Trump and Workplace Discrimination (w/ Katie Benner)

Zach welcomes Katie Benner, the Justice Department Reporter at The New York Times, to the podcast to discuss Trump’s attempting to roll back several protections for minorities under the Civil Rights Act, particularly intending to no longer enforce the law in cases in which a policy or practice had a disparate impact on a minority or other group. Check the links in the show notes to read Katie’s recently published article regarding the topic!

Read the article Katie and her colleague Erica L. Green wrote for The New York Times about the subject by clicking here.

You can connect with Katie on LinkedIn and Twitter.

TRANSCRIPT

Katie
We are a society. It starts with us – how we live our lives, how we treat one another, and what we believe to be correct conduct, but the government stands there basically holding a stick to say, “You know what? If it doesn’t work though, we’re here as a backstop to make sure that in certain contexts we can enforce–” It’s an enforcement mechanism.

Zach
What’s going on, y’all? This is Zach with Living Corporate, and I hope that wherever you’re listening to this, whenever you’re listening to this, that you’re okay. I’m recording this on the Sunday after a week of just insanity with the white supremacist insurrection on the state capitol, the nation’s capital, and just looking for some space to recuperate mentally. Like, the last time you heard me, I talked about how, you know, organizations, Black folks within organizations, this is a wake up call, or rather another call to awareness and action. There’s just exhaustion, the lack of accountability that folks face, and frankly, like, the incredible and extreme benefit of the doubt that leaders receive, and that white folks in particular receive, in not being held accountable for the racist things that they do. Even now, you’re seeing folks on major media networks justify these actions or play whataboutism with these actions or, you know, try to find the silver lining with these actions. And it’s triggering. It’s insulting. It’s infuriating. It’s dehumanizing. It’s wrong. I think what’s important for us all to keep in mind is that the function of white supremacy–racism is not always overly explicit, right? It doesn’t always have to be a cross burning. It doesn’t always have to be a hard slur or even physical violence. It can be passive, right? It can be subtle. It can be needled over time. In certain ways, those actions are almost worse because there’s a certain level of grading that those actions take and anchor and impact that those actions have. And so I’m really excited about the conversation that we’re going to be having today, and the conversation we’re going to be sharing with you, as we talk a little bit about the Trump administration and the actions that they’re taking to roll back civil rights legislation that directly impact Black and brown people at work, that directly impact differently-abled people at work, that directly impact women of all backgrounds at work, that directly impact queer folks at work, right? That directly impact first generation Americans and immigrants at work. Like, it’s important that we keep our eyes open and our heads on a swivel. We see like these huge, you know, acts of just absurdity and open white supremacy as we did last week, but there are other actions that we have to make sure that we’re mindful of. And so I’m excited, again, about the discussion we’re going to have a little bit later with Kate Benner of the New York Times, but before we do that, before we get to that conversation, we’re going to TAP In with Tristan.

Tristan
What’s going on, y’all? It’s Tristan of Layfield Resume Consulting, and I’ve teamed up with Living Corporate to bring you all a weekly career tip. Today, let’s talk about the importance of knowing your worth and how you can keep track of it. “What’s your career story?” This is a question I ask quite a bit in calls with my clients, and initially most of them struggle with it. Many of them will pose the question, “Well, who cares about career stories?” The answer is you. Well, at least it should be. These stories form the core of many of our interview responses and can come in handy when you update or tailor your resume, write a cover letter, or even while networking, but if you don’t keep a record of what you’ve done and don’t adequately reflect on that, you’ll find out how the experiences you think you’ll never forget can easily be forgotten. In today’s world, we can’t afford that. We have to be our own biggest advocates within our career, and we can’t do it if too many pieces of the puzzle are missing. Often times many of us go into negotiations or requesting a raise from our boss, but we haven’t taken the time to build a solid case as to why we are worth the amount of money we’re requesting. That’s not usually due to the fact that we don’t have the background that warrants it, but it’s typically because many of us don’t keep track of the things we’ve done or accomplished throughout our careers. So here are two suggestions that will help to mitigate this. Hopefully one of them works for you. The first is career journaling. Essentially, it’s very similar to regular journaling except you write down names, dates, and significant experiences or achievements from your career. You can highlight things like the amount of money you saved the company, being promoted to manage a team, or any metrics or accomplishment-based things that may be important within your industry. The second thing is simply creating a Google, Dropbox, or iCloud folder and throwing any awards, certificates, certifications or positive feedback in there. You know, create a document in there where you list your accomplishments and career highlights. Save relevant information or documents from projects you were on. Really put anything in there that will help you remember how amazing you are at what you do. There are so many instances where it’s important that you know what you’ve done in order to get further. Resume updates, annual reviews, salary increase requests, interviews, offer negotiations, and that’s just to name a few. In each of those areas, it is necessary to have a record of everything that you can review and utilize in developing a compelling career story to make your case. This tip was brought to you by Tristan of Layfield Resume Consulting. Check us out on Instagram, Twitter, and Facebook @LayfieldResume, or connect with me, Tristan Layfield, on LinkedIn.

