Tag Archives: “colorblindness”

Futility of “Colorblindness” and Confirmation Bias: Can Poison Workplace Interaction of a Supervisor and Subordinate Employee; These Interactions Must Be Covered under Equal Employment Opportunity Law

In the United States, the manager of an organization is give great power to hire, supervise, instruct, discipline, and terminate employees, according to the laws relating to employment (indexed as master and servant) law.

Perhaps in a sufficient number of cases, manager’s assessment in a applicable discretionary power is correct, but in a situation of implied bias–that the supervisor is prone to disfavor the work of a subordinate just because of his or her skin color, such discretion becomes racially discriminatory and unfair. The subordinate cannot do anything to avoid the effects of a manager who applies a unconscious bias to such subordinate.

As a result, broad assertions (even with manager-supplied documented “proof”) of poor performance, must be viewed with a skeptical eye and with a view of ensuring that the manager’s assessment and documentation is itself fair and equitable to the subordinate and not just accepting the manager’s compilation of errors is the final word. This point is a definite weakness of the Grote forced distribution system (governed by manager’s unchecked “opinion”), covered separately in this blog.

Exploring the issue of unconscious bias, Dr. Arin N. Reeves, a researcher with Nextions, a consulting organization, investigated the effect of confirmation bias. Specifically, Dr. Reeves was investigating the reason from prior research finding that supervising lawyers perceived African American lawyers to be sub par in their writing skills in comparison to their Caucasian counterparts.

Dr. Reeves and her team performed a study, studying the issue from a perspective of unconscious or implicit bias. Five law partners were asked to write an legal research memo from a hypothetical third-year litigation associate that focused on trade secrets in Internet start-ups. The researchers then introduced 22 errors–spelling and grammar (7), substantive technical writing errors (6), errors of fact (5), and errors of analysis (4).

This error-amended memo was provided to 60 partners of law firms; one-half of them were told that the memo was written by an African American associate, and the other one-half of them were told that the author was Caucasian.

The result–from 53 law partners (24 having reviewed the African American associate’s memo and 29 having reviewed the Caucasian associates memo)–is as follows:

African American Associate Caucasian Associate
Overall quality of the memo (rated from 1 (poor) to 5 (extremely well written) 3.2/5.0 4.1/5.0
Qualitative comments
  • “needs lots of work”,
  • “can’t believe he went to NYU”,
  • average at best”
  • “generally good writer but needs to work on…”,
  • “has potential”,
  • “good analytical skills”
Specific errors
Spelling and grammar errors found 5.8/7.0 2.9/7.0
Technical writing errors 4.9/6.0 4.1/6.0
Errors in fact 3.9/5.0 3.2/5.0
Errors in analysis Rated better overall because he had fewer critical comments.
Formatting (not requested by research group, but 41 comments received) 29 comments / 41 11 comments / 41

The researchers noted that there was no significant correlation between a partners race/ethnicity and the differentiated patters of errors found between the two memos. In addition, there was no significant correlation between a partner’s gender and the differentiated patterns of errors found between the two memos, the researchers continued. The researchers stated that they did find that female partners generally found more errors and wrote longer narratives than the male partners.

President Barack Obama: Delivers Eulogy Providing Comfort to Families and Nation Grieving the Loss of Nine Persons to Murder in Charleston, South Carolina

Know Their Names, By Sarah Green, sarahgreenillustration (http://sarahgreenillustration.tumblr.com/)

Know Their Names, by Sarah Green, sarahgreenillustration (http://sarahgreenillustration.tumblr.com/)

On June 17, 2015, nine Black people were killed during a Bible study meeting at Emanuel African Methodist Episcopal Church (Emanuel AME) by a visitor (Dylann Roof, now in jail awaiting criminal charges). One of the nine, Rev. Clementa Pinckney, was a pastor of Emanuel AME and was a South Carolina state senator.

