TIPS FOR BUILDING AN ANTI -RACIST WORKPLACE WHILE .

TIPS FOR BUILDING AN ANTI-RACISTWORKPLACE WHILE PREVENTINGEMPLOYMENT LIABILITY IN THE AGE OF#BLACKLIVESMATTERJUNE 23, 2020Marie Burke KennyAdriana R. OchoaCONVERSATIONS WITH COUNSEL: EMPLOYMENT EDITION

Agenda Recognizing Racism At Work In 2020 Employment Laws Implicated In The Age Of#BlackLivesMatter Preventing Employment Liability Creating An Anti-Racist Workplace1 2020 Procopio, Cory, Hargreaves & Savitch LLP

POLL QUESTION NUMBER ONE2 2020 Procopio, Cory, Hargreaves & Savitch LLP

Answer: No. This statement failsto acknowledge white privilege.3 2020 Procopio, Cory, Hargreaves & Savitch LLP

RECOGNIZING RACISM IN 2020COVERT OR PASSIVE RACISMOVERT RACISM Implicit bias Racial epithets, slurs or “jokes”– Wonder Bread case Micro-aggression– EEOC/Laquila case Lack of mentoring or training Tokenism Racist objects at work Inconsistent standards orenforcement of policies for Blackemployees– Noose in workplace Discrimination in firing Discrimination in hiring All white decision-makers Race-based pay disparity Denial of racism or white privilege Racist grooming policies White-centric policies and practices– No locks, braids or beards4 2020 Procopio, Cory, Hargreaves & Savitch LLP

OVERT RACISM5 2020 Procopio, Cory, Hargreaves & Savitch LLP

WHAT’S WRONG WITH “ALL LIVES MATTER”?WE SAID BLACK LIVES MATTERWE NEVER SAID ONLY BLACK LIVES MATTERWE KNOW ALL LIVES MATTERWE JUST NEED YOUR HELP WITH #BLACKLIVESMATTERFOR BLACK LIVES ARE IN DANGER!6 2020 Procopio, Cory, Hargreaves & Savitch LLP

Ask Siri 7 2020 Procopio, Cory, Hargreaves & Savitch LLP

POLL QUESTION NUMBER TWO8 2020 Procopio, Cory, Hargreaves & Savitch LLP

Answer: (B) Not okay. This is acommon racial microaggression.9 2020 Procopio, Cory, Hargreaves & Savitch LLP

COVERTRACISM10 2020 Procopio, Cory, Hargreaves & Savitch LLP

Relevant Employment Laws Title VII of the Civil Rights Act of 1964 (“Title VII”) California Fair Employment & Housing Act (“FEHA”) Includes The California Crown Act California Constitution Right To Free Speech Right To Privacy California Labor Code Sections 1101 and 1102 Protection Of Political Activities11 2020 Procopio, Cory, Hargreaves & Savitch LLP

More Employment Laws California Labor Code Sections 96(k) and 98.6 Lawful conduct during non-working hours California Labor Code Section 432.7 Prohibits termination for being arrested California Labor Code Section 232.5 Prohibits employer from restricting employees indiscussing terms and conditions of work National Labor Relations Act Protects concerted activity by employees12 2020 Procopio, Cory, Hargreaves & Savitch LLP

PREVENTING EMPLOYMENT LIABILITY:LESSONS FROM #BLACKLIVESMATTERSIN THE NEWS13 2020 Procopio, Cory, Hargreaves & Savitch LLP

THE EMPLOYER DID WHAT?o Taco Bell Employee Fired For BLM Mask: After sharingonline how he was fired for wearing a BLM mask, angrycustomers are calling for a boycott with hashtags#RIPTacoBell and #TacoBellIsOverParty.o Employee Sent Home For Wearing BLM Mask: Afterattending his first BLM protest, a young black employeescribbled BLM on his surgical mask but was not allowed towork.o 100,000 Reasons Why “Blue Lives Matter” Is A Problem:A black government employee sued for race harassmentafter her employer refused to make a co-worker remove a“Blue Lives Matter” flag at the office.14 2020 Procopio, Cory, Hargreaves & Savitch LLP

OTHER EMPLOYER ACTIONSo Philadelphia Whole Foods Employee Fired: Aftercriticizing her employer on social media for providingfree food to police during anti-police brutalityprotests.o FaceBook Engineer Fired: After publicly criticizinga coworker on Twitter for not adding a statement ofsupport for BLM to documentation for an opensource project.o In 2016, Zuckerberg scolded employees forcrossing-out “Black Lives Matter” on signaturewalls.15 2020 Procopio, Cory, Hargreaves & Savitch LLP

THE COACH High School Wrestling Coach Fired After PostingPhoto Mimicking George Floyd Death: In aclaimed attempt to demonstrate that placing a kneeagainst a suspect’s knee does not necessarily “killthem,” the coach posted this photo and statement.“Not dead yet I’m doing this forare [sic] police officers the mediais a race baiting machine and I’mtired of it I’m going to speak outevery time if you don’t like thatI’m sorry but I love All people Wake Up America.”– Members of the public disagreed voicing concern aboutwhat the coach was teaching high school students anddemanding the school take action.– The School agreed stating "His behavior was notconsistent with our equity initiatives andnondiscrimination policies.” After being fired, the coach said “I am not racist” – All I didwas show that16 “I was OK from a knee on my neck.” 2020 Procopio, Cory, Hargreaves & Savitch LLP

