Perhaps Mr. Muhammad never really had a solid case from the start. Or…
Perhaps the case of Muhammad v. Caterpillar, Inc. exemplifies how companies can “diffuse” a hostile environment, while legally guiding hostile employees in the execution of a career-ending maneuver against a minority employee. It may provide a view into one way companies have learned to use a “zone defense” to undermine claims, maximize cost to the plaintiff, while allowing psychological warfare to take its toll on the employee.
The issue for Mr. Muhammad clearly wasn’t whether the Caterpillar work environment was hostile in a literal sense. The indication was that hostility was present, by most social standards. Rather, the issue was only whether the standard of proof could be met in a legal sense in a court system that may itself be structurally hostile to such claims, and whether the employer responded in a reasonable manner.
The unfortunate fact is that despite being at least cognizant of the better than average chance they will encounter discrimination in the work place, beleaguered minority/female victims are most often untrained in even elementary discrimination laws, rules, guidelines and defensive procedures, and are seemingly unaware that, although strong prejudice may be an individual trait, workplace discrimination is more often a team sport.
In a recent article, “How swift response to racial slurs and graffiti defused a discrimination claim,” Eric B. Meyer reviews the case for www.TheEmployerHandbook.com.
In a thinly disguised gloat, Meyer gratuitously begins, “…Mr. Muhammad not only dealt with slurs, but also terrible, hurtful graffiti. But, as graffiti went up and Mr. Muhammad complained, the company responded…” with warnings to employees. Warnings only, no other investigation or discipline. Meyers then adds, “In sum, Caterpillar took reasonable efforts to ensure that the harassment did not repeat itself. And even though Mr. Muhammad had to endure this opprobrious…*** Googles “opprobrious” — swish! *** …behavior multiple times, each time the company responded reasonably. The response doesn’t have to be perfect; just reasonable.”
Caterpillar, Inc. had become a virtual “Monsters, Inc.” for Mr. Muhammad. Multiple egregious actions, quick management reactions (not solutions) indicated an ongoing issue, multiple players, Diversiphobe PsyOps, conspiratorial silence, torturous legal processes, unfruitful and superficial management investigations, all headed for a predictable outcome. In this case, ending like tens of thousands of others each year, it demonstrates that victims such as Mr. Muhammad, usually lack the mindset, situational and tactical awareness and legal sophistication required to a) conduct their own investigations, b) clearly document even micro-events, and c) link small but critical events into a cohesive, coherent case. Untrained and unskilled at internal environmental scans, spotting clues, or building accurate and timely records of subtle micro-injuries and overt acts in evidence of the crime in progress, employees may also even labor under the assumption they are battling only the employees directly engaged in the discriminatory behavior. In actuality, they are also battling the in-the-know standers-by, management, the HR and the Legal Departments. The battle lines were drawn from the very first report they raised.
On the other hand “The Company” will usually have expert staff well studied in managing hostile employee activities, deflecting or shielding responsibility or accountability for the hostile environment so as to minimize evidence and protect The Company, particularly when it comes to the actions or behaviors of supervisors or managers. The objective is limiting company legal exposure rather than inoculating the workplace against hostility or protecting the targeted employee. Providing scattergun “warnings,” boilerplate disclaimers, and even detailed advisory warnings to specific hostile employees without firing them may actually constitute strategic advice that legally facilitates sustaining employee hostilities as they pass the game baton to others, as happened in this Caterpillar, Inc. case.
Even a narrowly targeted verbal or written warning is the equivalent of a “paint ball” hit for a Diversiphobic coworker. As in the case of Caterpillar, the offending employee may be taken out of the current game with a warning, but lives to play again in the next round. Though the “warned” employee is considered wounded or dead, the battle is left to rage on in the hands of the as yet unmarked Diversiphobic team members.