Zach
Katie, welcome to the show. How you doing?

Katie
I’m well, thank you. Thank you so much for having me.

Zach
No, no, I’m excited, and I’m thankful for you to be here. Like, let’s get into it. I saw this piece that that you and Erica L. Green published on the fifth of January, and I just wanna hear more about it. “Justice Department seeks to pare back civil rights, protections for minorities. A late move by the Trump administration would stop enforcement of protections against discriminatory practices that have a disparate impact on protected groups.” Katie, what does that mean?

Katie
I think the best way to look at it first is to have an understanding of what it is that Title VI does. So the Justice Department, you know, is trying to change Title VI. Title VI is part of the landmark Civil Rights Act that was passed in 1964. And, you know, thanks to LBJ and MLK, we have this really important piece of legislation that has several sections to it, including Title VI, and what Title VI does is it bars any organization that takes federal dollars from discriminating on the basis of race, color, or national origins. So if you receive federal funding–a lot of workplaces receive federal funding, schools obviously receive federal funding, hospitals, teaching universities, these are all organizations, also police forces, they receive tons of federal monies. So under this rule, if you’re discriminating based on race, color, or national origin, you will have your funding pulled. And then you also face, you know, any of the punishments that would come from violating the Civil Rights Act. So it’s a really powerful tool, and the way that the Justice Department has enforced it is in two ways. One is to look at intentional discrimination, right? And which we saw, basically after I would say even in the 1970s, in the United States there were organizations that felt really free to intentionally discriminate, to state obviously in their rules, “If you are XYZ national origin or color, you don’t get to do A, B, and C,” but since the Civil Rights Act passage, we’ve seen less of that. More and more organizations realized that they could not intentionally discriminate because they would face consequences like having their funding pulled. Also, there was a C change, I think, in what we thought of as what was acceptable in terms of race and talking about race that grew through the 70s onward. Intentional discrimination began to lessen. I’m not saying it’s gone for obvious reasons, but it began to grow less and less. In the meantime, the Justice Department also enforced Title VI on another basis, and this is the one that’s at issue here, and that was the basis of what they call disparate impact. It’s a jargony way of saying a rule that seems on its face to be totally neutral but has the effect, the disparate impact, of harming people based on race or national origin. I can give you two good examples of this, one historic and one more recent. The historic example are the literacy tests that were given in the South that allowed people to vote in the Jim Crow South. Now, a literacy test on its face is not discriminatory. “Can you read?” It has nothing to do with your race, has nothing to do with your national origin. But if you’ve lived in a society like the Jim Crow South, where you are not allowed to go to school and learn to read because of your race, it is going to disproportionately impact you and keep you disenfranchised and unable to vote. So that’s the classic historic example of disparate impact. I’ll give you a more recent example that grew out of the pandemic. I spoke with a lawyer who represents a lot of Sikh groups right now, a religious group that has, like, a lot of national origin overlap. So this group of Sikh medical doctors, during the pandemic, the federal government, in their guidelines, only allowed for the use of N95, masks, right? Not meaning to be discriminatory. But if you are a Sikh, then you have to wear your facial hair for for religious reason. You’re not going to shave your facial hair to use the N95. It’s against your religion. Now, that disproportionately impacts these doctors, and so they really needed the United States government to relook at that rule, to keep people in the field able to be as impactful as possible and work and not be excluded for something that could not be helped. Those are just two examples of why disparate impact is important, and what the Justice Department is saying in a rule that they have proposed is they’re not going to look at disparate impact anymore. They just feel like that is too much of a gray area, they really are there to look only at intentional racism, which is what they say the Civil Rights Act looked at when it was passed. And then anything beyond that is an interpretation beyond what the law allows for, and if we want the law to allow for that, Congress needs to go back and repass the law with that language. And as we’ve seen, from how dysfunctional Congress has been, the chances of that are very low.

