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Negotiating While Black
Michael Z. Green
Editors’ Note: With America’s increasingly multicultural population, the ability to recognize that race still matters is an important factor in negotiations. This chapter attempts to capture an important chunk of the literature that identifies the unique experience for black persons in negotiation, and makes some suggestions to address these challenges. Because of its focus on cultural impacts of negotiating while being black, this chapter can usefully be read in conjunction with Bee Chen Goh’s chapter on Cultural Errors, Gale Miller’s on Codes of Culture, and Kaufman & Blanchot’s chapter on Theory Meets Reality.
A Post-Racial Negotiating Society, or, Does Race Still Matter for Black Persons Negotiating?
With the 2008 ascendancy by a black man, Barack Obama, to the position of President of the United States, Marc Fisher noted in a Washington Post article on January 21, 2013 that some believed that America had finally become a post-racial society where concerns of racism no longer matter, or have been transcended (Fisher 2013). As an example, Fisher referred to a Gallup Poll immediately after President Obama’s election that indicated that 70 percent of Americans believed that “race relations would improve during an Obama presidency.” (Fisher 2013) Black persons have also now held the following high-level, government positions: Chairman of the Joint Chiefs of Staff (Colin Powell); National Security Advisor (Condoleezza Rice); Secretary of State (both Powell and Rice); Supreme Court Justice (Thurgood Marshall and Clarence Thomas); and Attorney General (Eric Holder and Loretta Lynch).
Despite such lofty notions of a colorblind reality in post-racial times, race still matters in our society. As of 2015, “[p]olls show that large numbers of Americans from all racial backgrounds are dejected about the racial situation today.” (Kennedy 2015) Even President Obama acknowledged this concern a year after becoming President when he joked that any steps that his presidency had moved race relations ahead in our society beyond standard discrimination had only “lasted about a day.” (Fisher 2013) Further, the same poll about race relations that was so positive when he was elected resulted in a drastic change three years later with “64 percent of Americans” believing that “having a black president had either made no difference or had made race relations worse than before.” (Fisher 2015) Also, a study from 2011-12, capturing and analyzing Facebook photos and pages that focused on President Obama and First Lady, Michelle Obama, found that stereotypical narratives of black persons were being extended into social networks by hate groups to portray the President and his wife negatively (Moody 2012b).
The reality for a black person in America is that the world can sometimes look like a bleak place. As of 2010, “nearly one-third of black men are likely to spend time in prison.” (New York Times 2012)1 There are more black children under 18 living in poverty than any other racial group (National Poverty Center 2016). Black workers face the highest unemployment of any racial group (BLS Reports 2015). Black men’s wages are 75% of white men’s wages (Infoplease 2016) and black women’s wages are 64% of white men’s wages (The Huffington Post 2013). Black workers are frustrated in being subjected to discrimination based upon their names2 and likely will not find an attorney to bring the claim.3
As a result, the concept of performing certain activities “while black” has been used in a number of instances to capture the ongoing and unique experiences of black people in our society. One of the more prevalent uses was to highlight unique interactions under the concept of “driving while black” when being stopped by a police officer.4 The concept has been expanded to “working while black”5 and “shopping while black”6 and even to “learning mathematics while black.”7 This chapter provides an explanation from much of the existing literature regarding the unique aspects of what it means to be “negotiating while black” and suggests how negotiations with black persons can achieve positive results without discrimination being involved.
Black and Negotiating: What the Studies Tell Us ...
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References
Abrams, R. 2013a. Ally in $98 Million Settlement on Bias in Auto Loans. The New York Times Dealbook, December 20, 2013. Available online at http://dealbook.nytimes.com/2013/12/20/ally-in-98-million-settlement-on-bias-in-auto-loans/ (last accessed April 17, 2016).
Abrams, R. 2013b. Dealer Fees for Arranging Car Loans are Drawing Scrutiny From U.S. The New York Times Dealbook, November 22, 2013. Available online at http://dealbook.nytimes.com/2013/11/22/scrutiny-over-disparity-in-loan-fees-at-auto-dealerships/ (last accessed April 17, 2016).
Ayres, I. 1991. Fair Driving: Gender and Race Discrimination in Retail Car Negotiations. Harvard Law Review 104(4): 817-872.
Ayres, I. 1995. Further Evidence of Discrimination in New Car Negotiations and Estimates of Its Cause. Michigan Law Review 94(1): 109-147.
Ayres, I. and P. Siegelman. 1995. Race and Gender Discrimination in Bargaining for a New Car. The American Economic Review 85(3): 304-321.
Ayres, I., M. R. Banaji and C. Jolls. 2011. Race Effects on eBay. Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1934432 (last accessed April 17, 2016).
