What Racists DO

I cannot believe what you say because I see what you do.

James Baldwin (1924 – 1987)

My blue eyes disguise me, and belie my deepest convictions about race, about equity, about inclusion, and about equal opportunity. I’ve wondered if blue eyes act like some weird invitation for Racists to reveal themselves. They say

“I’m not racist, but . . .” or “I don’t mean to sound racist, but . . .”

What follows, invariably, is a conspicuously stereotypical, ignorant, and racist generalization, spoken in the ostensible safety of someone who, by virtue of eye color, is supposed to agree. Yet, experience has taught me to treat these moments as opportunities to point out that racist people make racist statements–it’s what they DO. Indeed, my experience as an Equal Employment Opportunity (EEO) litigator for 25 years has taught me to focus on what other [White] humans DO instead of what they SAY because their actions and behaviors always give them away anyway, despite what they say. Besides, that kind of White denial fuels systemic, racist disparate treatment in our workplaces, schools, police/criminal justice interactions, etc.

Racists often, but do not always, act overtly. Instead, they cherry-pick evidence to confirm their biases and discount any contrary facts. They then rely on their confirmed racial biases to make irrational attributions about people’s intent and character (e.g., dangerous, malevolent, rude), while extending the benefit of the doubt to people who look like them. And then, they use whatever agency and/or power they have, however big or small, to act on their biased beliefs, often in subtle but measurable ways. Racists’ disparate treatment and/or use of their agency and power to cause disparate outcomes are measurable, whereas their intent is nebulous.

Racists act on their biased beliefs in observable and measurable ways.

Tex McIver makes a good example. Tex was a longtime partner at Fisher & Phillips, a national workplace law boutique. I met Tex a few times as a Fisher & Phillips attorney in Denver: he was personable, slick even. His frequent invocation of his faith and his ringtone of small children laughing, however, raised red flags. After all, my granny taught me to watch my wallet when sitting next to the person singing the loudest in church. Years later, Tex would murder his wife and serve up a truly racist alibi–to wit, that he accidentally shot her while driving in a “bad” (i.e., predominantly African American) neighborhood. Tex would undoubtedly deny that he’s racist, while simultaneously claiming that he needed his gun to protect himself and his wife from “scary” people with brown skin. Yet, of course, Tex himself was the “dangerous” one, as is often the case of White paranoia. The irony and absurdity of Tex’s alibi prompted me to make a music video about it entitled “The Ballad of Tex McIver.”

Watch your wallet when sitting next to the person singing the loudest in church.

Granny

And so, understanding that White denial of racism is as deeply entrenched as racism itself, we must instead focus on what Racists DO–e.g., behaviors, decisional outcomes, and the systemic (and measurable) vestiges of disparate treatment in every American social system–e.g., criminal justice, civil justice, education, and of course, the workplace.

What would, for example, a racist law enforcement officer do? Unfortunately, we do not have to guess. Racist cops regard African Americans with greater suspicion, use more violence, and handle their offenses as more “severe” than White comparators. Police and prosecutor “severity bias” against African Americans, with corresponding “leniency bias” against Whites, is increasingly well-documented both in academic research and in videos posted on social media. These outcomes are capable of statistical measurement and of video documentation, after all.  

What would, for example, a racist Human Resources (HR) executive do? Again, we do not need to guess. A racist HR executive would construct a completely subjective disciplinary/termination process that vests complete discretion in HR, that does not follow any progressive sequence, and that does not “set precedence”, basically guaranteeing disparate treatment. That racist HR executive would then treat mistakes by African American employees as “egregious” and worthy of summary termination, while extending the benefit of the doubt and many second chances to White ones. That racist HR executive would deliberately avoid testing decisional outcomes under this process for any adverse impact based upon race, gender, and/or national origin. And that racist HR executive would ignore the mounting employee complaints about her race-based mistreatment. Meanwhile, that racist HR executive would vehemently deny any racial bias. Those very facts are playing out in federal court in Nichols et al v. Denver Health, which alleges a pattern-or-practice of race discrimination against African American employees in wholly subjective disciplinary and termination decisions.

What would a racist educator do? Studies show that biased educators spend less time with African American students, highlight their achievements less, and discipline them more severely than White ones—i.e., all measurable outcomes indicative of race bias. Meanwhile, that educator would vehemently deny any racial bias.