Zach
So then let’s talk about this. So to your point around the gray area, is it a gray area? Or is it just hard?

Katie
I think a lot of civil rights advocates say not only is it not a gray area at all, it’s also not difficult, and they use disparate impact in a lot of different ways. We’ve seen it used in the education context a lot, especially around school discipline under President Obama. The Justice Department worked with the Department of Education to come up with many, many new guidelines for schools, asking them to re-examine their discipline policies, because they were finding that special education students and students of color were being disproportionately impacted by rules around school discipline that had the effect of shuffling these tiers of students out of the schools and into their home suspended forever, some of them never to graduate with diplomas. And we all know that when you are graduating without a diploma, you are disproportionately going to be, you know, impacted in the job force, and you’re not going to be able to have as much opportunity. So that’s one way that they use disparate impact to show, like, a pattern and practice of discrimination that arose from rules that may or may not have been implemented to exclude people based on race. And what they were saying is it doesn’t matter if that was the intent, if that’s the effect, it’s still wrong. So I don’t think that it’s a gray area. What the Justice Department is arguing is that at the Supreme Court level, they are saying that the Supreme Court has not ruled clearly on this, and so they don’t want to touch it at all until they get clarity, either from the Supreme Court level, or they get clarity because, you know, there’s language written into law that specifically says disparate impact is something that the Justice Department is allowed to look at. So they’re not saying that disparate impact doesn’t exist, per se. They’re simply saying, “We don’t really want to touch this until it is either codified in law in a way that’s much more explicit, or we get explicit instruction from the Supreme Court. Otherwise, we’re not going near this. We’re the Justice Department. We enforce the laws, we do not make them.” And that is their posture.

Zach
Meanwhile, folks are being impacted, are being disparately impacted every day. So for those individuals, where’s the justice for them?

Katie
Right. And so we’re going to see probably a couple of things happen once this is published. This is not published, it’s still under review. First of all, the Justice Department, they submitted this change to Title VI on December 21 of 2020. So just right before the Christmas holiday, very quietly. They did not allow any public comment. They did not allow any rulemaking. So there’s going to be litigation over that. They’re going to be sued for filing the change as they filed it, because there are groups that are saying that was wrong. Normally you do have to have a public comment period. DOJ is using a legal loophole saying that because it has to do with administration or federal dollars there are exceptions that can be made for the public comment period that will be litigated. But on December 21, just before the Christmas holiday, they very quietly submitted this. And it really did fly under the radar. So once civil rights groups saw it was happening, they scheduled meetings with the White House Office of Management and Budget, which, you know, will decide on this change, and said, “We want to talk to–” You know, they had meetings scheduled all through next week. All of those meetings have been taken off the calendar. And there were meetings that were held last week where civil rights groups were very, very up in arms, saying, “This is the most essential tool we have to combat racism, basically, in our federal programs, in our jobs, in our workplaces, and in our schools, and you are taking it away from us.” Now the White House Office of Management and Budget has taken those meetings off the calendar for next week, and that says one of two things to me – that they are done with what they think of as their deliberation period and they’re either going to pull back on this altogether and not publish it in the register, which would make it final, or they’re going to publish in the register very soon. Now, given this administration’s posture on civil rights enforcement and what it thinks of as violations of civil rights, my guess is that they are going to publish it very soon, perhaps even, you know, before this radio show is broadcast.

Zach
My goodness. We’re gonna air this on Tuesday. You think they’re gonna do it before then?

Katie
You know, it could come as soon as Monday. There’s no reason why it wouldn’t. But, you know, like I said, I can’t predict the future. I’m just saying that when I see those meetings come off, it signals to me either they’re all done and ready to publish or they’re not going to do it at all. But keep in mind, pulling back, curtailing the use of disparate impact, especially in the context of policing and police forces, has been a very long time project of the conservative legal world, and when I say long time I mean decades long. Disparate impact and affirmative action are two places where we’ve seen conservative legal groups decide that the federal government has gone too far, that schools have gone too far, that workplaces have gone too far, in trying to undo the legacy of slavery, and they want those two things curtailed or stopped, and so it is hard for me to imagine that this White House’s Office of Management and Budget would just choose not to go forward and get this done in the waning days of the Trump administration. Again, that’s my best guess.