Barkai, J. 2008. Cultural Dimension Interests, the Dance of Negotiation, and Weather Forecasting: A Perspective on Cross-Cultural Negotiation and Dispute Resolution. Pepperdine Dispute Resolution Law Journal 8(3): 403-448.
Bernard, P. E. 2008. Minorities, Mediation and Method: The View from One Court-Connected Mediation Program. Fordham Urban Law Journal 35(1): 1-37.
Bertrand, M. and S. Mullainathan. 2003. Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination. The National Bureau of Economic Research Working Paper Series: Working Paper 9873. Available online at http://www.nber.org/papers/w9873.pdf (last accessed April 17, 2016).
BLS Reports. 2015. Labor Force Characteristics by Race and Ethnicity, 2014. U.S. Bureau of Labor Statistics Reports: Report 1057, November 2015. Available online at http://www.bls.gov/opub/reports/cps/labor-force-characteristics-by-race-and-ethnicity-2014.pdf (last accessed April 17, 2016).
Carbado, D. W. and M. Gulati. 2000. Conversations at Work. Oregon Law Review 79(1): 103-146.
Clark, D. 2013. Why So Few Women and Minorities at the Top? Here’s the Real Reason. Forbes, September 3, 2013. Available online at http://www.forbes.com/sites/dorieclark/2013/09/03/why-so-few-women-and-minorities-at-the-top-heres-the-real-reason/ (last accessed April 17, 2016).
Cohen, M. A. 2008. Imperfect Competition in Auto Lending: Subjective Markup, Racial Disparity, and Class Action Litigation. Available online at (http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context=mark_cohen&sei-redir=1&referer=http%3A%2F%2Fwww.bing.com%2Fsearch%3Fq%3Dmark%2Bcohen%2Bimperfect%2Bcompetition%2Bin%2Bauto%2Blending%26src%3DIE-TopResult%26FORM%3DIETR02%26conversationid%3D#search=%22mark%20cohen%20imperfect%20competition%20auto%20lending%22 (last accessed April 17, 2016).
Craver, C. B. 1988. Effective Legal Negotiation and Settlement in Negotiation: Winning Tactics and Techniques. Practicing Law Institute Litigation & Administrative Practice Course Handbook Series. 347.
Craver, C. B. 2001. Race and Negotiation Performance, Does Race Predict Success as a Negotiator? Dispute Resolution Magazine 8: 22-26.
Davis, D. 2014. Non-Negotiable: Negotiation Doesn’t Help African Americans and Latinos on Dealer-Financed Car Loans, Center for Responsible Lending, January 2014. Available online at https://www.researchgate.net/publication/259911030_Non-Negotiable_Negotiation_Doesn%27t_Help_African_Americans_and_Latinos_on_Dealer-Financed_Car_Loans (last accessed April 17, 2016).
Delgado, R., C. Dunn, P. Brown and H. Lee. 1985. Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution. Wisconsin Law Review 1985: 1359.
Doleac, J. L. and L. C. D. Stein. 2013. The Visible Hand: Race and Online Market Outcomes. The Economic Journal 123: F469-F492. Available online at http://onlinelibrary.wiley.com/doi/10.1111/ecoj.12082/abstract (last accessed April 17, 2016).
Fisher, M. 2013. With Obama, Not a Post-Racial Nation, But Something More Complex. The Washington Post, January 21, 2013. Available online at https://www.washingtonpost.com/national/inauguration/with-obama-not-a-post-racial-nation-but-something-more-complex/2013/01/21/81fbf04e-63d3-11e2-85f5-a8a9228e55e7_story.html (last accessed April 17, 2015).
Greenberg, E. E. 2015. Fitting the Forum to the Pernicious Fuss: A Dispute Resolution Design to Address Implicit Bias and ‘Isms in the Workplace. St. John’s School of Law: Legal Studies Research Paper Series, Paper Number 15-0023. Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2636840 (last accessed April 17, 2016).
Grillo, T. 1991. The Mediation Alternative: Process Dangers for Women. Yale Law Journal 100(6): 1545-1610.
Gunning, I. R. 2004. Know Justice, Know Peace: Further Reflections on Justice, Equality and Impartiality in Settlement Oriented and Transformative Mediations. Cardozo Journal of Conflict Resolution 5: 87-95.
Hall, E. V., L. Thompson and E. Apfelbaum. 2013. Seeing Racism and Forecasting Worth: Perceived Prejudice Decreases Blacks’ Propensity to Negotiate (unpublished). Presented at the International Association for Conflict Management Conference, Tacoma, WA.
Huffington Post. 2013. Wage Gap Hits African-American, Latina Women Hardest, Report Shows. The Huffington Post Black Voices, Jan. 29, 2013. Available online at http://www.huffingtonpost.com/2013/01/29/wage-gap-african-american-women-infographic_n_2568838.html (last accessed April 17, 2016).
