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At the Intersection: Discrimination and Diversity in the Modern Workplace

By Kelly Brooks, CEO of Property Masters

Editor's Note: This select print feature originally appeared in the September 2016 issue of DS News.

It has been thirty-five years since Tracey “Africa” Norman has received a modeling contract. She first modeled for Clairol in the late 1970s but her career ended abruptly when she was discovered to be transgender. Now, Proctor & Gamble Co. has decided to re-sign Norman, 64 years old, to promote its Clairol Nice’n Easy brand through its new “Color As Real As You Are” ad campaign which will commence in January 2017. “It has been truly vindicating and groundbreaking for the beauty industry and the first black openly transgender model,” says Norman.

Legal Issues

Diversity in the modern workplace is a fact of everyday life – just as it is in our community at large. Yet, as in Norman’s case, it hasn’t always been this way and we are certainly not at a stopping point. This year a federal judge in Michigan ruled in favor of a Detroit-based funeral home that fired a transgender employee due to her gender identity. U.S. District Court Judge Sean Cox ruled that the Religious Freedom Restoration Act (RFRA) could be used as a defense in a sex discrimination claim under Title VII -- exempting the employer from Title VII’s non-discrimination requirements.

For employers in the mortgage industry, facilitating diversity and inclusion ensures that vendors and other partners continue to have access to competent, qualified and talented individuals. In addition to the legal and professional responsibility, it makes good business sense to incorporate diversity and inclusion policies in the workplace. P&G released a statement that they were proud to bring back Tracy Norman and several studies present a strong business case for such initiatives. Companies who have implemented inclusion policies have seen improved productivity in the workplace, reduced employee turnover and absenteeism, enhanced corporate reputations, and an increased potential to recruit the best candidates.

Google was on the forefront of these issues, becoming one of the first multinational corporations to release a report detailing its diversity. Global gender data indicates that Google employees are 70% male and 30% female. Google’s ethnicity data refers to US employees only, and indicates 61% white, 30% Asian, 4% identifying as two or more races, 3% Hispanic, 2% black, and 1% other. Google also has employee resource groups for employees, including groups for Googlers of specific races, veterans, women in engineering, and LGBT employees.

We serve a diverse population in the mortgage industry. The goal is to build a foundation in policies and, sometimes, legislation that will shape and provide the opportunity for an inclusive environment. Having a workplace that is reflective of the greater community and where people’s differences are respected and valued is a competitive advantage. The aim is to adopt policies and practices that provide everyone with equal treatment and equal opportunities to succeed at work, while recognizing that individual differences may require accommodation in the workplace.

In the case of Degraffenreid vs General Motors, five black women sued GM on the grounds of race and gender discrimination. The courts decided that black women could not prove gender discrimination because not all women were discriminated against, and they couldn’t prove race discrimination because not all black people were discriminated against. The law is grounded in the principle that anti-discrimination law looks at race and gender separately. “Black women” was not recognized as a class which could suffer discrimination. The women were compounded into preset categories and not treated as individuals.

The Theory of Discrimination

Let’s go back to Tracey Norman’s situation. The discrimination she experienced was attributed to her gender identity exclusively. However, could there have been other factors such as race and gender that influenced the prejudices against her? Can we think of each element or trait of a person as inextricably linked with all of the other elements in order to fully understand one’s identity?

Social identities and related systems of oppression overlap or intersect. The theory of “intersectionality” was introduced in 1989 by legal scholar and critical theorist Kimberlé Crenshaw, in a Stanford Law Review paper. She illustrated how black women’s rights are marginalized by the influence of other dimensions of their identity, such as race and class. Intersectionality describes how different forms of discrimination can interact and overlap. Professor Crenshaw claimed that “racism as experienced by people of color who are of a particular gender - male - tend to determine the parameters of antiracist strategies, just as sexism as experienced by women who are of a particular race - white - tends to ground the women’s movement.” She suggests an intersectional approach can address the double- bind of those suffering at the sharp end of both racism and sexism.

As a principle, intersectionality can be easy to understand. The difficulty lies in determining the applicability of current laws as well as identifying gaps in anti-discrimination laws. And intersectionality isn’t just race or gender anymore. There are more discriminations today than have been previously identified. In 2014, President Obama made official proclamation that the month of June is to become Lesbian, Gay, bisexual, Transgender (LGBT) pride month, as an annual anti-discrimination effort. However, since then we are increasingly seeing use of a fifth letter, Q, for queer, which is non-specific to sexual orientation or gender. Queer can mean many things. It could mean your aren’t one of those letters (LGBT), but you could be all of those letters.

Crenshaw has been leading the Critical Race Theory (CRT) movement. In that regard, she founded the African American Policy Forum (AAPF) in 1996, an innovative think tank that works to dismantle structural inequality. It’s through efforts like these that give substance to the development of diversity and inclusion policies. The Human Rights Campaign advocates for the LGBTQ community and was at the forefront of the fight for marriage equality that achieved a historic Supreme Court decision.

Protections from discrimination on the basis of sexual orientation or gender identity and expression vary state by state. There are currently 19 states which prohibit discrimination based on sexual orientation and gender identity, followed by 3 states which prohibit based on sexual orientation (not gender identity). On the flip side, same-sex couples now have the freedom to marry in all 50 states but flip again and 31 states have no explicit employment protections for transgender people.

Discrimination and unconscious bias are the forces that deflect diversity and inclusion goals. Crenshaw argues that a key aspect of intersectionality lies in its recognition that multiple oppressions are not each suffered separately but rather as a single, synthesized experience. This has enormous significance at the very practical level of policy making.

Discrimination in the workplace negatively affects the ability of a person to succeed at work based on numerous factors. It is a theory often taught by way of an iceberg model: Above the water line are prejudices based on what we can see- race, gender, physical ability and age. Below the water there are still massive areas of discrimination to consider: sexual orientation, class, parental status, religion, education, marital status, geographic background or ancestry, political belief, source of income and working patterns, the list goes on.

Our unconscious bias is a preference for or against someone or something. We naturally assign people into categories based on our previous personal experiences. All of us have this to some degree, it does not necessarily mean we will act inappropriately or discriminate. It only means that our first observation will send us certain information and it is up to us to acknowledge our reaction before making a decision.

“Discrimination, like traffic through an intersection, may flow in one direction, and it may flow in another. If an accident happens in an intersection, it can be caused by cars traveling from any number of directions and, sometimes, from all of them.” That is intersectionality described by Crenshaw. All layers of diversity need to be considered and reconsidered. We have become more inclusive today but there will always be opportunity to reconsider our policies, just as Proctor & Gamble has decided to resign Tracey Norman.