Zach
How awful. It is terrifying, and, you know, something–and I’m going to use the word radical because it’s my–I own this, but I know that’s a loaded term in a political context, but I’m gonna say it anyway, is that you think about the fact that it’s been 53 years since white Americans and Black and brown Americans have been equal on paper. You have 340 some odd years before that where there was not any type of legal or civil rights equality. And so just by that logic, you have less than a human lifetime of a federally regulated, federally mandated equality. We are going to need–I’m going to use the word again–radical thoughts and imagination on what does it really look like to combat this bedrock of slavery and white supremacy in this country? It’s so terrifying to me that there’s undoing on some fairly–I mean, in the grand scheme of things, not benign, but, like, not wild legislation. Like, these are some fairly, like, basic tools that civil rights activists have, and even those things are getting taken away.

Katie
Yes. And I think that’s one of the reasons why civil rights groups were so alarmed when they saw this get quietly filed in late December. It would be one of the biggest shifts in civil rights enforcement that we’ve seen since the 1960s. And for a shift that large, what they would argue is that there should be at least public debate, and by doing it this way, by the Justice Department filing, it sort of almost felt like, you know, in the shadows, when nobody was paying attention. It was for them extremely alarming, and in terms of the meaning and the impact that could have, that that would happen without any public debate.

Zach
Well, let me ask you–to that point around the civil rights leaders and the folks who are who the advocates who are really looking to fight against this, what the Trump administration is doing, what has been, like, the tambour of your discussions with them, if you’ve had any conversation with them at all? Like, are they discouraged or are they angry? Like, how would you characterize those conversations?

Katie
I would say that it’s sort of a mixed bag of, you know, people feeling very energized and ready to fight this, but also sort of fearing the far-reaching consequences of the change. So, you know, in the near term, they all say they’re just going to sue to get this stopped on administrative procedure grounds, meaning, again, more jargon, administrative procedure grounds. So basically they’re gonna sue and say, “This change wasn’t done right. You need a public comment period, you need to take in ideas from the public, you need to have opposition heard. We don’t care about the exceptions made for government funding and doling out of grants. This was not done correctly, and we are going to sue to stop it just based on the grounds that it wasn’t done right.” They did that before, when HUD tried something similar around housing rules and disparate impact. In the fall, they sued, and a judge in Massachusetts sided with the civil rights groups and said, “Okay, I’m going to put a stop to the implementation of this right here in the Massachusetts courts, a nationwide injunction,” meaning “I’m putting a stop to it, not just here in Massachusetts, but throughout the federal government.” So HUD was stopped. And they’re like, “We’re probably going to get DOJ stopped on similar grounds.” But it’s being appealed by HUD. We’ll see appeals perhaps, and theN we don’t know what happens after the appeals level, but they do think they can immediately put a stop to this based on procedural grounds. Also, they anticipate that when the Biden administration begins, that the leadership that comes in, it won’t be the Attorney General for a while because the confirmation process could take a while, but the leadership that does come in or that does exist, once the Attorney General’s in place, the Attorney General can issue basically a notice saying, “While the White House did approve this in early 2021, I, as the Attorney General, I want to put a pause on as implementation to review it,” and that kind of slows down the process a little bit, right? And, you know, if incoming Attorney General Merrick Garland says, “I just want to press pause on this,” that would do a lot to slow the process. So those are the things that civil rights groups are saying we can do immediately and we can do right now. And it’s especially essential at the Justice Department level, because the Justice Department, it is so important within the administration, and how the Justice Department treats something like Title VI is essentially how all other parts of the federal government will treat it as well. Justice Department has special authorities that basically say, essentially, “The way we do it here at the DOJ is the way you’re going to do it at HHS, at the Department of Education, and [?].”

Zach
So a couple questions on that. I guess the first is–I understand what you’re saying around Merrick Garland coming in, and, you know, he has opportunity to pause it. But that still–it almost makes it feel like “Okay, you’re slowing down the inevitable.” Like, what needs to happen so it actually gets reversed or eradicated?

