Background About The Case
The case was filed as a class action in California state court on the same day the parties asked the court for preliminary approval of the settlement agreement. In the complaint, current and former Kaiser employees alleged that the company maintained a common policy related to promotions and pay that operated as a glass ceiling for Black employees who worked in California.
Regarding glass ceiling discrimination, the complaint claims that while Black employees have similar job performance evaluations as compared to non-Black employees, Kaiser does not promote Black employees in the same manner. This includes allegations that Kaiser has a “tap-on-the-shoulder” system of promotions from which Black employees are generally excluded. Some of the class representatives allege that they had applied for more than ten promotions and were never selected, despite being better qualified than the white employee who received the promotion.
As to pay discrimination, the class representatives asserted that they did the work of a higher-level job, for example a Director, without getting the Director-level pay. Kaiser has denied the allegations in the complaint.
Proving Glass Ceiling Discrimination Cases
The first step in proving a glass ceiling discrimination case is to show that:
- You are a member of a protected class (for example, a woman, Black, Hispanic)
- You applied for and were qualified for the promotion; and
- After you were rejected, the position remained open or was filled by a person with similar qualifications.
Next, if the initial showing described above is made, then the employer is required to give a reason why it did not select the employee for the promotion. Importantly, at this stage, the employer can simply offer a reason, they do not have to prove that this reason was what actually motivated their decision.
Assuming the employer produces this explanation, then the employee needs to show that this explanation was not the true basis for the employer’s decision. That is, the employer’s claimed reason was simply a pretext for discrimination. Not all courts apply the same analysis regarding pretext, but generally pretext can be shown by:
- Evidence that the employee was substantially better qualified than the person selected;
- Similarly situated employees of a different gender, race, national origin, etc. were treated better;
- Shifting and inconsistent reasons offered by the employer;
- Exposing other flaws in the employer’s stated reason (for example, significant deviations from normal procedures in the promotion process);
The ultimate question—which must be proven by a preponderance of the evidence—is whether, based on all the evidence presented, a jury could reasonably infer that the employer discriminated against the employee by not selecting them for the promotion.
Steps To Eradicate The “Concrete Ceiling” For Black Employees
As noted above, the Kaiser settlement illustrates many of the issues surrounding the “concrete ceiling” for Black employees in companies around the country. The lack of diverse employees in the executive ranks of companies is often referred to as glass ceiling discrimination. The barriers facing Black employees, however, are even more acute (especially for black women), which has led many to dub promotion discrimination against them as a “concrete ceiling.”
No “magic bullet” exists to stamp out employment discrimination throughout corporate culture. But steps can be taken and only through trial and error will the most constructive anti-discrimination tools be identified. Below are some initiatives that have shown promise and if companies continue to build on and experiment with these ideas, then hopefully additional progress will be made toward the goal of a more equal and diverse workplace and leadership team.
Tone At The Top Is Key
If the CEO, executive team and Board of a company are not enthusiastic supporters of greater racial diversity within the company and in its top ranks, then it’s doubtful that others will make it a priority.
On the other hand, where the CEO and top leaders make it clear that diversity is both important and will also help the company grow and succeed, then the rest of the workforce is far more likely to work towards that goal. Tone at the top matters.
Tying Bonuses To Diversity And Anti-Discrimination Initiatives
An increasingly popular step that employers are taking to encourage diversity is to link executive bonuses to how well these senior leaders advance and champion the company’s diversity and anti-discrimination policies. And doing so makes sense because if an objective is important, then the company should ensure (1) its employees know about it and (2) that their performance in meeting this goal will be measured along with the company’s other core values and targets.
In corporate America, few carrots better achieve desired results than money. Accordingly, companies like Uber UBER +1.7% are “incorporating ethical business practices, diversity and inclusion, and other values from Uber’s Business Code of Conduct into its executive compensation program.” Experience shows that compensation provides a powerful tool for creating incentives for behavior, and reinforcing a company’s values.
For many people, money is the ultimate motivator and if linking bonuses to diversity efforts successfully improves workplace culture, then this could be a game-changer.
Effective Mentoring Programs
A huge predictor in whether a candidate ultimately receives a top-level position can be the opportunity to talk with, learn from, and make lasting connections to the senior leaders in the company. And the way this usually occurs is through networking or mentoring programs, which can be either formal or informal. Unless the company has a robust program providing Black employees with access to and personal connections with senior leaders, then it will continue to be very difficult for these employees to win the support of and vocal advocacy from these senior leaders that are needed to get the promotion.
Companies with more diverse top leadership often have strong mentoring systems in place to foster these important connections. Similarly, companies that are committed to using (and listening to) a diversity task force or diversity manager tend to see more positive, significant increases in management diversity.
If You See Something, Say Something
The burden of assuring equal treatment at work too often falls squarely on the shoulders of the employees who are discriminated against. While white employees may agree that a more diverse leadership team is necessary and will help the company, it is not enough to simply hope this happens. Rather, white employees must call out and object to discriminatory statements, jokes, and stereotypes, unfair standards or criteria used when making selection decisions, and other forms of unequal treatment. Only then will all employees begin to see that discrimination at work will not be tolerated, and only then can real change occur.