Minority employees, like most employees, treat “The Company” with a default presumption of innocence, an assumption that the employer means them no harm. Unfortunately, in the case of potential discrimination cases, that is both a psychological and strategic error, even more so once a formal complaint of any kind is lodged. Acting in accord with that presumption of innocence, even in the face of a mere dawning suspicion of trouble on the horizon, employees often place themselves at a cognitive disadvantage which later proves fatal to their case. Assuming that real or perceived acts of hostility are merely isolated acts of individuals instead of early warning signs of team complicity can numb or blind the target employee to what would otherwise be obvious aggression. The more efficacious presumption might be that absolutely any overtly hostile employee assumes at least some level of tacit support from workmates and/or The Company, otherwise they would likely have acted covertly, or not at all.
“Battle tracking is the centerpiece of situational awareness during combat operations,” according to Lieutenant Colonel Jeffrey S. Wilson, an observer-controller at the National Training Center at Fort Irwin, California. Failing to treat hostile acts as single skirmishes in an ongoing conflict, the employee will more than likely suffer gaps in their own record of the case, and may even unwittingly commit acts or behave in a manner not conducive to the establishment of even a colorable case, let alone a winning case. Any who have won cases will attest that Lt. Col. Wilson’s military combat operations advice applies, “Aggressive local…reconnaissance and security planning must begin early in the process of developing courses of action…”
Case in point, according to the brief, “The evidence submitted by Mr. Muhammad indicating that the suspension was retaliatory in violation of Title VII is minimal.” (p. 11) “Muhammad also asserts that his actions in checking the bid board [during work hours] could not have been the actual reason for his suspension because he personally knows of others who engaged in similar conduct and were not disciplined. But Muhammad provides no names, affidavits, or other evidence as to such persons.” (p. 12) Making the case would have required an aggressive reconnaissance mentality under which Mr. Muhammad might have discreetly made consistent observation of documented unaddressed routine violations of work rules by others encountered in his normal course of work and personal conduct, whether he believed them to be directly related to his case or not.
What might that “recon” mentality do to the trust level fellow employees have for Mr. Muhammad? Before you decide that it would work to Mr. Muhammad’s detriment, consider that silence prevailed, apparently no one at Caterpillar came forward to expose the attack artist(s), nor did Caterpillar announce possession of or attempt to secure surveillance records of the weaponized art installation (i.e. graffiti). Mr. Muhammad was on his own. Any support he received came from those legally and contractually bound to do so, specifically his union representation.
Mr. Muhammad’s case did well to get as far as it did, doomed as it was from the start, and costly to all sides. Between the guerrilla warfare tactics of the employees, the blocking by Caterpillar’s HR, the fine corporate legal staff downfield and the rigorous demands of discrimination law, Mr. Muhammad and the majority of similarly beleaguered victims have little chance of success. The response of Caterpillar resulted in the equivalent of a “not guilty” finding. It’s heartbreakingly easy to recognize that the documented epithets and graffiti means it was clearly not a finding of “innocent.” The offending employees were never revealed, dismissed or otherwise disciplined. Mr. Muhammad paid the price in lost wages, psychological and emotional harm for his efforts to defend…but he still has his job, for now. Yet, he also bears the knowledge that his lawsuit will likely preclude easily finding work elsewhere, and has effectively ended any hopes for career advancement at Caterpillar, Inc. Mission accomplished.
Workplace training teaches employees how to avoid overt and actionable conduct that legally constitutes discrimination, harassment or would constitute a colorable case for a hostile environment. On the other side of the coin, there is no training/coaching for minority employees that teaches the mindset, ethics and lawful processes for surveillance, documenting and legally establishing when individual workplace animus crosses the line to the level of hostile environment and discrimination. That’s the last thing “Diversity and Inclusion Consultants” would do, to instruct employees on strategies and tactics for making an effective defense against Diversiphobic forces at all levels in their organizations.
