On racism and bias: Research confirms that Rodgers & Hammerstein got it right

In the aftermath of the Charlottesville, Virginia, white supremacist rally, the Washington Post‘s William Wan and Sarah Kaplan set out to learn about the science behind racism and bias. Here’s an answer from one social psychologist they interviewed:

“In some ways, it’s super simple. People learn to be whatever their society and culture teaches them. We often assume that it takes parents actively teaching their kids, for them to be racist. The truth is that unless parents actively teach kids not to be racists, they will be,” said Jennifer Richeson, a Yale University social psychologist. “This is not the product of some deep-seated, evil heart that is cultivated. It comes from the environment, the air all around us.”

And here’s more from another psychology prof:

“An us-them mentality is unfortunately a really basic part of our biology,” said Eric Knowles, a psychology professor at New York University who studies prejudice and politics. “There’s a lot of evidence that people have an ingrained even evolved tendency toward people who are in our so-called ‘in group.’”

But how we define those groups, and the tendency to draw divisions along racial lines, is social, not biological, he added. “We can draw those lines in a number of ways that society tells us,” he said.

…“The most likely predictor of that is exposure to a kind of ideology,” Knowles said. Most if not all people carry implicit biases and unexamined prejudices, he said, and some may harbor feelings of fear or resentment that they don’t express in public.

These insights are important, and kudos to these reporters for presenting a scientific perspective on the racism that motivated this horrible event. As helpful as this research is, however, it only reaffirms what some folks have known for years: That bigotry and bias are taught and reinforced by society.

In fact, if you want a more pop culture approach to this basic postulate, go back to the classic Rodgers & Hammerstein musical “South Pacific,” which opened on Broadway in 1949 and was later made into a movie in 1958. Set on a South Pacific island during World War II, the show deals with serious issues of race and color and was considered quite controversial for its time. One of the numbers, “You’ve Got To Be Carefully Taught,” is about how people learn racist beliefs and intolerance. Go here or click above for a snippet of the song from the movie version.

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Related note: The Bloomberg/BNA Daily Labor Report interviewed me about the employment law implications of the Charlottesville rally in this piece, “Can You Fire Someone for Attending a Rally of Racists?”

Can an employer fire a publicly-avowed white supremacist?

Screenshot of rally photo from Huffington Post

While following developments concerning the horrific white supremacist/neo-Nazi/KKK rally in Charlottesville, Virginia this weekend, I asked myself, how would I like to be working with one of these lovely individuals? I then thought, if I was a manager, could I simply fire a white supremacist for participating in the rally?

The answer to the first question is easy and purely personal: No way would I want to share office space, a cubicle area, an office suite, a store floor, or a factory floor with one of these folks. And as an Asian American, I assume they’d feel the same way towards me.

The answer to the second question is more objective, complicated, and nuanced: Yes, in many instances the law would allow a manager to terminate a white supremacist for participating in the rally, but there are potential exceptions and twists, especially for unionized and/or public employees. Without pretending to be exhaustive on the topic, here’s a brief lowdown of relevant legal rules:

  • In the U.S., the rule of at-will employment is the presumptive legal hiring relationship. Among other things, it means that an employer can hire or fire someone for any reason or no reason at all, so long as it does not violate existing legal protections or obligations.
  • Fair or not, the rule of at-will employment allows employers to make hiring and termination decisions based even on many types of off-site, non-work-related activities.
  • Employment discrimination law prohibits discrimination against or harassing of other employees on the basis of certain characteristics, including race, sex, religion, color, national origin, age, and disability. This would be especially relevant if someone took their white supremacist messages into the workplace.
  • For private-sector workers, constitutional free speech protections do not apply to their jobs.
  • For public-sector workers, constitutional free speech protections may apply if they are speaking out on matters of public concern in ways that aren’t related to or internally disruptive of their work. (Yes, as noxious as it may be to some of us, it is arguable that a public-sector worker participating in this rally would be protected from termination under this set of legal rules.)
  • For unionized workers, collective bargaining agreements may provide additional substantive and procedural safeguards for wrongful termination, which may cover off-site conduct.
  • A minority of employees have individual employment contracts with so-called morals clauses that may be relevant in these situations. 
  • State law can matter in these situations. Connecticut, for example, has a broad employee free speech law that covers both private and public sector workers. California has a law that protects employees’ right to political expression.
  • If an employee engaged in violent behavior, especially that leading to a criminal conviction, their potential legal protections against wrongful termination would severely diminish.