[The remaining eight are–Ms. Cynthia Hurd; Ms. Susie Jackson; Rev. DePayne Middleton-Doctor; Mr. Tywanza Sanders; Rev. Daniel Simmons, Sr.; Rev. Sharonda Coleman-Singleton, and Ms. Myra Thompson.]

President Barack Obama, on June 26, 2015, delivered a eulogy for Rev. Pinckney as well as the other victims. Eulogies are tricky speeches–the words must

  • provide comfort to the grieving surving family members of the deceased,
  • wish the deceased well in their new life in eternity, and
  • honor the life of the deceased, in the case of a religious person, like those who worshiped at Emanuel AME, both their religious and secular lives.

The President was able to craft a wonderful speech that was comforting, respectful, and was encouraging of positive change as the response to tragedy. The YouTube video of the speech is presented below.

In closing, I use quotes from the President’s eulogy because it provides advice for the way forward in addressing structural discrimination.

None of us can or should expect a transformation in race relations overnight.  Every time something like this happens, somebody says we have to have a conversation about race.  We talk a lot about race.  There’s no shortcut.  And we don’t need more talk.

It would be a refutation of the forgiveness expressed by those families if we merely slipped into old habits, whereby those who disagree with us are not merely wrong but bad; where we shout instead of listen; where we barricade ourselves behind preconceived notions or well-practiced cynicism.

[Author’s Note: Persons, like Dylann Roof in a murder case discussed in this post, accused of a crime in the United States are presumed innocent until proven guilty.]

Futility of “Colorblindness” and Chuck Todd: Decisions in Crafting the Meet the Press Program in Aftermath of Charleston, S.C., Murders Continued Long-Running Theme of U.S. White Hegemony–White Innocence and Humanity and Black Guilt and Non-Humanity

[Note: Persons, like Dylann Roof in a murder case discussed below, accused of a crime in the United States are presumed innocent until proven guilty.]

On June 21, 2015, Chuck Todd (White) of NBC’s news program, Meet the Press, discussed the aftermath of the murder of nine black people attending a bible study class at church. The alleged killer, Dylann Roof, also attended the bible study class with the victims before shooting and killing them. [Black victims of a White accused criminal] Following that coverage, Todd and apparently Meet the Press staffers, decided to show a clip of Black convicted criminals who had regretted using guns with their crimes. [Black criminals (feeling regret)] Such juxtaposition Todd justified in a June 21, 2015, explanation:

We decided against delaying the segment because we wanted to show multiple sides of what gun violence does in this country. We thought the issue of gun violence in our culture and society was an important conversation to continue–too important to put off for another week. The consequences of gun violence should not be hidden.

The murders which occurred in Charleston, South Carolina, are not at all related to the clip which Todd and his staff decided to show, something that Eugene Robinson stated after the clip concluded. There is a tie between the stories that I will allow–that there were victims of gun violence (Charleston, South Carolina) and the regret of those who used guns to commit crimes that led to the deaths of others (in the clip).

However, with Todd and Meet the Press deciding to juxtapose the stories, they introduced another point–the devaluation of Black lives and the maintenance of the humanity of White people, including criminals. Within this point is a further implied statement that people should not care about the Black victims because there are Black criminals who have killed (but regret it).**