Katie
So it’s interesting you say that, that slow down of the inevitable, and I think this is what a lot of conservative groups are hoping for, that it’s inevitable, because once, you know, it’s slowed and re-evaluated, say that the Justice Department rescinds it, and Republicans in the Federal Register–the new version of what will happen, what you will immediately see is you will see conservative groups sue that republished version and say, “No, no, no, we’re suing. Why did you change this? We think this change is wrong,” setting up another wave of litigation, this time on the substance of what is in the rule, rather than, you know, a procedural issue, likely because I think that, you know, Biden’s Justice Department will, you know, dot every I and cross every T. They will have procedural issues, and then they will take this idea through the courts, through district courts, through appeals courts, and what conservative groups hope, ultimately, up to the Supreme Court, where they feel that between, you know, Justice Clarence Thomas, Justice Gorsuch, Justice Cavanaugh and Justice Barrett, they have a very strong conservative hold on the Supreme Court, and a group of justices who are inclined to side with the conservatives and say, “No more disparate impact.” So that–to your point, it does feel like just hitting the brakes on what for conservatives they hope to be the final outcome, you know, that that would feel like a fulfillment of a long-standing, you know, legal goal, which would be to roll back the way that disparate impact is used and to rollback disparate impact altogether. They believe that disparate impact is a burden on business. They think it’s a burden on schools, They think it leads to much litigation. They have their reasons for it. Interestingly, we have seen businesses come out and object to the rollback of disparate impact. When HUD wanted to get rid of it in the housing context, we actually saw banks like Wells Fargo that would benefit greatly from the rollback write letters saying, “In the middle of this civil rights movement of 2020, in the wake of the death of George Floyd, how dare you do this? This is wrong.” Even the banks that would benefit from the rollback were telling the Trump administration “Do not do this,” and the Trump administration did it anyway. So, you know, they’re there. I think we’ll see interesting pushback, perhaps from different corners of the universe. But to your point, taking this up through the courts, whether it’s a lawsuit filed by conservatives or lawsuits, how progressives, the courts all end in one place. SCOTUS, Supreme Court of the United States. So that is one scenario. You know, another scenario, of course, is legislation where a law is passed that reaffirms the Civil Rights Act and reaffirms in plain and explicit and no uncertain terms language that disparate impact is something that must be, you know, explicitly discussed and pushed back on in our laws. We will see if that happens. I don’t report on Congress, so that’s not a place where I’m an expert. But I will say that the Democrats have won the House, and they have now won the Senate. There is a long, long list of things that they feel they need to do. I do not know where this falls on their list of priorities. But that is the other way that I think progressives could not just stave off the rollback of disparate impact, but actually strengthen disparate impact as a way to combat racism.

Zach
This is really helpful. Let’s talk a little bit about these justices. So we know that there’s been a much more conservative swing in the Supreme Court during over the past four years. So we think about the district and the appellate court judges. I mean, it just seems like even with like a fully Democratic Congress and White House, it still seems as if, because of just all of the appointments that the Trump administration was able to make at various levels of the courts, that it seems as if it’s kind of, like, a losing battle. Like, and I’m not trying to be, you know, fatalist or super negative, right? Like, give me some hope here. Like, how, how does it work if you have such a conservative group of judges at every level? What does it look like to combat these things and get the outcomes that progressives are looking for?

