The Evasion of African American Workers: Critical Thoughts on U.S. Labor & Employment Law and Policy

By Roderick O. Ford

"The Evasion of African American Workers" explains through several thought-provoking essays precisely how the American legal system avoids the legal mandates of Title VII of the Civil Rights Act of 1964 as well as other state and federal fair employment laws. This work consists of stand-alone essays which address different aspects of this problem, including legal and social history and statutory construction.

• Language: English
• Publisher: Xlibris US
• Release date: Oct 15, 2008
• ISBN: 9781462822140

Roderick O. Ford

Roderick Ford is the proud grandson and grandnephew of Methodist ministers. He is a former officer in the United States Army and holds an honorary Doctor of Divinity degree from the Christian Bible Institute & Seminary and a Doctor of Letters in Christian Theology-Law and Religion from St. Clements University. He is a graduate of Morgan State University and the University of Illinois at Urbana-Champaign (College of Law). Mr. Ford holds professional designations from Michigan State University, Cornell University, and the Human Resource Certification Institute. Mr. Ford is the rector of the St. Luke’s Inn of Court International (“The Labor Ministry”), which is a professional organization for Christian professionals and a chaplaincy service that is designed to assist churches, bible colleges, and other faith-based organizations with addressing workplace equity and justice. Mr. Ford practices law as a solo practitioner in Tampa, Florida. You may visit his office online at www.fordlawfirm.org. You may also visit the St. Luke’s Inn of Court at www.laborministries.org. May God richly bless you, and thanks so much for your support!

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Contents

About the Author

Acknowledgments

Introduction

Chapter One

The Great Implosion

Chapter Two

The Legacy of Chattel Slavery

Chapter Three

Origins of Race in the American Workforce

Chapter Four

Washington & Du Bois Revisited

Chapter Five

Employment At Will

Chapter Six

"Workplace Harassment:

An American Tragedy"

Chapter Seven

Racial Slurs and Symbols at Work

Chapter Eight

"Surveillance and the

Criminalization of Work"

Chapter Nine

Degradation of Servitude—

A New Common Law Doctrine

Chapter Ten

"Risk Management, Race

and Employment"

Chapter Eleven

Tale of An African American Worker

Chapter Twelve

"Court Access and the

African American Worker"

Table of Cases

Bibliography

Endnotes

About the Author

Roderick Ford is a trial attorney in Tampa, Florida. He is the sole proprietor of RODERICK O FORD PLLC, a law firm committed to providing general civil litigation and labor & employment trial advocacy services primarily to small businesses, not-for-profit organizations, and underprivileged African American and Hispanic workers.

Acknowledgments

This book honors all American workers regardless of their gender, religion, color, ethnic origin, or race.

The intellectual giants who influenced this book, upon whose shoulders I now stand, are too many to count; and I owe a great debt towards these distinguished individuals. Some of their writings and publications are frequently referenced throughout the pages of this book.

The institutional giants, upon whose shoulders I also stand, include the Hillsborough, Pinellas and Orange County Chapters of the NAACP (for their numerous client referrals), the National Urban League (for its The State of Black America publications), the James J. Lumsford Law Library of Tampa, Florida (for the gracious assistance of its librarians), the Program on Negotiation at Harvard Law School (for its thought-provoking publications and invaluable insights on negotiations), the School of Labor & Industrial Relations at Michigan State University (for the accessibility of its professors and on-line resources), West Publishing, Inc. (for its vast array of on-line courses and publications), the University of South Florida’s Research Library (for permitting an unregistered, life-long student to liberally utilize its resources), the Labor & Employment and Workers’ Compensation Sections of the Florida Bar (for the collegial support of its members), and the Labor and Employment Relations Association (for the outstanding labor and employment research that it publishes and sends to its members). For each of these institutions have in some way supported my professional development and research of labor and employment issues.

Finally, I owe a very special thanks to Xlibris Publishing for permitting me to publish and distribute the first edition of this book.

Introduction

The American legal system has evaded the critical question of economic and employment discrimination against African American workers. This book is an in-depth exploration, through twelve unique chapters, of the historical genesis and the socioeconomic and legal foundations of that evasion.