To reframe one of Lt. Col. Wilson’s assertions by inserting [in brackets] civilian workplace terms, “Situational awareness is the key to effective [intercultural] battle [in the workplace]. The [employee] can acquire and maintain sensitivity to battlefield conditions by establishing and maintaining efficient and effective battle tracking, focused and evolutionary [case critical information requirements], representation at the decisive points of [case] planning, and aggressive local reconnaissance. Implementing these suggestions will increase the [employee’s] ability to provide timely and competent [case support] across the length and breadth of the [workplace] battlefield, today and tomorrow…” both before and after the first formal complaint is lodged.
Thus, in order for the employee to survive, win the case, and perhaps keep his or her job, they have to become an internal operative. Literally, they must take up a second job — becoming an expert in timely and robust collection of legal evidence for a solid discrimination case. This requires an altered existence, relationships with even long time coworkers, peers and superiors and even friends permanently disfigured, while at the same time bearing the pressure of performing flawlessly in their day-to-day work to avoid any legitimate excuse for discipline or giving cause for dismissal.
This kind of internal warfare, the pervasive differences-based employee conflict at the extremes, is a prominent symptom of a failed system of managing intercultural conflict. The divisiveness of workplace DIVersity programs may have even exacerbated the consumption of enormous amounts of energy, government services, corporate and employee personal resources every year in the ongoing and endemic differences-driven battles and skirmishes. “More than 50 percent of the largest companies estimate that the average cost to arbitrate a single-plaintiff case to conclusion is just under $100,000. One in five of the largest companies place the average cost at about $500,000. These figures exclude settlement monies paid to the plaintiffs.” (Bashen Corporation, 2009)
Can we break the cycle that differences-based strategies have locked into Corporate and even social thinking? We believe so. InclusiveWorks® is working to bring innovation, to promote managing intercultural conflict out of your workplace. Join the discussion today.
Copyright © 2014 – Robert D. Jones – All Rights Reserved
Suggested Readings: “How swift response to racial slurs and graffiti defused a discrimination claim”  United States Court of Appeals for the Seventh Circuit No. 12-1723
WARNETHER A. MUHAMMAD, Plaintiff-Appellant, v. CATERPILLAR, INC., Defendant-Appellee. Appeal from the United States District Court for the Central District of Illinois.
No. 09-cv-2172 — Michael P. McCuskey, Judge.
ARGUED OCTOBER 4, 2013 — DECIDED SEPTEMBER 9, 2014
Before EASTERBROOK, ROVNER, and WILLIAMS, Circuit Judges.  Psychological warfare One very general definition of psychological warfare is: “The planned use of propaganda and other psychological actions having the primary purpose of influencing the opinions, emotions, attitudes, and behavior of hostile foreign groups in such a way as to support the achievement of national objectives.”  Definition: “colorable case.” “The Psychology of Terrorism: Clinical aspects and responses – Google Books”.
 Situational Awareness and FSB Battle Command, by Lieutenant Colonel Jeffrey S. Wilson MAJORITY OF EMPLOYMENT DISCRIMINATION LITIGATION IS BROUGHT BY INDIVIDUALS  Properly Investigating Complaints of Harassment
Volume 18, Number 1 September/October 2008
How to Limit a Company’s Exposure, By E. Jason Tremblay  The Thirty Six Strategies – A Unique Collection of Ancient Chinese Proverbs
Based on Road to SR: Sanshiliuji with Chinese enterprises in strategic thinking, by GE CUN GEN  “Measuring the Real Costs of EEO and Wokplace Claims,” a Bashen Corporation White White Paper
Note: “By a “colorable case” or “colorable invocation of jurisdiction” it is meant that some person, apparently qualified to do so has appeared before the justice[s] and made complaint under oath and in writing, stating at least some fact or facts which enter into and may, under some conditions, or in co-operation with some other unstated fact or facts, constitute a criminal offense, or stating some fact or facts which bear a general similitude to a fact or facts designated by law as constituting an offense; in either case, calling upon the justice[s] to pas upon their sufficiency to elicit the process issued.” (Ruling Case Law: As Developed and Established by the Decisions …, Volume 16, edited by William Mark McKinney, Burdett Alberto Rich, Edward Thompson Co., 1914)