Hurder, A. J. 2007. The Lawyer’s Dilemma: To Be or Not to Be a Problem-Solving Negotiator. The Clinical Law Review 14: 253-300.
Infoplease. 2016. The Wage Gap, by Gender and Race. Infoplease. Available online at http://www.infoplease.com/ipa/A0882775.html (last accessed April 17, 2016).
Ingraham, C. 2014. You Really Can Get Pulled Over for Driving While Black, Federal Statistics Show. The Washington Post Wonkblog, September 9, 2014. Available online at https://www.washingtonpost.com/news/wonkblog/wp/2014/09/09/you-really-can-get-pulled-over-for-driving-while-black-federal-statistics-show/ (last accessed April 17, 2016).
Izumi, C. 2010. Implicit Bias and the Illusion of Mediator Neutrality. The Journal of Law and Policy 34: 71-155.
Johnson, M. T. 2011. Working While Black: The Black Person’s Guide to Success in the White Workplace, 2d Edn. Chicago, IL: Lawrence Hill Books.
Kalokerinos, E. K., C. Von Hippel and H. Zacher. 2014. Is Stereotype Threat a Useful Construct for Organizational Psychology Research and Practice? Industrial and Organizational Psychology 7(3): 381-402.
Kennedy, R. 2015. Lifting as We Climb: A Progressive Defense of Respectability Politics. Harper’s Magazine, October 2015. Available online at http://harpers.org/archive/2015/10/lifting-as-we-climb/ (last accessed April 17, 2016).
Korobkin, R. 2000. A Positive Theory of Legal Negotiation. Georgetown Law Journal 88: 1789-1831.
LaFree, G. and C. Rack. 1996. The Effects of Participants' Ethnicity and Gender on Monetary Outcomes in Mediated and Adjudicated Civil Cases. Law and Society Review 30(4): 767-798.
Langston, L. and M. Durose. 2013. Police Behavior during Traffic and Street Stops, 2011. U.S. Department of Justice: Office of Justice Programs Bureau of Justice Statistics, September 2013. Available online at http://www.bjs.gov/content/pub/pdf/pbtss11.pdf (last accessed April 17, 2016).
Mabry, C. R. 1998. African Americans “Are Not Carbon Copies” of White Americans – The Role of African American Culture in Mediation of Family Disputes. Ohio State Journal on Dispute Resolution 13(2): 405-460.
Marks, M. and C. Harold. 2011. Who Asks and Who Receives in Salary Negotiation. Journal of Organizational Behavior 32(3): 371-394. Available online at http://onlinelibrary.wiley.com/doi/10.1002/job.671/abstract (last accessed April 17, 2016).
Martin, D. B. 2012. Learning Mathematics While Black. Educational Foundations, Winter-Spring 2012. Available online at http://www.academia.edu/1495695/Learning_mathematics_while_Black (last accessed April 17, 2016).
Matthews, C. 2014. Vine User Blasts Employees Following Him Around Stores in Best Possible Way. The Huffington Post Black Voices, July 22, 2014. Available online at http://www.huffingtonpost.com/2014/07/22/rashid-polo-shopping-while-black-vine_n_5610667.html (last accessed April 17, 2016).
Meyers, A. L. 2015. Honda Settles Auto-Lending Discrimination Claims, Agrees to Provide $24 Million to Victims. Canadian Business, July 14, 2015. Accessed April 17, 2016. Available online at http://www.canadianbusiness.com/business-news/honda-settles-auto-lending-discrimination-claims-agrees-to-provide-24-million-to-victims/ (last accessed April 17, 2016).
Mnookin, R. H. 2003. Strategic Barriers to Dispute Resolution: A Comparison of Bilateral and Multilateral Negotiations. Harvard Negotiation Law Review 8(1): 1.
Moody, M. 2012a. From Jezebel to Ho: An Analysis of Creative and Imagined Shared Representations of African-American Women. Journal of Research on Women and Gender 4: 1-21. Available online at https://www.academia.edu/1498920/From_Jezebel_toHo-An_Analysis_of_Creative_and_Imaginative_Shared_Representations_of_African-American_Women (last accessed April 17, 2016).
Moody, M. 2012b. New Media-Same Stereotypes: An Analysis of Social Media Depictions of President Barack Obama and Michelle Obama. The Journal of New Media Culture, Summer 2012: Volume 8, Issue 1. Available online at http://www.ibiblio.org/nmediac/summer2012/Articles/obama_facebook.html (last accessed April 17, 2016).
Morton, F. S., F. Zettelmeyer and J. Silva-Russo. 2001. Consumer Information and Price Discrimination: Does the Internet Affect the Pricing of New Cars to Women and Minorities? The National Bureau of Economic Research: Working Paper 8668. Available online at http://www.nber.org/papers/w8668.pdf (last accessed April 17, 2016).