Moreover, in the Meet the Press juxtaposition, there was no discussion of Dylann Roof and his criminal behavior or motivations or that White people also commit the crime of murder. With these discussions of White people ignored in the Meet the Press program, the tired paradigm of White innocence and humanity and Black guilt and non-humanity was continued, even in the midst of tragedy and the presence of Black humanity, Christian witness, kindness, and forgiveness in welcoming a White person they did not know into their Bible study. (The quotes below are from an article at ABC News.)
“I forgive you,” the daughter of victim Ethel Lance, 70, said through tears to Roof, who appeared at the bond hearing via video-conferencing from jail. “You took something very precious from me and I will never talk to her ever again. I will never be able to hold her again. But I forgive you. And have mercy on your soul.”
Felicia Sanders, the mother of the slain Tywanza Sanders, 26, said, “We welcomed you Wednesday night in our bible study with open arms.” “Every fiber in my body hurts,” Sanders said. “And I’ll never be the same.”
Alana Simmons, granddaughter of victim Daniel Simmons Sr., 74, said, “Although my grandfather and the other victims died at the hands of hate, this is proof everyone’s plea for your soul is proof that they lived and loved and their legacies will live and love. So hate won’t win and I just want to thank the court for making sure that hate doesn’t win.”
Bethane Middleton Brown, the sister of Rev. DePayne Middleton-Doctor said, “For me, I am a work in progress. And I acknowledge I am very angry. But one thing that she’s always joined in our family with is that she taught me that we are the families that love built. We have no room for hate so we have to forgive. I pray God on your soul and I also thank god that I will be around when your judgment day comes with him. May God bless you.”
“I forgive you,” said Anthony Thompson, the husband of slain Myra Thompson, 59. “But we would like you to take this opportunity to repent. Repent, confess, give your life to the one who matters most: Christ. So that he can change it, can change your ways no matter what happened to you and you’ll be OK. Do that and you’ll be better off than what you are right now.”

Regardless of the Christian witness of the victims’ families at the hearing, Magistrate Judge James Gosnell (White) still played to the White humanity and Black inhumanity White hegemonic paradigm in stating to the (Black) victims’ families that they should also remember that Roof’s family (White) are also victims. One can argue that such a statement was not germane at a bond hearing, but, if the statement had to be made, Gosnell had to direct it to Dylann Roof (White).

Todd and the Meet the Press staff are rightly criticized for their editorial decisions, which were influenced by White hegemony. No mere explanations are sufficient; the frame of Whiteness was intricately involved in the decision-making process. Todd and his staff must come to terms with this reality and correct the wrongs they have committed in the name of “colorblindness.” [**The disclaimer that Todd offered in the introduction of the clip is insufficient and worse, silent, on the involvement of Whites.

The circumstances you are about to see are very different from the racist violence in Charleston. In this case, the inmates are African American that you’re going to hear from. But their lessons remain important. We simply ask you to look at this be a colorblind issue, as about just simply gun violence.”]

Dick Grote, Forced Distribution, and the EEOC Compliance Manual: Forced Distribution Must Show Compliance with All Civil Rights Laws and Regulations

Forced Ranking, its main apologist is Dick Grote, is a blunt management tool, one that does not work in an imperfect world. When imperfect human beings, named as managers, deign themselves to be perfect judges of “performance” by virtue of their position and power over other human beings, the result must be tragedy. See, for example, the Vanity Fair article on Microsoft or read the many articles on the failures of Enron.

This tragedy is compounded with one of the United States of America’s great shames and weaknesses–chattel slavery of African Americans and all of the negative results visited on those human beings considered as mere property and their descendants. The United States has barely started the recovery process on this indelible stain on the society and its governmental institutions, yet careful and conscientious observers witness consistent backsliding on true equal opportunity. Such weakness is magnified greatly with reckless use of forced distribution, with all of the negatives of the terrible procedure, such as

  • being emotionally abused through unchecked abuse of power,
  • finding new paying work,
  • having to explain the firing in neutral terms repeatedly in interviews with potential employers, and
  • losing access to money to pay for life’s necessities (food, shelter, and clothing) for oneself and his or her family.

All of the bulleted items (above) are thrown onto the target (the so-called poor performer, c-bucket employee) who does not know of the extent of the management’s wicked actions in “calibration” meetings.

Grote, in his writings (analyzed on this blog) on forced distribution, never directly considers the Equal Employment Opportunity Commission’s Compliance Manual and its effect on the use of forced distribution in the workplace. Obliquely, there is one example, that I contrast with an example from the EEOC’s Compliance Manual (below). Employers must be aware, however, that all aspects of processes affecting employees must be without bias.