Taking all these points into consideration, what does this mean for whether employers could fire workers for participating in one of these rallies on their own time? Bottom line is that many private-sector employees could probably be terminated without much risk of liability, but that public-sector workers may be able to raise constitutional free-speech protections. However — and here’s my lawyer’s analytical caution entering the picture — each situation would have to be evaluated individually. There’s no sweeping, catch-all rule that answers this question as yes or no for every situation.

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August 14 update: This topic has gained relevance due to efforts by certain civil rights/social media activists to “out” white supremacist protesters who are appearing in published photographs of the Charlottesville rally. Apparently the first protester to lose his job is a young man who worked at a fast food eatery, Top Dog, in Berkeley, California, per this piece in the UC-Berkeley student newspaper. 

If readers detect some ambivalence on my part on the use of such tactics, then their perceptions are accurate. I abhor and detest these white supremacists and their worldview. But I also have concerns over how social media can be used to go after anyone in ways that have significant consequences. I think we need to be very careful about determining one’s suitability for employment based on off-site conduct that, while deeply objectionable, may be legal. 

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Though slightly dated, the legal discussion in my 1998 law review article on the free speech rights of private-sector employees, “Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial Workplace” (Berkeley Journal of Employment and Labor Law), remains largely intact today. You may access it without charge here.

Work, savings, retirement: Generation Jones is getting hammered

If you were born between 1954 and 1965, then you may identify as a member of “Generation Jones,” that large cohort sandwiched between classic Baby Boomers and classic Generation Xers. The thesis is that Gen Jonesers, on average, have had very different life experiences than those of folks in the two iconic groupings. Indeed, with a 1959 birthdate, I am a card-carrying member of Generation Jones, and I have long believed that, on balance, our group is different than the mainstream Boomers with which we are often categorized.

Gen Jonesers now range from their early 50s and early 60s. And currently, this age group is getting hammered by economic conditions and policies, personal financial circumstances, and frequent age discrimination in the workplace.

To some extent, this Generation Jones has been snakebitten by broader events. During the early 1980s, many graduated into a terrible recession that limited entry-level job opportunities. This was also a time when America’s industrial jobs base went into sharp decline (a trend continuing to this day), wages started to flatline (ditto), and employers began eliminating pension plans (ditto again).

Fast forwarding, the Great Recession hit during what should’ve been Gen Jonesers’ strongest earning years, the heart of their 40s and early 50s. Many lost jobs and livelihoods during that time and have struggled to recover. Some have never recovered. Gen Jonesers are now hurtling toward what have been considered traditional retirement years; most are within 10-15 years of that time. But as I have written often on this blog (here, for example), America faces a retirement funding crisis of major proportions.

My own interest in this topic relates to my work on workplace bullying. I’ve witnessed the challenges that face those in middle age who have lost jobs and livelihoods due to bullying, mobbing, and abuse at work. The ongoing specter of age discrimination often undermines their efforts to seek new employment.

These are difficult topics, but they are vitally important, and they should be front and center in our national political and policy debates, even though anyone following the news knows they are not. For those who want to learn and think more, however, I’ll make two suggestions:

First, watch Elizabeth White’s TEDx talk, “Fifty-five, Unemployed, Faking Normal.” It’s an 18-minute reflection on what it means to have lost your job at middle age and to face the financial challenges that can follow. I’ve written about her important work before, and I’m a big fan of her book, Fifty-Five, Unemployed, and Faking Normal: Your Guide to a Better Life (2016). Richard Eisenberg, writing for the Next Avenue blog, previews White’s TEDx talk:

White’s TEDx Talk, filmed earlier this year in Richmond, Va., is a composite of her story and her friends’ — women and men in their 50s who are “faking normal.” By that, White’s talking about people who had good careers and lives until they didn’t. She describes them in the TEDx Talk as people who “entered the uncertain world of formerly and used to be.”

Second, read Elizabeth Olson’s New York Times piece, “Shown the Door, Older Workers Find Bias Hard to Prove,” which explains the legal challenges facing laid off workers who are alleging age discrimination:

Yet, even as the work force has a large number of older employees, one of the principal tools to fight such discrimination, the Age Discrimination in Employment Act — which Congress passed a half-century ago — may not be up to the task, said Laurie A. McCann, a lawyer with AARP Foundation Litigation, which is providing legal counsel to the Wichita plaintiffs.

“Ageism unfortunately remains pervasive in the American work force,” she said. Only two of the cases the E.E.O.C. filed in court last year involved the federal age discrimination act, according to a list assembled by AARP, the nonprofit older citizens group.

They were among a total of only 86 workplace discrimination cases litigated in court last year, AARP found. Few cases are taken to court because such complaints are complicated and expensive; it can take a long time to assemble relevant evidence and testimony.

Documentary: “Coming of Age in Aging America”

“Never in human history are so many living so long.”