MSN Money. 2015. Honda to Pay $25M for Overcharging Minority Buyers on Loans. MSN Money, July 14, 2015. Available online at http://www.msn.com/en-us/money/companies/honda-to-pay-dollar25m-for-overcharging-minority-buyers-on-loans/ar-AAcYdis (last accessed April 17, 2016).
Myrick, A., R. L. Nelson and L. B. Nielsen. 2012. Race and Representation: Racial Disparities in Legal Representation for Employment Civil Rights Plaintiffs. New York University Journal of Legislation and Public Policy 15(3): 705-758.
NAACP. 2016. Criminal Justice Fact Sheet. NAACP. Available online at http://www.naacp.org/pages/criminal-justice-fact-sheet (last accessed April 17, 2016).
National Poverty Center. 2016. Poverty Facts, National Poverty Center: How Many People were Poor in 2010? National Poverty Center. Available online at http://www.npc.umich.edu/poverty/ (last accessed April 17, 2016).
New York Times. 2012. Young, Black, and Male in America. The New York Times Room for Debate Blog, March 12, 2012. Available online at http://www.nytimes.com/roomfordebate/2012/03/12/young-black-and-male-in-america (last accessed April 17, 2016).
New York Times. 2015. Job Discrimination, Based on a Name. New York Times Room for Debate Blog, October 19, 2015. Available online at http://www.nytimes.com/roomfordebate/2015/10/19/job-discrimination-based-on-a-name (last accessed April 17, 2016).
Press, S. 2011. Court-Connected Mediation and Minorities: A Report Card. Capital University Law Review 39: 819-851.
Press, S. 2013. Court-Connected Mediation and Minorities: Has Any Progress Been Made? Dispute Resolution Magazine 19: 36-40.
Rack, C. 1999. Negotiated Justice: Gender & Ethnic Minority Bargaining Patterns in the Metrocourt Study. Hamline Journal of Public Law and Policy 20(2): 211-298.
Russell, K. K. 1999. Driving While Black: Corollary Phenomena and Collateral Consequences. Boston College Law Review 40(3): 717-731.
Seidel, M. L., J. T. Polzer and K. J. Stewart. 2000, Friends in High Places: The Effects of Social Networks on Discrimination in Salary Negotiations. Administrative Science Quarterly 45(1): 1-24. Available online at http://links.jstor.org/sici?sici=0001-8392%28200003%2945%3A1%3C1%3AFIHPTE%3E2.0.CO%3B2-4 (last accessed April 17, 2016).
Singletary, M. 2013. Shopping While Black. The Washington Post Business, October 31, 2013. Available online at https://www.washingtonpost.com/business/economy/shopping-while-black/2013/10/31/5c7129d4-41a4-11e3-a751-f032898f2dbc_story.html (last accessed April 16, 2016).
Steele, C. M. 1997. Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance. American Psychologist 52(6): 613-629. Available online at http://users.nber.org/~sewp/events/2005.01.14/Bios+Links/Krieger-rec5-Steele_Threat-in-the-Air.pdf (last accessed April 17, 2016).
Thompson, L. 2013. Negotiation Theory and Research: Gender and Race, Presented to University of Chicago Diversity Series, March 2013. Available online at https://www.youtube.com/watch?v=2aHtwLEg8R4&list=UU-FLdSMY1eGwn%20pzA THE NEGOTIATOR'S DESK REFERENCE 617 8e4qHw&index=1 (videotape at 52:22-1:07:35 time) (last accessed April 17, 2016).
United States Department of Justice. 2013. Justice Department and Consumer Financial Protection Board Reach $98 Million Settlement to Resolve Allegations of Auto Lending Discrimination by Ally. The United States Department of Justice Press Release, December 20, 2013. Available online at http://www.justice.gov/opa/pr/justice-department-and-consumer-financial-protection-bureau-reach-98-million-settlementto (last accessed April 17, 2016).
United States Department of Justice. 2015. Justice Department and Consumer Financial Protection Bureau Reach Groundbreaking Settlement to Resolve Allegations of Auto Lending Discrimination by Honda. The United States Department of Justice Press Release, July 14, 2015. Available online at http://www.justice.gov/opa/pr/justice-department-and-consumer-financial-protection-bureau-reach-groundbreaking-settlement (last accessed April 17, 2016).
Willis, L. E. 2005. Decision Making and the Limits of Disclosure: The Problem of Predatory Lending Price. Maryland Law Review 65(3): 707-840.
Yoshino, K. and C. Smith. 2013. Uncovering Talent: A New Model of Inclusion. Deloitte University: The Leadership Center for Inclusion, December 6, 2013. Available online at http://www2.deloitte.com/content/dam/Deloitte/us/Documents/about-deloitte/us-inclusion-uncovering-talent-paper.pdf (last accessed April 17, 2016).