09 Dec Gabrielle Union’s Exit From America’s Got Talent
A Teachable Moment for Companies on Race, Inclusivity, and Workplace Culture
by Jessica N. Childress, Managing Attorney, The Childress Firm PLLC
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The highly publicized termination of celebrity judge, Gabrielle Union, from America’s Got Talent (“AGT”) has incited a needed discussion about the obstacles to inclusion that people of color and women face in the workplace, as well as the risks that employees face when speaking out about workplace bias.
What is America’s Got Talent?
AGT is a popular television show that showcases the musical, comedic, and other artistic talents of contestants from around the country. Simon Cowell (the former celebrity judge from American Idol) created AGT, which currently airs on the network, NBC (owned by NBCUniversal). Last season, Union (an African-American woman) appeared on the show as a judge.
What happened?
A recent Variety magazine article alleged that NBC failed to renew Union’s contract for a second season on AGT. Purportedly, Union’s contract with NBC gave the network the option to renew, yet the network chose not to renew.
Reportedly, the network did not renew Union’s contract after she encouraged AGT’s producers to report a culturally insensitive joke that Jay Leno had made regarding Korean people. The Variety report alleged that Leno made a joke about a painting that featured Cowell, who was surrounded by dogs in the painting. Allegedly, Leno remarked that this looked like an item someone would find “on the menu at a Korean restaurant.” Furthermore, the joke was purportedly offensive to AGT staff based on it being perceived as carrying on the stereotype that Asian people eat dog meat.
Apparently, this is not the first time that Leno has been accused of making racially-charged and culturally insensitive remarks regarding Korean people and the consumption of dog meat. In 2002, Leno allegedly joked that Olympic skater, Kim Dong Sung, who is Korean, went home after an incident at the winter Olympics and was so angry that he “kicked the dog and ate it.”
Moreover, the Variety report also stated Union was informed on multiple occasions that her hairstyles were “too black” and changed too frequently. Furthermore, reports indicate that a contestant on AGT, who happened to be a white man, was impersonating several singers. During his impersonation of Beyoncé, an African American woman, his hands appeared to be black. Union, for good reason (see the history of Blackface performances), believed that this act was racially insensitive. As such, she allegedly encouraged an AGT executive producer to take the contestant out of the lineup.
Public reports indicate that the allegations by Union are currently being investigated. Until an investigative report is published based on the eye-witness accounts of Union and the people familiar with the AGT situation, we can only view the current reports as allegations. Nonetheless, while the facts unfold in the AGT case, companies from around the world can use the AGT situation as a starting point to consider (or perhaps, reconsider) its own policies and practices when it comes to diversity and inclusion.
What can my company and I learn from this?
The last several years in America have presented several teachable moments for enhancing diversity and inclusion in the workplace. In this current teachable moment, I want to discuss how companies can use the allegations that have surfaced in the AGT case to create more inclusive workplaces, especially for women and people of color.
1. Jokes about race or a person’s ethnic group are never ok. Period.
There’s nothing more to say here.
2. Don’t touch or critique a person’s hair.
Critiquing people’s personal appearance, including their hair, can create an uncomfortable work environment that fosters exclusivity, not inclusivity. Union is known to wear her hair in a variety of styles, ranging from cornrows to short bobs, and several other protective styles (a style which protects a person’s natural hair). From the Variety report, it is unclear whether AGT producers subjected Union to critiques that her hair was “too black” and changed too often, or if other people provided these critiques to Union.
If Union’s supervisors or colleagues subjected her to these critiques about her hair, this raises a serious inclusion issue for AGT, not to mention, a viable racial discrimination claim against AGT based on the comments about Union’s hair.
Hair discrimination disproportionately affects black women.
As a black women who frequently changes her hairstyle, I can say that I do not want any questions about my hairstyle changes in a professional setting.
When I’m working, I am focused on work—not on my hair. Often, I change my hairstyle depending on what is going on in my life. If I’m going swimming, I want protective braids so that I can swim without having to taking hours out of my day to treat my natural hair after it touches salt water or chlorine from pool water. If I’m going to be in a humid environment, I do not want to wear my natural hair out because it will become frizzy and immediately hard for me to manage. And sometimes, I just want a different hairstyle because it’s Tuesday—no rhyme or reason. However, all of those decisions are very personal (I’m exhausted from typing out all of those hair descriptions here). As such, I only want to discuss my hairstyle choices with my hairstylist and my friends, but rarely if ever, do I want to discuss my hair in my professional environments.
Placing the burden of justifying a hairstyle on employees, a burden that often unequally falls on women of color, especially black women, is unfair and creates workplaces that are exclusionary and isolating.
Hairstyle discrimination creates an exclusionary culture, and it is illegal.
New legislation in several states, with California being one, prohibits discrimination against employees based on wearing their hair in natural hairstyles. California’s CROWN Act (SB-188) prohibits an employer from discriminating against an employee based on the employee wearing their natural hair, including afros, braids, twists, and locks. When introducing the CROWN Act, California Senator, Holly Mitchell Stated:
“Many Black employees, including your staff, members, will tell you if given the chance that the struggle to maintain what society has deemed a ‘professional image’ while protecting the health and integrity of their hair remains a defining and paradoxical struggle in their work experience, not usually shared by their non-Black peers…Members, it is 2019. Any law that sanctions a job description that immediately excludes me from a position, not because of my capabilities or experience but because of my hair, is long overdue for reform.”