Katie
So a couple things on this. You know, for progressives, the courts have been their friend for a while. I would say those days are pretty much over. I don’t want to be completely hopeless. I’ll get to something some more hopeful stuff in a minute. But to your point, because of the the Trump administration’s ability to fill the courts with conservative judges, things are not looking hopeful. Really, what it comes down to is speed. So if the lawsuits are filed in districts where the judges are more progressive or believe that disparate impact is the law of the land and that it has been settled on by the Supreme Court, which, you know, many left-leaning and centrist, and even some right-leaning, judges believe that the Supreme Court has settled this matter, and those districts, they will, you know, rule against the conservative movement. And they will say, “No, this has already been settled.” Now, we all know that the appeals process, they will appeal and they go to the appeals court level, the appellate level, and then if they lose there they will take it to Supreme Court. It’s really just a matter of speed at this point. There’s some districts, like in Texas at the district court level, where you’ll get a very friendly audience if you’re a conservative, and then it moves very quickly up through the appeals courts, and down in Texas, whereas for example, what we saw in Massachusetts with HUD, that is going to be a slower process. So to that point, it’s really about speed. You know, how fast will this move to the Supreme Court? It is so interesting, I think, to take a step back and look at how long conservatives have wanted this to happen, and how carefully and strategically they fought for it for decades, sometimes under the radar, often times scoffed at by liberals. Nobody ever thought they would get here. Everyone just assumed that, you know, this was a fringe belief on the part of conservatives for a while. Like, they just didn’t take it very seriously. Meanwhile, you know, the conservative movement was creating conservative legal groups like the Federalist Society that became stronger and stronger and stronger in legal circles, in colleges and in law schools. They were building momentum. They were carefully choosing Congress people based on their friendliness to things like conservative courts, and they ultimately chose a president who many of them truly despised, Donald Trump, because they knew he would do what they wanted on the courts. And that was a huge issue for them. So this is, like, a decade-long project that came to fruition in 2020, and 2018 and 2017, but that they’d worked on for a really long time. And so I would say, do the Democrats have the same strength of purpose to try to undo this, because they would have to go through all the same steps, right? The, you know, marketing of progressive ideals and legal circles at a young age, the strengthening of progressive legal groups, the encouragement of progressives to go into the field of law, the encouragement to groom lawyers through the federal system so they could become justices, and the careful consideration of voting as ultimately a judicial matter. Would more progressives have come up for Hillary Clinton had they thought about the importance of the courts rather than the fact they just didn’t like her? You know, you have to start asking yourself those sort of, like, long-term thinking questions. And can progressives get on that kind of train? I don’t know. Like, I’m not a political analyst. But that’s, like, an open question. I think for people who are like, “Well, how do we stop this?” And that’s “Do you have the perseverance?” And the long-term vision is the question. And then I think, to keep in mind, the near term, more like hopeful question is, what are we going to do on the legal side? Do the Democrats have the discipline and the votes and the desire to pass laws to protect disparate impact as a regulatory and enforcement tool so that it’s kept out of the courts?

Zach
So, you know, you’re here on Living Corporate. You know, what we do is we typically tackle topics that are relevant for Black and brown folks at work. Let’s be scary for a moment and imagine a world where disparate impact is not recognized federally in the courts. What does that do for folks who are victims of discrimination? You know, you think about, like, the Crown Act and things of that nature. Like, how does that affect or impact folks at work?

Katie
Again, very few businesses intentionally discriminate. I’m hard-pressed to think of a job–like, I think in all the restaurants I worked at, like, I would never go into a restaurant and have a boss say, like, “Oh, hey, you know, only white people can wait on these tables. And because you’re Asian, you have to wait on these tables.” Like, that’s why disparate impact is so important, right? But it’s like, where do you have an adverse impact? So I think that in hiring practices, that’s a place where you would see the room for a disparate impact investigation, for example. So if in your hiring, you only will accept people who’ve had certain kind of experience that, for example, pretty much only men could have, like playing on the football team, that’s going to disparately impact the ability of women to get that job, right? If you’re going to, you know, favor–I’m just trying to use, like, these very stereotypical examples just as, like, examples. You know, in your hiring practice, you’re really screening for people who only went to a really specific kind of top tier business school, and that top tier business school has not done the work to diversify their student body, you’re going to be screening from a broad white applicant pool. And you want to say, “Okay, is that correct in the workplace?” If you have certain break restrictions, do they disparately impact women? Like, these are real questions for the workplace, and I think that they are real questions that people have used successfully in lawsuits in their workplaces. So if you take that away, you’re taking away the ability for people to say, “I’m being treated unfairly. It’s not because the company meant to treat me unfairly.” But it’s the impact of this rule, and this lawsuit is to push the company to rectify the rule and to compensate the employees who have been unfairly impacted. That would take out so many different cases that we see today. And it is a very, very–I think that’s, again, one of the reasons why civil rights advocates are so worried about this. So in the EEOC context, you know, we have seen the EEOC sue, for example, Ford Motor Company, on behalf of African-Americans who said they were rejected from an apprenticeship program after taking a cognitive test that was being administered. And this cognitive test was a written test that measured verbal, numerical, and spatial reasoning to evaluate sort of someone’s attitude. But the test itself was found to disproportionately impact African American applicants who had not had certain kinds of education and training, but still to be considered totally able to do the work, because they’ll have the same aptitude, because they’ll be very bright. But the test itself, right, seems to exclude them, because they had not had a certain set of experiences their white counterparts could have had. Now that ended in a settlement where Ford paid millions of dollars in monetary relief. And then you saw that test no longer be administrated. You know, that was a barrier to entry for African-Americans that wanted to be involved in a career in the auto industry, right? You also saw this in the workplace context, where the EEOC sued on behalf of women who felt that they were being disproportionately rejected for jobs because they had to pass a strength test, and they felt like the strength test was just not fair and that if you really needed that kind of strength in order to do the job, there’s equipment and there’s machinery that we have developed over the last decades–