DEALING WITH RACIST BEHAVIOROUTSIDE OF WORKo Jersey Men Fired And Suspended: After mimickingGeorge’s death (one kneeling on the neck of the other)during a BLM protest, one man was fired (FedEx) andthe other suspended from his job as a corrections officer.o Philadelphia White Employee Fired: After beingcaught on camera ripping down BLM signs and tellingsomeone “not to me, they don't” – Philadelphiaemployee was fired by family court.o NYC HR Employee Removed: After re-posting this “Iproudly oppose the Black Lives Matter movement. Youshould too. “17 2020 Procopio, Cory, Hargreaves & Savitch LLP

MORE BEHAVIOR OUTSIDE OF WORKo CA Man Fired For His Wife’s Public Racism: After a video of his wifequestioning a man for writing Black Lives Matter in chalk on his propertywent viral, the husband was fired.o Note: The husband was seen on video joining in the questioning.o White Employee Claimed Reverse Discrimination: After he was firedfor posting a message on Facebook criticizing the Black Lives Mattermovement.18 2020 Procopio, Cory, Hargreaves & Savitch LLP

COMPANY RESPONSES TO BLMo Ben & Jerry’s Bold Statement Against RacialInjustice: ““All of us at Ben & Jerry’s are outraged bythe murder of another Black person by Minneapolispolice officers.” “We Must Dismantle White Supremacy.”o LinkedIn’s Virtual Town Hall On Race Did Not GoWell: Employees posted anonymous commentscriticizing LinkedIn’s diversity hiring calling it “racismagainst white people,” the BLM movement, and claimingwhite people experience “racial injustice too.”19 2020 Procopio, Cory, Hargreaves & Savitch LLP

COMPANY RESPONSES TO BLMo Starbucks Flip-Flops On Employees WearingBLM Attire: After banning BLM attire because“it could amplify divisiveness,” the Companyreversed the policy and provided 250,000Starbucks-branded BLM shirts to employeeswho want to wear them.o CEO Warns Minority Employees AgainstBLM Strike: After learning of a potentialwalkout, the CEO warned minority employeesnot to use threats to disrupt work.20 2020 Procopio, Cory, Hargreaves & Savitch LLP

Preventing Employment Liability Revise policies to include specificexamples of unacceptable racism Audit key areas for workplace racism Recruiting and hiring Benefits, pay and working conditions Overt (slurs, epithets, racist objects) Performance reviews and advancement Covert (micro-aggression) Establish a flexible complaint procedure Training and development Do not require “chain of command” Mentoring, meetings and social connection Openly encourage employees to reportracism Reiterate policies of zero tolerance forracial harassment and discrimination Conduct training for all employees Revise policies to define “race” to include Provide tools for employees to respond toracism in the workplace (rehearsal) historically associated traits, such as hairstyles and protective hair styles such asbraids, locks, and twists21 Consider an anonymous hotline to facilitatereporting 2020 Procopio, Cory, Hargreaves & Savitch LLP

Preventing Employment Liability Understand “why” employees sue Train supervisors on how to properlyrespond to all complaints Hire and train strong leaders Employees often sue because of a bad boss Overt, implicit or vague complaints Treat employees with dignity and respect Promptly investigate complaints Communicate effectively Use a neutral investigator Empathy and active listening Consider all California applicable laws When in doubt Labor code protections (political activities,terms/conditions, NLRA etc) Provide coaching and mentoring Provide job skills support Take corrective action Action that will stop the behavior Use diverse decision-makers And prevent it from repeating Consider disparate impact in layoffs Keep personnel information private22 Release agreements 2020 Procopio, Cory, Hargreaves & Savitch LLP

CREATING AN ANTI-RACIST WORKPLACE Understand the importance of being “anti-racist” Have leadership acknowledge white privilege and systemic racism– And how it affects the workforce (e.g. 2% black lawyers or 7% black engineers) Get educated and use reliable information– Understand how/why “all lives matter” and other similar statements offend Stop and assess before taking action– Or end up making it worse (i.e. the LinkedIn problem) But don’t wait too long– Silence can be interpreted as complicity– There are some action steps that are “no brainers” Unequivocal statements of support Think beyond diversity to inclusivity– All voices should be heard, valued, and recognized– Facilitate difficult conversations about racial 23inequality 2020 Procopio, Cory, Hargreaves & Savitch LLP

CREATING AN ANTI-RACIST WORKPLACE Establish an effective Diversity and Inclusion Committee Include a Racial Equality task force or sub-committee Develop a proactive plan for increasing diversity and redressingracism with input from affected employees Have measurable and achievable goals Take consistent and effective action on the plan Don’t lose momentum Retain an expert or consultant if needed Conduct implicit bias and anti-racism training ml Increase diversity hiring, training and advancement Engage in internal and community outreach Mentoring, scholarships and internships24 leadership Increase diversity 2020 Procopio, Cory, Hargreaves & Savitch LLP

THANK YOU!Adriana R. Ochoaadriana.ochoa@procopio.com619.525.3861Marie Burke KennyMarie.Kenny@procopio.com619.515.387625 2020 Procopio, Cory, Hargreaves & Savitch LLP

Racist grooming policies – No locks, braids or beards . COVERT OR PASSIVE RACISM Implicit bias . one man was fired (FedEx) and the other suspended from his job as a corrections officer. o Philadelphia White Employee Fired: . reversed the policy and provided 250,000 Starbucks-branded BLM shirts to employees