According to SB 188,
“Professionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional.”
Companies who are considering how to make their workplaces more inclusive should train employees and managers on why it can be uncomfortable when employees highlight hairstyle changes of women of color or make isolating statements about such hairstyles. For many women of color, hairstyles have historical and cultural significance. Negative critiques and obsessive comments about a person’s hair choice are often exclusionary and can lead to feelings of discomfort by the recipient of the critiques.
3. Making civility and respect core values of your organization is an essential element to creating an inclusive workplace. Workplace culture starts at the top.
Respect can come in many forms—equally paying all workers, giving these groups equal opportunities for promotion, not excluding these groups from social events, and the simplest one of all—just saying “hello” in passing. It’s amazing how impactful it is for organizational culture when company employees acknowledge each other with a “hello” in the hallway, in the elevator, or in the break room.
Seemingly minor incidents of incivility can eat away at your company’s core values.
From the allegations, it appears that a number of seemingly minor incidents eroded the culture at AGT. At one time, Union reportedly complained about Cowell’s habit of smoking indoors at AGT. California law prohibits smoking indoors in most workplaces. California law also prohibits employers from retaliating against an employee who makes a complaint about another employee who smokes indoors. Allegedly, Cowell referred to Union as “difficult” when she complained about his indoor smoking. Labeling someone as “difficult” after making a complaint about unlawful conduct in the workplace is an absolute no-no for employers seeking to create more inclusive cultures and avoid retaliation claims.
Purportedly, after Union raised the issue of the racially insensitive “black hands” performance by a white male contestant, producers disagreed with Union’s complaint. If this allegation is true, a best practice would have been to thank Union for her concerns and engage in a respectful discussion about those concerns. Creating inclusive cultures requires thoughtful, respectful discussions about bias and stereotypes.
4. C-suite executives must not engage or tolerate acts of incivility and disrespect because they set the example for others to follow.
A “Boys Club” culture is isolating and degrading for women and people of color. People who are familiar with the culture of AGT, such as Sharon Osborn (who was a judge on the AGT for several seasons), have expressed that AGT’s culture is not inclusive for women. Osborne recently stated, “It is a boys’ club, okay, it is,” she said. “And the boys take care of each other and the women are not paid as much as the men.” Osborne went on to state,
“They brought Howie in. He got his own plane,” she said, before clarifying, “I love Howie, and I don’t begrudge anyone earning what they earn… But, when my old ass has been there shooting the show, and I get an American Airlines ticket and he gets a private plane. And I get that because I’m me and I’m not in the club and I’m not one of the guys… NBC can kiss my ass.”
Howard Stern, who served as a judge on AGT for several seasons, apparently shares Osborne’s feelings about AGT being a “boy’s club.” In a recent interview he gave to SiriusXM, Stern stated,
“How is it that Simon Cowell has orchestrated this? He has set it up that the men stay, no matter how ugly they are, no matter how old they are, no matter how fat they are, no matter how talentless they are.”
Tina Tchen, the President of Time’s Up stated that NBCUniversal has had a pattern of “protecting the careers of powerful men at the expense of women who speak out.” Tchen continued to state that NBCUniversal “still has a lot of work to do to change its culture so that discrimination, harassment, and retaliation are no longer tolerated at the company. Period.”
If Osborn, Stern, and Tchen’s accounts of AGT and NBCUniversal’s culture are factual, this is the precise culture that leads to allegations of discrimination and retaliation. When top executives do not immediately stop discriminatory, sexist, homophobic, xenophobic, racist, and simply uncivil behavior, they create cultures that make the workplace a terrifying place for people who are at the receiving end of this behavior. The people at the receiving end are often women and people of color.
How can the c-suite stop uncivil behavior?
Even for c-suite executives, making a report about inappropriate comments and uncivil behavior is not easy. However, the c-suite executives of companies not only set the example for other employees to follow, but these employees also hold a position of power that give them a unique opportunity to speak out against bias, as well as protect lower-level employees who speak out.
Changing company culture is difficult, especially when certain conduct has become normalized within the company. Telling someone that their comment was not funny, was racist, was sexist, was homophobic, was xenophobic, was inappropriate, or was simply weird, is a terrifying thing to do. This is terrifying whether the person making the report is a c-suite executive or an intern.
So, how can c-suite executives set the tone for inclusion?
It takes practice, and it takes courage. It takes asking the person who made an offensive comment out to coffee to explain why what they said was not appropriate and asking them not to make that comment again.
It takes going to human resources when necessary and taking corrective action to weed out employees who cause other employees to feel afraid and excluded at work. If a company employee has made a racially-derogatory comment multiple times, companies should consider the place that employee (regardless of how successful, popular, profitable, or powerful) should assume at the company. This is a question of company values.
