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15 Transparently White Subjective Decisionmaking: Fashioning a Legal Remedy BARBARA J. FLAGG Goodson, Badwin & Indiff is a major accounting firm employing more than five hundred persons nationwide. Among its twenty black accountants is Yvonne Taylor , who at the time this story begins was thirty-one years old and poised to become the first black regional supervisor in the firm's history. Yvonne attended Princeton University and received an M.B.A. from the Kellogg Graduate School of Management at Northwestern University. While employed at Goodson, she was highly successful in attracting new clients, especially from the black business community. In all other respects her performance at the firm was regarded as exemplary. Yvonne always was comfortable conforming to the norms of the corporate culture at Goodson, and in fact had been comfortable with "white" norms since childhood. Her manner of speech, dress, and hairstyle, as well as many of her attitudes and beliefs, fell well within the bounds of whites' cultural expectations. However, Yvonne may have adapted to the corporate culture too well. It is common practice at Goodson to be less than absolutely precise in keeping records of one's billable hours. Instead, accountants generally estimate time spent on clients' accounts at the end of each day, and tend to err on the side of overrather than underbilling. On the rare occasions this practice is discussed, it is explained in terms of the firm's prestige in the business community; the idea is that clients should consider themselves fortunate to be associated with Goodson at all. Like other young accountants , Yvonne at first attempted to keep meticulous records, but she soon realized others were surpassing her in billable hours without spending more time actually at work. Consequently , and consistent with her general pattern of conforming to prevailing norms, she gradually adopted the less precise method. Under Goodson's promotion procedure, the decision whether to promote an accountant to regional supervisor rests on senior partners' evaluations of the candidate's accounting knowledge and skills and, to a lesser extent, on assessments of her interpersonal skills solicited from clients and from peers in the office. The reports on Yvonne's accounting skills were uniformly excellent. Comments from some peers had overtones of distance and mild distrust suggesting that they were somewhat uncomfortable with Yvonne as a black From "Fashioning a Title VII Remedy for Transparently White Subjective Decisionmaking," 104 YALE L.J. 2009 (1995). Originally published in the Yale Law journal. Reprinted by permission of The Yale Law Journal Company and Fred B. Rothman & Company. Copyrighted Material 86 Barbara ]. Flagg woman, but these comments fell far below the level necessary to raise serious doubts about her interpersonal skills. However, several of Yvonne's clients took the occasion to register complaints about possible overbilling. The firm launched an extensive investigation and eventually reached the conclusion that Yvonne had been careless in her recordkeeping and that therefore she should not be promoted. As a practical matter, this episode ended Yvonne's prospects for advancement at Goodson; the firm has an informal policy of not reconsidering an individual once she has been passed over for promotion. Yvonne has a younger sister who, sometime during college, legally changed her name from Deborah Taylor to Keisha Akbar. As her decision to change her name suggests, Keisha places an emphasis on her African heritage that Yvonne does not,] and she has adopted speech and grooming patterns consistent with that cultural perspective.2 Keisha majored in biology at Howard University, and after graduation went to work as the only black scientist at a small research firm dedicated to identifying and developing environmentally safe agricultural products for commercial uses. Like Yvonne, Keisha excelled at the technical aspects of her work, but she brought to it a much less assimilationist personal style. At first, her cultural differences had little impact on her job performance. This changed, however, when the once-small firm began to grow rapidly and reorganization into research divisions became necessary. For the most part, the firm planned to elevate each of the original members of the research team to positions as department heads, but Keisha was not asked to head a department because the individuals responsible for making that decision felt that she lacked the personal qualities of a successful manager. They saw Keisha as just too different from the researchers she would supervise to be able to communicate effectively with them. The firm articulated this reasoning by asserting a need for a department head who shared...


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