And what would a racist judge do? A racist judge would treat criminal offenses by African American defendants as more “severe” than White comparators—i.e., now well-documented measurable outcomes of severity and leniency bias in the criminal justice system. But on the civil side, racist judges would do everything possible to make civil rights enforcement punishing and inaccessible. They would outsource their judicial duties to a private Special Master and require a wrongfully terminated African American plaintiff to bear over 80% of the adjudicative fees; they would deflect attention from the merits by focusing on trivial sideshow disputes initiated by the defense; they would issue “snarky” orders overlooking blackletter law and established facts; they would punish plaintiff’s counsel for aggressive deposition questioning while ignoring defense counsel’s provably false and misleading statements in the truth-seeking process; they would delay orders and delay setting a trial date; and they would simply “reject” invocation of the “private attorneys’ general” model of civil rights enforcement—i.e., foundational purpose of anti-discrimination litigation. These outcomes are also capable of measurement through PACER data and public filings. Stay tuned. Meanwhile, not only would such a racist judge vehemently deny bias, s/he would threaten anyone raising concerns about the conspicuously biased record of judicial actions. It’s what they do.

“What would a racist do?” That question immediately snaps otherwise fuzzy questions about people’s character and/or intent into sharper focus.

James Baldwin also observed that we must first FACE problems if we have any hope of FIXING them, and he was, of course, right. We cannot overcome systemic racism and inequitable opportunity in our major societal systems (e.g., courts, schools, workplaces) unless we FACE these problems head-on, with open hearts and minds unobstructed by White denial, confirmation bias, and our own cognitive dissonance and guilt. But until that happens, we EEO advocates and attorneys must start challenging systemic racial bias that is observable and measurable through adverse impact statistical analyses. We must ask ourselves not “are they racist?” but rather, “what would a racist do?” This question immediately snaps otherwise fuzzy questions about people’s character and/or intent into sharper focus. Racists look for opportunities to act on their biases. While hard to detect in individual cases, racial bias shows up clearly in aggregate statistical analyses of their decisions and observable actions.

We are watching. And we are measuring what we see.

Merrily Archer, Esq., M.S.W. , EEO Legal Solutions LLC

CEO Robin Wittenstein Must Address Denver Health’s Own Systemic Racism Problem Before “Admitting Failure” on Racial Equality

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We must cultivate our own garden.

Voltaire, Candide (1759)

Earlier this week, the Colorado Sun published an Op-Ed written by Denver Health CEO Robin Wittenstein entitled,

It’s time to admit failure on equality. Let’s use that as our starting point.

CEO Wittenstein then showcased her ostensible commitment to racial equality and equal employment opportunity (EEO) by announcing the formation of a new CEO group called “Colorado Inclusive Economy“, which is allegedly “committed to doing the work personally and through our organizations to provide opportunities to those who have been without for too long.” 

Bullsh*t.

Since October 2019, Denver Health has defended a systemic pattern and practice race discrimination lawsuit in U.S. District Court (Colorado) brought by its former Employee Relations Investigator, Carol Nichols, Nichols et al. v. Denver Health and Hospital Authority, 1:19-cv-02818.

Carol Nichols, former Employee Relations Investigator at Denver Health, is now pursuing a systemic race and disability discrimination matter in U.S. District Court-Colorado.

Ms. Nichols, a 35-year equal employment opportunity (EEO) investigator, alleges that Denver Health maintains a pattern and practice of subjective, racist decision-making in disciplinary and termination decisions that cause “astronomical” adverse impact against African American employees. Ms. Nichols’s lawsuit is based not only on testimony from former officials in Denver Health’s HR department, but also detailed statistical analyses from Biddle Consulting Group in Folsom, California, leading experts in adverse impact testing and affirmative action compliance.

In June 2020, Ms. Nichols gave Denver Health’s attorneys Biddle’s analysis of disciplinary and/or termination outcomes under Denver Health’s Accountability-Based Performance (ABP) policy and practices. In 2019, Denver Health changed its ABP process from a progressive disciplinary ladder aimed at employee self-correction to a subjective system vesting complete discretion in HR leaders and line managers. Using well-accepted federal EEO statistical modeling, Biddle’s adverse impact analysis revealed that this subjective process yielded worsening severity bias against African Americans with corresponding leniency bias against Caucasian/White ones, effectively echoing the Black Lives Matter studies of severity and leniency bias by police and by courts: mistakes and/or missteps by African Americans are somehow allegedly more “egregious” and deserving of more severe, harsher treatment.

In response, Denver Health hired its own statistical expert who admitted that he was unfamiliar with 30 years of federal adverse impact statistical modeling and so, he constructed his own novel model. Despite his non-conforming approach, Denver Health’s own expert STILL found statistically significant adverse impact by race in some of Denver Health’s most populated job categories. Of course, like Denver Health, its expert minimized this monumental finding, as though Title VII tolerates “just a little” race discrimination. On the contrary, Title VII and pattern and practice litigation like Carol Nichols’s case exist to remove these system-wide racial barriers to equal employment opportunity.