5. Your organization’s implicit bias, diversity, and harassment training needs to be based on your company’s values.
Diversity and inclusion/implicit bias training, as well as sexual harassment training, is a fact of life at major companies. Despite the prevalence of these trainings, the number of discrimination, sexual harassment, and retaliation cases filed with the United States Equal Employment Opportunity Commission in 2018 amount to over 85,000 cases. Notably, in 2018, retaliation cases made of 51.6% of the charges filed with the EEOC.
Effective training not only requires that companies discuss the definitions of discrimination, harassment, and retaliation, but it also requires that company trainings provide the opportunity for a dialogue about the company’s core values and what conduct runs counter to those values. If you have heard me speak at HR conferences, you have heard me say that if a company is only training its employees on the legal definitions of harassment, discrimination, and retaliation, and not on the behavior that violates the company’s values, the company is missing the mark.
Here is what I mean by “missing the mark”— AGT is filmed in Los Angeles, California. Neither federal law, nor California state law, protects independent contractors from discriminatory conduct by employers. Furthermore, federal law does not currently protect employees from discrimination based on their sexual orientation. Accordingly, the legal standard of who deserves protection in the workplace is not fully protective of all categories of workers. If an employer’s anti-harassment training program does not unequivocally teach that all workers—whether employees or independent contractors, regardless of their sexual orientation—should all be treated with respect and civility, the employer is creating major holes in their company’s culture, allowing toxicity to creep in. Respecting certain classes of people and not others creates a culture of incivility. That culture leads to low morale, employee disengagement, customer complaints, and let’s not forget—lawsuits.
Companies must not only clearly define and articulate their culture, but they also must practice what they preach with respect to the behavior the company will tolerate. It’s easy to train on the definition of sexual harassment, discrimination, and retaliation. What is harder to train on is what behavior is tolerated within your company and what is not. Legal frameworks do not define a company’s culture. Only management, by their own policies and practices, can dictate and demonstrate company culture. If c-suite executives at NBC recognized a pattern of behavior that made them feel as though Cowell or others at AGT were making women and minorities feel uncomfortable, those executives should have promptly addressed the behavior with Cowell and anyone else they felt were not acting in accordance with their values.
6. Creating an inclusive culture requires companies to encourage bystander intervention.
Reporting offensive conduct takes a ton of bravery. Employees value their jobs—they provide a sense of pride, a social connection, and financial resources. Putting all of that on the line to report something—maybe not even on behalf of themselves, but on behalf of people that they care about—is a herculean feat.
Title VII of the Civil Rights Act protects bystanders who report EEO violations from retaliation. If a court were to determine that Union was an actual employee whose termination was motivated by her report to AGT’s producers about Leno’s alleged racist comment, NBC’s failure to renew Union’s contract could be seen as unlawful retaliation. In the EEOC’s 2016 Select Task Force on the Study of Harassment in the Workplace report, they stated,
“We believe that bystander intervention training might be effective in the workplace. Such training could help employees identify unwelcome and offensive behavior that is based on a co-workers’ protected characteristic under employment non-discrimination laws; could create a sense of responsibility on the part of employees to “do something” and not simply stand by; could give employees the skills and confidence to intervene in some manner to stop harassment; and finally, could demonstrate the employer’s commitment to empowering employees to act in this manner. Bystander training also affords employers an opportunity to underscore their commitment to non-retaliation by making clear that any employee who ‘steps up’ to combat harassment will be protected from negative repercussions.”
Employees are typically not trained to be advocates, so advocating for another is not a natural skill. Companies that truly want to create more inclusive cultures must train on bystander intervention techniques and then thank bystanders for exercising the immense courage that it takes to speak up against bias in the workplace.
If the facts reveal that Union was fired because she encouraged producers to report culturally offensive comments to human resources, NBCUniversal should take a deep look at its policies and practices to determine how it can create a safer space for employees who feel the need to report uncivil behavior.
7. Investigate reports about biased incidents promptly.
Recent reports indicate that NBC is talking to Union and investigating her concerns. Companies that receive employee reports about a biased incident should take prompt remedial action. This action includes conducting an objective investigation into the allegations made in the employee’s report.
In a world that is scary for various minority groups, insightful discussions on how to make the workplace a safe space for all people is warranted. Let this be your opportunity to talk to your colleagues and ask questions that lead to deeper cultural understanding—not exclusion. Diverse voices in the workplace matter. Diversity and inclusion of thought, experience, age, sex, race, sexual orientation, physical ability, gender identity, ethnicity, parental status, religion, and political views are critical to the cultivation of workplace that is a great place for all people to work.
Consider asking how you can be an ally. Consider apologizing if you know you have made a colleague uncomfortable with an insensitive remark. Ask the colleague why the remark made them feel uncomfortable. Everyone is learning how to become a better member of the workplace and of the world. We all have room to improve.
The recent case with AGT is a great place to start (or hopefully continue) the discussion about how to make your workplace a great place.
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This publication discusses legal developments, which are intended for informational and educational purposes only. The information contained in this publication is not intended as legal advice, and it should not be constructed as legal advice.