Chapters One through Four provide unique perspectives concentrating primarily upon the historical origins of the critical problems facing African American workers in the early part of the twenty-first century. Chapter One directs attention to three of the most critical relationships bolstering the African American community: that of parent-child, husband-wife, and employer-employee. Chapter One offers a prophetic warning to this nation; namely, that disastrous genocidal consequences are imminent, should current trends persist unabated. Chapter Two focuses attention on the economic impact of American slavery on the current crisis: while African Americans make up thirteen percent of the total population in the United States, their total net worth is only 1.2 percent of the total net worth of the nation, and this percentage of total net worth has not changed since the end of the Civil War in 1865. Next, Chapter Three analyzes the social impact of American slavery on the current crisis: the Free Soil and Free Labor movements which had coalesced into the Republican Party during the 1850’s, and nominated Abraham Lincoln as its anti-slavery presidential candidate in 1860, had been primarily and exclusively a white worker’s political movement. Thus, from the end of the Civil War in 1865, up through the 1940s, African American workers were systematically excluded from predominately white labor unions, high-paying jobs, and apprenticeships in the trades. Finally, ending the historical component of this book, Chapter Four looks at two of Black America’s greatest leaders—Booker T. Washington and W.E.B. Du Bois—in an effort to isolate and to revitalize their essential thoughts on similar economic problems facing African American workers in these early days of the twenty-first century.

Turning to traditional law topics—the common law, statutory law, and constitutional law—Chapters Five through Nine analyze weaknesses in the current American legal system: e.g., the draconian impact of the at-will employment doctrine on African American workers in Chapter Five; the daunting task of proving discriminatory intent in hostile work environment cases in Chapter Six; the increasing workplace tolerance of racial slurs and symbols in Chapter Seven; the devastating impact of incarceration, crime and workplace surveillance in Chapter Eight; and a recommendation for a newer, more pertinent legal doctrine (i.e., the degradation of servitude) in Chapter Nine.

Chapters Ten through Twelve close out the book with three novel and unique perspectives of African American employment problems. Chapter Ten purports that the risks of attaining an education and investing in job skills seem to far outweigh the risk of settling for low-wage employment; it next explores the inertia inhibiting socioeconomic advancement in the African American community: the bellicose implications of workplace racism—discriminatory hiring, promotions, training, etc.—conjoined with the high cost of college tuition, results in a widespread, moribund complacency amongst African American workers. Next, Chapter Eleven, a work of fiction, takes a look beneath the veil of ghetto oppression, at the life of a typical low-wage African American worker,—a young man coming to terms with a deeper meaning of his life as black man in the United States. And, finally, Chapter Twelve is an analysis of the historical and contemporary problem of gaining access to America’s civil courts.

I have tied together the motley ideas and concepts within these twelve chapters, and collectively I have titled them, The Evasion of African American Workers. The word evasion, quite frankly, was derived from my daily experiences as an employment attorney, representing individual workers while interacting and negotiating with corporate representatives and defense lawyers; the term evasion best captures the strange happenings and occurrences in the modern-day American workplace,—namely, the systematic nullification of worker rights and anti-discrimination laws.

Roderick O. Ford

Tampa, Florida

August 5, 2008

Chapter One

 "The Great Implosion"

Sit at the feet of history—through the night

Of years the steps of virtue she shall trace,

And show the earlier ages, where her sight

Can pierce the eternal shadows o’er their face;—

When, from the genial cradle of our race,

Went forth the tribes of men, their pleasant lot

To choose, where palm-groves cooled their dwelling-place,

Or freshening rivers ran; and there forgot

The truth of heaven, and kneeled to gods that heard them not.

William Cullen Bryant

____________________________________

The African American worker is today in a perilous socioeconomic condition. Historically, as the American economy became less agrarian and more industrial, the plight of African American workers seemed to be ameliorated through periods of economic prosperity and migrations to industrial centers, particularly during manpower shortages at wartime; but today, however, as the American economy becomes more high-tech and global, the African American worker’s perilous socioeconomic condition seems to be worsening. We too often take false comfort in the historic survivability of New World Africans to endure hardship;—after all, they survived the transatlantic Middle Passage, 240 years of chattel slavery, and the 100 additional years of legalized segregation. But we fail to take into account the accumulated affect of these centuries of human oppression—the physical, psychological, and spiritual toil—on succeeding generations of African Americans. Today, the residual affects of that historic oppression is real. The physical and psychological toll of slavery and segregation (e.g., lynching and economic oppression) on African Americans, if not soon ameliorated, could result in genocidal social deterioration before the end of the twenty-first century. The present generation of African Americans continues to survive off of the dwindling gains won during the 1960s, which were primarily legal or civil rights; however, meaningful employment opportunity and economic development has not yet filtered through to the laboring African American masses. Meanwhile, the African American middle classes, which face unique difficulties not encountered by their white or non-black counterparts, are most vulnerable to slipping into debt-serfdom or bankruptcy. How long this modus operandi will enable African Americans’ survival remains to be seen.

THE THREE-LEGGED STOOL

The key to African American history, and to comprehending the socioeconomic damage which slavery and racial discrimination has perpetuated, is to thoroughly comprehend the three most critical relationships in the African American community: the parent-child relationship, the husband-wife relationship, and the employee-employer relationship. The historical devastation of African American homes and communities revolves around these three relationships. Today, new forms of oppression threaten to perpetuate the historical undermining of these three critical relationships—the three-legged stool-of parent-child, husband-wife, and employee-employer. This three-legged stool is the fulcrum upon which twenty-first century law and public policy must turn, if in this critical period of the twenty-first century the socioeconomic plight of African Americans is to be meliorated.

