A Legal Approach Toward Racial Justice: In Our Workplaces to Our Shared Spaces
We, Tom Scheuermann and Robert T. Carter, espoused a skeptical view about the state of race relations three years ago in our 2012 law review article on race-based traumatic stress in the workplace (webpage publications). We documented that while racial harassment and discrimination in the workplace was still occurring, and that many EEOC complaints and Title VII-based lawsuits had been brought to address it, legal redress for aggrieved employees of color remained a daunting and often futile proposition.
We point out that race is still very real and matters a great deal in the 21st Century. Recent events and racist comments, symbols and acts on college campuses, the weakening of voting rights, racial profiling in stores and other public places, and the deaths of minority men and women during interactions with the police in across the country; have heightened growing awareness of the persistent disparities in treatment of Blacks and Latinos by the criminal justice system; and continuing challenges faced by people in many walks of life, including employees provides ample evidence that race matters. We argued in 2012 that Civil Rights and anti-discrimination laws, as enforced (i.e. unevenly), were and are inadequate to address racial discrimination and harassment in the employment or other setting. We advocate for redress that uses both organizational and legal processes that deal effectively with the realities of racism in the workplace as well as the broader society. We advocate expanding an approach to legal redress that encompasses policies and practical steps; coupled with an application of broader legal strategies on the part of employers and employees that we called Shared Responsibility.
The Shared Responsibility framework is both a comprehensive and realistic basis for using existing discrimination and harassment laws to address incidents of racism. Building on the Shared Responsibility for the employment setting, we introduce a “Societal Responsibility” approach. We believe that this broader approach (as with Shared Responsibility) is not only legally defensible and would serve to reduce racial discrimination and harassment, but it provides a basic framework for collaboration across racial lines, different perspectives, and different levels of power in society.
When determining how best to prevent or respond to racist “acts” in the workplace, flying a confederate flag in public, or dismissing the impact of racial bias in public housing – we advocate using a negligence law standard: We do know, or should know by now that some of our practices and policies in fact constitute racial discrimination or harassment and that such experiences for targets can cause psychological and emotional injury, physical harm and trauma, even when they are not done intentionally. Recently, in racial harassment law, the U.S. Circuit Court of Appeals for the 4th Circuit ruled that even one racial slur may be actionable: The repeated use of a racial slur in an isolated incident can create a hostile work environment, the Fourth Circuit ruled en banc in May 2015.
Working together from a combined psychological and legal perspective, our work in the area of racial harassment and discrimination specifically demonstrates that harm can result in debilitating stress for people who have racial encounters that are emotionally painful – i.e. race-based traumatic stress (RBTSI) injury (See Evidence for Race-Based Traumatic Stress Injury –Blog this web page and publications).
Shared Responsibility in the Workplace
In the workplace context, we argued that a comprehensive framework for and approach to harassment and discrimination should address issues experienced by employers and aggrieved employees; and be viable for lawyers and judges as well.
Part of the approach to redress is legal, with four components. We noted that, if after exhausting internal procedures and an aggrieved employee might file a lawsuit, the course of legal action would depend on the specific situation and facts of the case, and could include one or more of the following causes of action: Title VII, Section 1981: Using federal law for cases involving severe and pervasive harassment or discrimination by the employer. Intentional infliction of emotional distress (IIED): Using state law; for cases involving extreme and outrageous behavior on the part of the employer, and/or their managers and supervisors, that is determined to be intentional. Negligent infliction of emotional distress (NIED): Using state law; for cases where it can be demonstrated that the employer had a responsibility to prevent and respond to harassment, and where their action or inaction resulted in the employee's injury. A "knew or should have known" standard, coupled with a determination of the proximate cause of the employee's injury, could be employed in these situations. Breach of contract: Using state law; for cases where it can be demonstrated that the employer did not follow the language of a contract or agreement with the employee, including the implied contract comprising employee handbooks and manuals."
We advised that, for employee-plaintiffs pursuing the causes of action above, legal counsel should check to determine whether state law, and other causes of action should be considered. Counsel should also be thoughtful about the timing and order of federal and state claims (if multiple claims are anticipated).
While the notion of race-based traumatic stress has been applied to workplaces most often, it has also been applicable to school settings, consumer racial incidents and profiling, housing discrimination and to child custody disputes.
We expand the Shared Responsibility approach beyond the workplace, and are adapting it to the broader societal context – to communities, police forces, housing authorities, health care organizations, and other entities that could benefit from this framework. Legal strategies for redress could of course still be employed as appropriate. Engaging in a broader Societal Responsibility framework is necessary, and could not only reduce racial discrimination and harassment, perhaps even more importantly foster the development of positive and productive relationships among all involved. Below are the elements of this framework: (1) Leadership – should listen to people in and outside the organization to learn how to be respectful and provide equitable treatment to all. This is based on the notion that change “starts at the top,” whether in a neighborhood, business, city, police department, or housing development. (1a) Hiring, the organization should look like the society in terms of demographic characteristics. It reflects how leaders use their power to impact people’s lives – particularly when leaders have the power to, use force, restrict liberty, or withhold economic benefits. (1b) Orientation and Training – all employees should learn the principles of respect and fair treatment, regardless of the employment settings. (1c) All should learn policies and practices that prohibit racial harassment, these should emphasize prevention, shared responsibility, prompt reporting of incidents, and prompt and thoughtful follow up to reports. (2) Risk Management – could apply across all settings; a practical and basic concern and one aspect of an overall approach; as risk is mitigated and managed, more positive and productive behavior is likely to result. (3) Diversity –being inclusive and promoting an appreciation for diversity in backgrounds and perspectives has been shown to positively contribute to all involved. (4) Professional Development and Training – continuing education and personal development and for shared responsibility will help to ensure that gains are made, and sustained. (5) Prompt Action on Complaints –leaders and those in power in particular should be open and available to complaints and questions – and act quickly to address them (6) Assessment– a policy alone, a one-time training, taking care of immediate and obvious issues can be helpful, but are not enough; as a society we must continue to assess the health and well-being of our communities, be honest about our shortcomings, and shape our approaches to meet and exceed the needs of all. (7) Reducing Societal Liability by increasing individual’s and communities’ satisfaction and productivity – Societal Responsibility is not just about taking care of those who are harassed or discriminated against, or who are less fortunate – it is about an ethic and approach that is inclusive and can benefit the whole.
A Societal Responsibility approach would go beyond traditional approaches – combining law and policy -- to address the uniqueness, complexity, and depth of race-based injuries that are experienced and documented in psychological research, regarding workplaces, organizations, and communities in the United States. We all know that similar injuries occur in other milieus such as housing, commercial establishments, and public spaces (“the streets”). This framework was developed to support people of all backgrounds in being free of racial harassment that pervades their work, schools, public spaces and other setting of daily living.