Dick Grote Quote Equal Employment Opportunity Compliance Manual
“But what if a company’s forced ranking procedure, honestly and objectively done, reveals that the blacks or women or disabled employees just aren’t as talented as the white ones? Should they do what some Harvard professors are said to do and award A’s to all the blacks, just to keep them from squawking?” (Grote, page 4 (a quote from a previous post)).

(Note: Consider this statement from Grote with the ever-present and persistent legacy of slavery and Jim Crow subjugation in the United States of America.)

2. Performance Evaluations

Performance evaluations frequently serve as the basis for numerous other employment decisions, such as pay, promotions, and terminations. They should be unaffected by race bias.

EXAMPLE 23 PERFORMANCE EVALUATIONS

Daniel is a customer service representative, and the only African American in his unit. Until recently he has received uniformly stellar performance ratings, received performance awards, and earned a good reputation among his customers and colleagues.

Things began to change, however, when a new supervisor was assigned a year ago to manage his unit. While Daniel had long been rated one of the best employees, the new supervisor began rating Daniel as below average, which has affected Daniel’s quarterly bonuses.

He files a charge alleging race discrimination. A review of the performance evaluations of Daniel and others in his unit reveals that while Daniel’s overall performance rating has dropped markedly, the ratings of his counterparts have gone up. Significantly, on the most objective part of his performance evaluation – “quantity of results,” which measures the number of accounts serviced – Daniel was rated below average when in actuality he serviced more accounts than persons with higher ratings in this performance category. In addition, there is evidence that the supervisor undermined Daniel’s professional standing with customers – for example, by taking over meetings Daniel was supposed to lead, and refusing to correct a customer’s clearly mistaken belief that Daniel was responsible for an error. This treatment is markedly different than that of Daniel’s colleagues.

The investigation reveals no evidence of a nondiscriminatory reason – such as a pure personality clash (i.e., one not rooted in the alleged bias)(147) – that explains Daniel’s treatment. There is reasonable cause to believe Daniel’s performance evaluations, and thus his pay, were racially discriminatory.(148)

Futility of “Colorblindness”: Use of the Word “Thug” Is One of Dehumanization When It Crosses the Color Line

In Baltimore on April 27, 2015, the city police closed the Maryland Transportation Authority’s subway station and bus stop, located close to the Mondawmin Mall. Yet, there were many students and other travelers coming to that place, a major transit area, to go home or other places. The people were stuck in that place without being able to leave. An incident occurred, with property damage.

However, on the same day, was the funeral for Mr. Freddie Gray, who died of injuries sustained while in police custody (the specifics of which is being investigated as of the date of this post). The incident was seen as a result of frustration for the lack of answers for the death of Mr. Gray, but it seems that the incident was separate from Mr. Gray and a direct result of police blocking transit passengers from getting to their buses and subway trains.

An issue has developed as to how the incident is being characterized, namely by the use of the word “thug.” W.E.B. Du Bois in “The Souls of Black Folk” had written about the color line, the very different perceptions of life (and context applied to words) between members of the White society and the non-White societies.

The long history and continuing practice of Black subjugation and dehumanization does not permit for any ambiguity in words, such as for the word thug, once used liberally to discuss the incident in Baltimore on April 27. The situation was already charged with all of the events going on in the city before, on, and after that particular day. It is preferable to deal with the property damage and those that caused it with dispassion, just like the persons with authority have asked people to do while investigating police action around Mr. Gray, which lead to his death.

More specifically, the people causing the damage should be dealt with as human beings that made a wrong decision and allow them to have the ability for redemption and to repair the damage caused to other’s property and to themselves. Careless use of the dehumanizing words like thug needlessly inflame passions and continue to demonstrate the United States’ systemic dehumanization of non-White people.