Zach
It’s not 1 B.C. We can–

Katie
Exactly. So why not? Why didn’t the company invest in that kind of equipment, so that people, regardless of whether or not they were male, female, or otherwise, can do the job? And those are the sorts of questions that disparate impact litigation has helped to resolve. So you take that away and you take away barriers to test like that, that are keeping people out of jobs, good jobs, you know? Auto jobs are good jobs. They come with pensions, they come with–I don’t know if they come with pensions anymore, maybe I’ll revise that, but they do come with pay, they come with benefits. Entry level jobs, doing factory work, where you can move up on the factory floor–I am from a blue collar family. My father worked in factories. These are jobs–they’re important jobs, and they’re jobs that I think deserve a lot of respect, and they’re jobs that people deserve to be able to get, regardless of their race or regardless of, you know, their sex, and so taking away disparate impact, that is something people fear because we do not see a lot of intentional discrimination. We very rarely walk into a workplace interview where the hiring manager says, “Oh, we don’t hire women.” Instead, what you do is you go into a workplace situation where your hiring manager administers a test that women are not going to pass.

Zach
Yeah. And, you know, even the examples you were thinking about, I think something that came to mind for me is, like, the highly subjective nature of promotions over time, right? And the parameters that, you know, senior leaders may use or not use, or inconsistently use, to determine someone’s promotion readiness, right? And so then you have folks–you have certain groups of people who are consistently delayed in their promotion, or, you know, they’ll stay at the same level, whereas their counterparts are, you know, jumping ahead every couple of years, they’re at the next level, and they’re making more money, whatever the case may be. So this is really interesting, and I have to thank you for being here, Katie. Let’s talk about this. And last question for you. So we’re in 2021. Of course, you dropped this article in the same week as we have an attempted insurrection on the Capitol, on our nation’s capital. I’m curious about why is this right now so important and critical for folks not to take their eyes off of?

Katie
Yeah. What we’re looking at with what the Justice Department has done is we’re looking at the mechanism. We’re looking at the lever that the government uses in order to push back on and police a broad societal problem, right? We are a society. It starts with us – how we live our lives, how we treat one another, and what we believe to be correct conduct, but the government stands there basically holding a stick to say, “You know what? If it doesn’t work though, we’re here as a backstop to make sure that in certain contexts we can enforce–” It’s an enforcement mechanism, an enforcement mechanism that we saw being sort of eroded, I would say, in the same week that we saw this attack on the Capitol. We’re seeing, like, the enforcement, the very, like, mechanical piece, side by side with the lived, you know, everyday people piece. These things are related., and I think that we should be very careful to not lose sight of what our government is doing, because our government is doing is–often it flows from a zeitgeist that’s happening out in the world that the government is responsive to, right? So that long, conservative legal project I talked about, that was in keeping with the zeitgeist in society where we saw ebbs and flows, and more and less conservative thought too, right? The very progressive thought of the 60s and 70s giving way to the more conservative thought of the 80s, giving way to this sort of, like, centrist neoliberalism of the 90s. And then we have sort of, like, whatever it is we have today under Trumpism, right? These are schools of thought that have ebbed and flowed, and you’ve seen more or less pushback against the conservative desire to undo civil rights enforcement. Along with that, we’ve seen now in 2020 and 2021 an accumulation, a combination of a real belief that some parts of the progressive universe went too far, “and we’re pushing back.” That’s part of trumpism. We’ve also seen extremism, which we saw here in the capital, all coming together at the very same time that we might take away a key protection slash enforcement lever, a mechanical lever. I think we should always think about these things in tandem, because, you know, they inform one another. They allow us to better understand the consequences of our actions, better understand the consequences of paying attention to civics, of paying attention to politics. So that’s just sort of big picture. And then, like, you know, just granularly what happened on the Capitol was extraordinarily upsetting. It was extreme, and it was something that we will be paying a lot of attention to, of course, but we don’t want that to be such a distraction that we forget about our lived lives and the things most important to us and the things that we feel that are important to fight for through the political process or through our workplaces, through, you know, our ambitions to move into positions of management or leadership or to internally, you know, protect rights. Like, these are all things that are still just as important today as they were on Wednesday at 9am before we saw the attack on the Capitol. So we never want the shocking events that are happening in Washington to derail people from really working as hard as they can to fight for what they think is right. And we even saw that too. You know, I’ve seen very far right representatives already come out after the attack on the Capitol and say, “While I don’t believe that attack was correct. I still encourage you who support President Trump to run for local office, you know, to become managers, to run for your PTA, to help lead your schools, because we need you.” You know what? That is First Amendment-protected free speech, and it is the role of the political process, the role of leadership process, the role of becoming a manager, your job. It’s why you want to become a leader. And I would say that, you know, if people on the right who still support Trump are able to make that switch and keep their eyes on the ball that way, I hope everybody is able to keep their eyes on their goals and their eyes on, you know, what they think is right and what they think they should be working toward in the same way, to not be distracted, but to have those events informed. I think that it’s powerful when people get promoted. I think it’s powerful when people have strong voices or respected voices in their communities and in their workplaces. It’s so important. And I think that we’ve seen the impacts of diversity training and diversity in our nation’s biggest corporations. We saw that in the fall and in the summer, and really the summer when HUD wanted to rollback disparate impact, and you saw the leaders of all these big financial institutions say that they thought it was wrong. That doesn’t come from them as individual moral actors. That also comes from them as being part of a corporate culture that has shifted over the last however many years to believe that diversity is important and [?] believe diversity is important. [?] had diverse voices. Those diverse voices informed management, and then you have a management that says, “Taking away civil rights protections is wrong.” They didn’t have to come out and say that. So, you know, these things are tied together, and I think it’s important for people not to feel hopeless and to not feel like what they do on the ground, in their communities and in their jobs, is unimportant, because it’s actually essentially important.