The first two relationships, that of parent-child and husband-wife, require careful and critical consideration that is beyond the scope of this book, because this book focuses on race discrimination in employment. Nevertheless, the relationship of parent-child and husband-wife are certainly important barometers that give us readings on the third critical relationship of employee-employer. Additionally, with respect to the three-legged stool which I have discussed, in all three of these important legs—the parent-child relationship, the husband-wife relationship, and the employee-employer relationship, African American males as a whole appear to be loosing the most ground: first, as fathers; second, as husbands; and third, as employees—throwing the whole machinery of African American survival and civilization into crisis mode.[1] If either of these legs collapses, the African American future could well-nigh be in grave danger; there are critical signs of great strain and stress in each leg of the three-legged stool—a collapse of the whole stool could be cataclysmic,—a phenomenon which I call The Great Implosion, because although this collapse will have been the result of external forces, such as institutional discrimination and ineffective public policies, it would appear as though its causal factors were from the hands of African Americans themselves. But that appearance would be inaccurate; for important external factors—such as the decline of unionization, globalization (particularly Hispanic immigration), outsourcing of jobs, and conservative public policies—have mightily contributed to this crisis. The great danger to African American workers and other oppressed communities is that this crisis can persist across generations, thus creating generational oppression which can become so inveterate and deeply rooted that it creates irreversible and permanent damage to the spiritual, physical and mental development of large segments of the African American population. The possibility of a slow and benign African American genocide is a very real possibility and, alas, it is forever near and lurking!

Today, the pressures from immigration, globalization and international trade have an indirect impact on the socioeconomic plight of African American workers; as economists Dr. Steven Pitts and Dr. Williams Spriggs stated in their 2008 policy brief, many blacks face a two-dimensional job crisis: high unemployment and low wages. In 2006, the black employment population ratio was 58.4 percent—meaning that almost 4 out of 10 blacks over age 16 were jobless. During the same year, 31.7 percent of blacks who worked full-time for at least 50 weeks earned less than $25,000—which was only 50 percent more than the federal poverty level for a family of one adult and two children.[2] Pitts and Spriggs further explained in this 2008 policy brief how the twenty-year economic slow-down during the period 1970-1990 undermined the socioeconomic plight of African Americans:

During the 1970s, the global economic environment also changed. A combination of higher energy prices, increased competition from Japan and Germany, and a slowdown in productivity threatened the dominance of U.S. Corporations. In response to this threat, many U.S. firms shut down; others relocated their businesses overseas. Many large businesses demanded concessions from their unionized workers. The living standards for all races stagnated, and the federal government took no steps to support U.S. workers. During the 1980s, the U.S. government accepted an unemployment rate that was higher than what was tolerated in the 1960s and pursued economic policies aimed at checking inflation instead of lowering unemployment . . . . Compounding this failure, Reagan became the first U.S. president who did not raise the national minimum wage since it was first enacted in 1938, allowing rising prices to erode the wage’s value to record lows. Reagan also signaled his attitude toward labor unions when he fired striking air traffic controllers and replaced them instead of negotiating with them on their demands for higher wages and better working conditions. This ushered in an era of destructive labor-management relations, beginning the current trend of decoupling increases in productivity from the earnings of working Americans. Currently, the average CEO compensation at major corporations is 262 times the average income of corporate employees.[3]

In America Works: The Exceptional U.S. Labor Market, economist Richard B. Freeman described another phenomenon called The Great Doubling, where the doubling of the global workforce has presented the U.S. labor system with its greatest challenge since the Great Depression.[4] In this phenomenon, workers from China, India and the ex-Soviet bloc have doubled the number of laborers available to American business; Chinese and Indian workers are rapidly attaining advanced university degrees in science and engineering and high-tech job skills; meanwhile [m]ultinational firms have responded to the increased supply of highly educated workers by ‘global sourcing’: looking for the best job candidates anywhere in the world and locating facilities, including high-tech R&D and production, where the supply of candidates is sufficient to get the work done at the lowest cost.[5] Further, Freeman thus describes the impact of The Great Doubling, as follows: The immediate impact of the entry of China, India, and the ex-Soviet bloc into the world economy was thus to reduce greatly the capital-to-labor ratio. This almost certainly shifted the global balance of power to capital. With a new supply of low-wage labor, firms could move facilities to lower-wage settings or threaten to do so if workers did not agree to wage concessions or changes in work conditions that were favorable to the firm.[6] Additionally, the increasing influx of immigrants from Latin America into the United States has had a negative effect upon wages, impacting low-wage African American workers. Hence, the historical forces that currently shape the industrial life of African American workers is global, profound and decisive. The perilous economic condition of African Americans, which Pitts and Spriggs described, have profound global causal factors, which Freeman discusses in America Works. Thus, no longer can the NAACP, the National Urban League, the Congressional Black Caucus or civil rights leaders take a simple parochial, regional, national or isolationist approach to the African-American labor question—that approach must also be international.[7]

