticipating your ultimate discharge, be sure to collect your documentation as soon as possible as it is a common practice for employers to lock or remove your access to any company property immediately upon delivering news of your termination to you.
• Be very mindful that proprietary and confidentiality agreements may limit the type of documentation you save onto personal equipment, especially if that documentation has company specific proprietary information. Should you send follow up emails to yourself or to your HR team to summarize the discriminatory interactions you’ve experienced, be sure to do so WITHOUT company intellectual property as use of company property can put the legitimacy of your documentation at risk. One way to do so is to bcc to a non-work personal email account to have proof that such an event happened.
• In most states, employees have the right to request access to personnel files and employee records kept on you by the company. If a written request is made to the HR team, there is usually a time limit (such as 30 days) in which the company must comply. In some cases, the way the personnel files are kept and the type of documentation kept can be in violation of compliance laws that are meant to serve as proof of fair hiring practices.
• Companies of a certain size or within a certain industry are obligated to maintain data and records of employee demographics. In many states you may be allowed to ask for access to these records which can often reveal disproportionate levels of hiring and retention practices. If you feel that this type of data may be strong enough to prove a disparate level of hiring and retention proportions, do your research of the types of reports you may request. Some reports include Environmental, Social, and Governance reports (ESG) and DE&I data.