Zach
Katie, this has been an incredible interview. To your point, I think that, you know, Martin Luther King, Jr., he predicted backlash towards some of the progressive things that were happening in his era and the passage of civil rights legislation, and what I’m hearing from you is that there has been backlash, several decades in the making, and that we’re continuing to see it, right? So to your point around the attack on the Capitol, that’s this large culmination of decades of effort and pushing and, of course, incitement over the last several years from the President, the current occupant of the White House, but that–you know, if we’re talking about fighting against that, that is going to take–to the words that you said earlier–a connected effort between various systems and forces on the progressive side. Because if not, then, you know, we’re going to continue to get flanked, because that’s kind of–that kind of sounds like what’s happened here, right? It’s it’s a flanking decades long in the making, but a flanking nonetheless, I have to thank you again, incredible conversation. Make sure you check out the show notes. We have the article there. Katie, you’re a friend of the show. We look forward to having you back soon.

Katie
Thank you so much. I hope that you guys have a great week.

Zach
And we’re back. Listen, I hope that whatever you do this week that you find time for yourself that you find time for joy, that you find time for hope, and that you rest. Don’t wait for the weekend to rest. You might not see it. No day is promised. I think what has continued to ring true in my mind in this season is that life is short and precious. So if there’s something you need to say, there’s something you need to do, there’s something you want to go experience, go do those things, because we’re not going to be here forever. None of us. With that being said, look, there’s plenty of ways that you can support Living Corporate. The first way is you can just tell a friend about us, right? Share this podcast with a neighbor, with a family member, with a friend, with a co-worker, with a colleague, with a mentor, with a mentee, with a coach. Share it with a supervisor. Just share it. The other thing you can do is give us five stars on Apple Podcasts. This directly helps us get folks to know about Living Corporate and, like, all the things that we do, right? So this is the flagship, but if you didn’t know, we also have other podcasts. We have Neil Edwards with The Leadership Range, we have The Access Point, which is a web show focused on preparing Black and brown college kids for working America. We have The Group Chat, which is focused on having really authentic dialogues with all types of different types of leaders, and that’s hosted by Nubianna Aben. Like, we have blogs, we have other web shows that are coming soon. We have all types of things going on. And folks know about it and will continue to get to know about it by you giving us five stars right here on this flagship podcast. Until next time, this has been Zach. Catch up with you later. Peace.

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