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.
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.”
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.
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