If an employer’s undisciplined system of subjective decision-making has precisely the same effects as a system pervaded by impermissible intentional discrimination, it is difficult to see why Title VII’s proscription against discriminatory actions should not apply.

Watson v. fort worth bank & trust, 487 U.S. 977, 990-91 (1988).

In November 2020, Denver Health Workers United (DHWU), through national advocacy group Towards Justice, filed a whistleblowing lawsuit alleging systematic retaliation against doctors and workers who have complained about systemic racism at Denver Health. The fight for racial justice at Denver Health lies at the heart of DHWU’s organizing campaign.

We shared Biddle’s statistical findings, as well as Denver Health’s expert rebuttal reports, with DHWU last year. On an individual basis, racist disparate treatment can be difficult to prove. It comes into sharp focus, however, in aggregate statistical analyses of decisional outcomes: Denver Health has consistently treated mistakes by African American employees far more severely, as “egregious” and worthy of summary termination, while extending Caucasian/White ones the benefit of the doubt–e.g., numerous second chances, less severe discipline, if any at all. Again, that kind of disparate treatment is exactly what Title VII was intended to prevent and correct.

Racist disparate treatment comes into sharp focus in aggregate statistical analyses of decisional outcomes.

DHWU has cited these findings and raised employee concerns of racial injustice and disparate treatment to Denver Health’s C-Suite, its Board of Directors, Denver Mayor Hancock’s office, and the Denver City Council. What does it take to effectuate change at Denver Health, for the benefit of the 7,500 workers serving our community there today? What does it take for our local leaders to hear the voices of Denver Health’s workforce, as well as those of civil rights attorneys, union leaders, local activists and organizers, etc. striving to make Denver Health the kind of employer its workforce and our community deserve?

But also ask yourself: does it make sense that CEO Wittenstein would be unaware of active systemic discrimination litigation alleging astronomical statistically significant racial bias in disciplinary and termination decisions pending in U.S. District Court today? If so, is she similarly uninformed about other matters that directly impact Denver Health’s bottom line, treatment of employees, and community reputation?

More likely than not, CEO Wittenstein knows about the struggle of Denver Health’s own workforce to achieve racial equity at work, but chooses to throw up her hands in failure, ruminate with other CEO’s, and publish self-congratulatory Op-Ed’s rather than strive to fix her own workplace. After all, most compliance-conscious employers mete out discipline CONSISTENTLY in a progressive process aimed at employee self-correction to avoid actual or the appearance of disparate treatment. Not Denver Health.

Unfortunately, CEO Wittenstein and Denver Health’s PR machine have an established history of taking diametrically divergent positions in policies and press releases versus in court where employee rights are at stake.

For example, where was CEO Wittenstein when Denver Health’s General Counsel and outside litigators argued that the Colorado Antidiscrimination Act (CADA)–the only law outlawing discrimination against Colorado’s LGBTQ+ workers until June 2020–stopped protecting its LGBTQ+ workforce in Houchin v. Denver Health? For several years, Denver Health has held itself out as a particularly LGBTQ+-friendly employer, while claiming in court absolute governmental immunity from the only law protecting LGBTQ+ employees.

Denver Health attorney Brent Johnson (top center) argues on October 13, 2020 before the Colorado Supreme Court that because of governmental immunity, Colorado’s antidiscrimination act stopped protecting Denver Health’s workers on January 1, 2015.

On December 21, 2020, the Colorado Supreme Court rejected Denver Health’s argument that it enjoys absolute governmental immunity from CADA discrimination claims and remanded the case back to Denver District Court. We estimate that Denver Health has spent $1.2 million in non-recoverable legal fees to argue that its LGBTQ+ employees enjoyed no legal protection against discrimination, harassment, and retaliation.

How can CEO Wittenstein plead ignorance? Legitimately, she cannot.

“We must cultivate our own garden,” Voltaire wrote in 1759. The FIX must begin in your own garden, Ms. Wittenstein, starting with Denver Health’s own policies, practices, and Employee Relations leaders which have collectively created barriers to racial equality at Denver Health. Perhaps, Ms. Wittenstein, you could take a greater interest in the legal positions that Denver Health’s outside counsel assert in court, positions that directly conflict with Denver Health’s published policies, press releases, and public pronouncements like your recent Op-Ed. Respectfully, Ms. Wittenstein, until you begin to address the systemic discrimination against Denver Health’s own employees, participation in a group like “Colorado Inclusive Economy” is just more ineffective window-dressing. If you truly care about racial equality, Ms. Wittenstein, start in your own garden.

Merrily Archer, Esq., M.S.W.