Dear Readers, through August 1 you can watch for free a compelling one-hour documentary, “Coming of Age in an Aging America,” which tells the multifaceted story about the nation’s aging population. It includes a lot about the employment and Social Security implications of an aging workforce. It also covers the serious problem of elder abuse.

You may access the free screening through this piece on the Next Avenue website. If you miss the freebie window but still want to watch or learn more about the documentary, you can check out its webpage, here. You may also access a four-minute quickie version:

 

Genetic testing for workplace wellness program participants: Coming soon to a company near you?

Ten jumping jacks and a blood sample, please

It sounds like something out of a dystopian sci-fi novel, but Republicans in the U.S. House of Representatives are advancing a bill that would allow employers to require employees to undergo genetic testing in order to participate in voluntary workplace wellness programs. Workers who refuse may face significantly higher health care premiums as a penalty. Lena Sun reports for the Washington Post about the proposed Preserving Employee Wellness Programs Act:

Employers could impose hefty penalties on employees who decline to participate in genetic testing as part of workplace wellness programs if a bill approved by a U.S. House committee this week becomes law.

…Under the Affordable Care Act [a/k/a Obamacare], employers are allowed to discount health insurance premiums by up to 30 percent — and in some cases 50 percent — for employees who voluntarily participate in a wellness program where they’re required to meet certain health targets.

…But the House legislation would allow employers to impose penalties of up to 30 percent of the total cost of the employee’s health insurance on those [wellness program participants] who choose to keep such information private.

Currently the Genetic Information Nondiscrimination Act (GINA) prohibits employers and ensurers from using genetic information for discriminatory purposes. In addition, the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of a recognized disability, which could be identified through genetic testing.

As Sun reports, the dozens of organizations that oppose this bill — which include “the American Academy of Pediatrics, AARP, March of Dimes and the National Women’s Law Center” — argue that the proposed legislation would substantially undermine the basic privacy protections provided by GINA and the ADA.

The bill has passed through the House Committee on Education and the Workforce, with all Republicans voting yes and all Democrats voting no.

If enacted into law, this means that if you want to participate in a workplace-sponsored program to stop smoking, lose weight, or learn mindfulness practices, then you can be required to give your genetic information to your employer as a condition for doing so. If you don’t want to provide a genetic sample but still want to join the wellness program, then your employer can boost your health insurance premiums by up to 30 percent.

The bill itself is alarming enough, but the door it opens is positively frightening. Even if it doesn’t become law, the fact that it has been quickly ushered through a House committee by a pure party line vote sends a disturbing signal about the kind of policy proposals that are holding sway in Washington D.C. today. These are not normal times, and we should all be paying close attention.

Bystander intervention in workplace bullying situations

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Can bystander intervention training help us to address workplace bullying and other forms of on-the-job mistreatment?

That was a major question on my mind when I made a quick trip to New York City this past weekend for a bystander intervention training session hosted by the First Unitarian Congregational Society in Brooklyn and facilitated by trainers Kirsten deFur and Julia Martin.

The overall focus of this excellent introductory training was not on bullying per se, but rather on everyday types of harassment and aggressive conflict that we may encounter in various public settings. Many of the scenarios discussed by participants involved harassment on the subways. For we urban dwellers, a public subway system is often the great equalizer, where we’re all randomly tossed into a mix of humanity. It’s hardly surprising that situations often arise in such close-quartered settings.

The training gave us a valuable overall framework for understanding the dynamics of bystander intervention, emphasizing points to think about instead of pretending to have a one-size-fits-all solution. Here are some of the key takeaways for me:

  • “Bystander paralysis” is normal; we freeze up for a variety of reasons and don’t take action. Intervention training is designed to help us get beyond that.
  • In terms of steps, among other things, we have to assess the situation (very challenging at times), decide whether to get involved, and intervene effectively. We typically don’t have much time to go through this process.
  • Specific interventions vary, including the “Four Ds” of direct, distract, delegate, or delay.
  • At times, not getting involved is the right decision.
  • De-escalation of the situation is the ideal process outcome.
  • This is not easy.

I deeply appreciated the grounded quality of the training and dialogue. This was not about preaching against inaction or indifference. Rather, the session assumed we were all there because we cared about this topic, and then implicitly understood that taking action in these situations must be done wisely.

What about the workplace?

So how do I answer the question I posed above? Yes, bystander intervention training may help us to develop approaches for dealing with bullying and abuse at work, but we need to take the discussion deeper than this terrific intro session to reach that point. Indeed, in a short conversation I had with trainer Kirsten deFur after the session, we concurred that bystander intervention in workplace scenarios can be especially complicated.