The African American labor and employment crisis became quite clairvoyant to me, one day in September 2003, when the Tampa Tribune published an article titled, Blacks’ job losses fuel disillusionment, which succinctly summarized that crisis:

[D]uring the 1990s economic boom, when blacks flooded the labor market . . . [m]any snagged steady hours, health insurance and retirement benefits, and were able to save money. The black jobless 1992, droppred to a 30-year low of 7 percent in April 2000.

But as quickly as blacks moved ahead, they have fallen backward. The black unemployment rate in July stood at 11.1 percent, higher than that for Hispanics (8.2 percent) and double the rate for whites (5.5 percent). Heavy job losses in manufacturing and service hit a disproportionate number of blacks, and private-sector cuts sent more college-educated blacks to the unemployment lines than ever before. Many were the last hired, the first fired. Some have lost homes and their independence; others are fighting to keep what they’ve got. Job training is harder to come by, and so is transportation to jobs far from home. They struggle to provide for their children and are forced to put on hold plans to better themselves—such as returning to college or learning a new skill. The result is widespread disillusionment among those who are ‘out there’ again so soon after getting out from under . . . . ‘If the recent economic boom could have been extended for several more years, it would have significantly lowered the overall jobless rate in areas such as the inner-city ghetto, not only for lower-skilled workers—but for those who have been outside the labor market for many years, said William Julius Wilson, a Harvard University social policy professor . . . . ‘Blacks feel frozen out of the work world,’ said Eddie Read, a controversial Chicago community activist who shut down construction sites in black neighborhoods n the 1990s, demanding that the work force reflect the community. ‘The overwhelming reason that blacks are not working is something that nobody wants to grapple with these days, and it’s racism. The Tampa Tribune (Sunday, September 28, 2003), Career Seeker, pp. 1-2)

WHAT LAWYERS AND JUDGES SHOULD DO

American lawyers and judges need to take the lead, starting with the revitalization of critical freedoms found in the Thirteenth Amendment, United States Constitution. There is, for instance, ample room for even strict constructionist jurists to read into the Thirteenth Amendment a special mandate to stop placing badges and incidents of slavery upon African Americans; and from that mandate comes a much broader mandate to stop discriminating against African Americans simply because their fore-parents were once slaves. That constitutional obligation passes to every person who is a recent immigrant to America who had nothing to do with slavery; in other words, if an immigrant is a Korean, Japanese, Cuban, Mexican, Haitian, Nigerian, Russian, Englishman, etc, and he or she lives in the United States or has become a citizen of the United States, then he or she too must assume all of the burdens, as well as the benefits, of being a United States citizen. A lingering burden which America still carries is the debt from chattel slavery and from the 240 years of economic exploitation of African Americans, followed by another 140 years of failed policy experiments. American lawyers and jurists could, as the third branch of our government, provide leadership and guidance to the rest of the nation. American lawyers and judges could promulgate a creative jurisprudence that once and for all roots out the vestiges of chattel slavery. I would argue that a law that embraces a conservative self-help, rugged individualism philosophy as well as a liberal social safety-net philosophy could result in a jurisprudence that makes sense and that is fair. I would also argue that the experience of African Americans regarding immigration and subsequent generational mobility has not mirrored the experiences of other groups.[8]

First, the critical areas of African American life, which I have described as the three-legged stool—the parent-child relationship, the husband-wife relationship, and the employer-employee relationship—warrant special laws or administrative rules for African Americans who meet certain socioeconomic profiles which tend to reflect generational poverty stemming from slavery. From a constitutional standpoint, lawyers and jurists should vindicate these laws and policies from the standpoint that, historically, both the Thirteenth and Fourteenth Amendments permit such laws and policies and thus they are constitutional. I would argue that these proposed laws and policies would easily pass the strict scrutiny analysis, which says that a racial designation in any law or policy must be supported by an overriding, compelling governmental interest, which in this case would be to root out the last vestiges of chattel slavery among African Americans. Once the judicial branch of government—the judges, lawyers, bar associations and law schools—do their part; then it would be up to the rest of the nation to follow through and deliver justice.

Second, the Congress and the state legislatures, focusing on the parent-child and husband-wife relationships among African Americans, could reward lower socioeconomic African American parents who make sound, rational choices with respect to raising their children, by taking personal responsibility to