While condemning others for undesirable acting out of frustration, several politicians conducted themselves in a similar way by generous denial of humanity to people that they criticized.

  • President Barack Obama, April 28, 2015, statement (bold by the blog author): “My understanding is, is you’ve got some of the same organizers now going back into these communities to try to clean up in the aftermath of a handful of criminals and thugs who tore up the place.  What they were doing, what those community leaders and clergy and others were doing, that is a statement.  That’s the kind of organizing that needs to take place if we’re going to tackle this problem.  And they deserve credit for it, and we should be lifting them up.” (Use of the word defended by the White House, April 29, 2015. Of note, Josh Earnest, the President’s press secretary, suggested the dictionary definition, but with the color-line area in the United States of America, clarity, and universally acceptable definitions is far more important. If the White House cannot accept a differing perspective on this issue, one can imagine the uphill battle necessary to change a social structure causing so many to suffer because of not belonging to the social majority group in the United States.)
  • Baltimore Mayor Stephanie Rawlings-Blake used the word but later clarified her remarks (in sum, treating those that committed errors as human beings).

A member of the Baltimore City Council, Carl Stokes, disagreed with a CNN’s Erin Burnett, stating that thug is shorthand for the N word. (Author’s note: Differing underlying worldviews of Stokes and Burnett are on display in this short interaction. Conflict over definition also lead to an odd situation of CNN personality, Ashleigh Banfield (White), trying to tell a Black person, Mr. Stokes, why use of the N word is wrong (when it is solely applied to Black people)). It is the reason why mere dictionary definition of the word thug is insufficient for the understanding needed for true equality to be placed in practice.)

Thomas Jefferson High School for Science and Technology: Statement of Robert “Bob” Frye in Washington Post Article about Black Student Applicants Unnecessarily Offensive and Counterfactual

Thomas Jefferson High School for Science and Technology (TJHSST), is a Fairfax County, Va., high school that focuses on science and technology. Admission to the public high school is through an admissions process. It is a school which has been a topic of a few posts on this blog.

In the Washington Post, on March 31, 2015, there was another article about the composition of the class at TJHSST, particularly that the number of Asian students had increased. The article did not mention that the number of White students has been on a trend of general decline since the class of 2015.

Thomas Jefferson High School for Science and Technology, Number of Admitted Students
Race Class of 2019 Class of 2018 Class of 2017 Class of 2016 Class of 2015
Asian 346 323 317 308 273
White 102 117 123 126 161
Black 8 10 5 7 6
Hispanic* 12 8 15 13 13

*The term “Hispanic” represents national origin, not race.

Fairfax County, Va. (population: 1,137,538 (2010 Census)

Race Percentage of population Number
White 67.2% 764,426
Asian 18.8 213,857
Black 9.9 112,616
Native American 0.7 7,963

admitted student table 2

The issue of the paucity of Black students at TJHSST has been a concern. “Outreach” is usually provided as the solution; however, mere outreach is not necessarily needed because an earlier post showed that many Black students were passing the admissions test, yet very few were being admitted.

So, upon reading a statement of Mr. Robert “Bob” Frye, a former Fairfax County School Board (FCSB) member (said to be “one of the longest serving black members” of FCSB), I took exception to it as–

  • the statement at once presumed that concern about Black student admissions rate is equivalent to “lowering standards” and
  • the statement is contrary to the admissions data (presented in the charts above).

Mr. Frye is quoted as saying–“‘I have no interest in lowering the standards at TJ,’ said Frye, 78, who served as chairman in 1999 and 2000. ‘I believe even now with the proper amount of preparation and interest the numbers [of black students] could surely be higher than they are now.'”

The numbers have shown a consistent low number of Black student admissions, despite many more Black students passing the test (a complaint to the U.S. Department of Education’s Office of Civil Rights on this latter point is ongoing (since 2012)), so this reality contradicts the suggestion that the answer is that Black students (who want to attend a science and technology institute) need better preparation to pass the admissions test.