For those of us interested in bullying in any environment (school, work, community, and so on), bystander reactions and responses have become an increasing point of attention. As I’ve observed many times here, all too often those experiencing bullying also bear witness to bystander abandonment. In the workplace, this can include co-workers who were regarded as friends. For what it’s worth, here are some of my initial observations and caveats concerning bystander intervention at work:

  • Assessing a situation can be especially hard in a work setting. Obvious verbal and physical harassment on the basis of sex, race, religion, disability, and other factors is easy to comprehend. But so many other workplace mistreatment scenarios — especially bullying — involve combinations of overt and covert behavior. Claims of covert, indirect mistreatment may be especially challenging to to unpack and understand.
  • Legal protections come into play, too. A bystander intervening in a sexual harassment situation may be protected under anti-retaliation provisions of employment discrimination laws. However, a bystander intervening in a generic bullying situation may be without legal protections, because — at least in the U.S. — we have yet to enact comprehensive workplace anti-bullying laws.
  • At times it may be wise to get permission of the targeted individual before intervening. Someone may, for example, be willing to tolerate a certain level of mistreatment while quietly seeking a new job to escape the toxic work situation. Perhaps that individual has good reason to know that an intervention, however well-intended, may backfire.
  • Power relationships matter greatly in this context. Let’s say you have a supervisor mistreating a subordinate. That supervisor’s boss could likely intervene without getting into any trouble. But an intervention by another subordinate of that supervisor may simply add another name to the target list. It’s not to say that the subordinate shouldn’t intervene, but the risks of doing so are much greater — and with a much lower likelihood of success.

Yes, this is a pretty sobering assessment. But as the training session in Brooklyn reinforced, bystander intervention, while motivated by some of our best instincts, is not easy stuff. It’s a topic to be embraced with both heart and wisdom.

Ageism in the American workplace (and its continuing relevance to workplace bullying)

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Rita Pyrillis, writing for Workforce, details the ongoing realities of age discrimination as America’s proportion of older workers continues to rise:

The number of older workers is on the rise. As their ranks grow they will play an important role in the U.S. economy, according to the National Council on Aging. By 2019, more than 40 percent of Americans over 55 will be employed, making up more than one-fourth of the U.S. workforce, according to the not-for-profit advocacy group. In 2014, older workers made up 22 percent of the workforce, according to the council.

Today’s mature workers are generally healthier and more active than their predecessors and offer a wealth of experience and knowledge, yet they are far more likely to experience age-related job discrimination than their younger counterparts, according to a 2013 study by the AARP. In fact, age discrimination complaints filed with the Equal Employment Opportunity Commission have increased dramatically in recent years. Between 1997 and 2007, 16,000 to 19,000 annual complaints were filed, compared to 20,000 to 25,000 filings per year since 2008, according to the EEOC.

Concerns about age discrimination continue to dovetail with this blog’s focus on workplace bullying. Workers who are bullied in middle age and beyond often face difficult odds in securing new jobs after leaving or being pushed out of bad work situations. Along with the common challenges that often confront older workers seeking new jobs, when workplace bullying enters the picture, targeted individuals may experience depression, psychological trauma, and a loss of trust and confidence — among other things.

Last month, I highlighted a Next Avenue blog post and forthcoming book by Elizabeth White about the challenges facing older workers who have lost their jobs. I’ve now had a chance to spend some time with Ms. White’s new book, Fifty-Five, Unemployed, and Faking Normal (2016), and I’m happy to recommend it. Although not specifically about workplace bullying, it will be especially helpful to those 50 and older who are trying to get their practical and emotional bearings in a job market inhospitable to mature workers. Here’s an excerpt from the book’s online description:

You’re in your fifties and sixties and have saved nothing or not nearly enough to retire. . . . Are there actions you can take (or not take) to have a shot at a decent retirement?

Fifty-five, Unemployed, and Faking Normal culls wisdom from boomers navigating the path ahead. It invites you to join with others to look beyond your immediate surroundings and circumstances to what is possible in the new normal of financial insecurity. . . . 

Containing over 100 online resources, Fifty-five, Unemployed, and Faking Normal is the book to read to help you navigate the emotional aspects of where you’ve landed. It is where to turn when you want to know what steps you can take to steady yourself enough to go another round.

Also, for more about linkages between ageism and workplace bullying, these earlier posts may be of interest:

Unemployed at midlife, “faking normal”…and sometimes bullied, too (2015)

Triple jeopardy: Workplace bullying at midlife (2013)

Not “Set for Life”: Boomers face layoffs, discrimination, and bullying at work (2012)

Singled out? Workplace bullying, economic insecurity, and the unmarried woman (2010)

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