Had Mr. Frye simply left his statement that the administration should look at admissions process of TJHSST that, alone, would not have provoked a negative reaction (but, notably, Mr. Frye has made such statements before in the past, yet in 2015, the same request is still being made).

The data provided by Fairfax County Public Schools, cited, in part, in the charts above, are not complete as the composition of the student test passers is not provided. That data are needed to see what the issue of the low Black admitted student numbers. Without it, a fair determination or evaluation cannot be made.

But, undeniably, there is a definite shifting in the TJHSST student body composition. It will be interesting to see if TJHSST remains a public school.

Federal Reserve Board: Brief for case involving claim of racial discrimination; Artis v. Bernanke, 2011 decision of the D.C. Circuit Court of Appeals

Author’s note: This post will differ from previous posts in that it will feature a longer exposition. It is important to be a little longer because the case involving the class plaintiffs and the Federal Reserve Board has been ongoing for about 18 years. This case before the D.C. Circuit was decided in January 2011. On September 29, 2014, the district court denied class certification to the plaintiffs. See Artis v. Yellen, Civil Action No. 01-400 (EGS). The case remains active as of the date of this post.

[Note (July 23, 2015): The U.S. District Court for the District of Columbia, Judge Emmet G. Sullivan, dismissed this case with prejudice.]

Artis v. Bernanke, No. 09-5121 (D.C. Cir. 2011)

Summary: D.C. Circuit Court of Appeals held that class members claiming racial discrimination at the Federal Reserve Board (Board) did satisfy the Board’s Equal Employment Opportunity (EEO) regulations requiring a counseling session with the Board’s EEO office because the class did provide information about specific instances of discrimination and offered corresponding allegations of discrimination against individual class agents. The D.C. Circuit determined that such information was enough for the Board to investigate and try to resolve the class claims.

Facts: The plaintiffs, a class of secretaries currently and formerly employed by the Board, claimed that the Board systematically discriminated against them on account of their race in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq.).

On January 15 and February 13, 1997, several class members, with counsel, initiated counseling with the Board, in accordance with Board regulations 12 C.F.R. §268.104(a). (Board EEO counselors, with a Board lawyer, held group counseling sessions on these days.)

On January 17, 1997, class members, responding to the Boards request for information, submitted 14 identical copies of a document, “Resubmission of Class-Action Complaint.” In the January 17 document, the secretaries alleged a systemic and pervasive pattern of discrimination against African American secretaries by the Board. Particularly, that the Board–

  • Paid them lower salaries than non-minority secretaries,
  • Awarded them fewer and smaller bonuses,
  • Granted them fewer promotions,
  • Deflated their performance appraisals,
  • Denied them privileges and training that non-minority secretaries enjoyed,
  • Unfairly enforced leave procedures against them, and
  • Discriminated against them in the quantity and quality of work assignments.

Between January 24 and February 18, 1997, Board EEO counselors met individually with nine secretaries, in which those secretaries confirmed the general allegations in the January 17 Resubmission document, and some of them recounted specific instances of discrimination from personal experience. The Board’s EEO counselors prepared reports based on the notes they took in these counseling sessions.

The class members filed an administrative complaint on March 3, 1997, but the Board dismissed the complaint on July 23, 1997. And, the U.S. Equal Employment Opportunity Commission affirmed the Board’s dismissal on November 18, 1998. The class filed a complaint in the federal district court on February 22, 2001.

The Board filed a motion to dismiss, which the district court denied. The district court ordered discovery on the issue of exhaustion, “whether the plaintiffs have satisfied their obligation to engage in counseling” and whether “the administrative counseling process was a futile exercise,” citing Artis v. Greenspan, 223 F. Supp. 2d 149 (D.D.C. 2002).

After five years of contentious discovery, the Board renewed its motion to dismiss in 2005, which the district court granted on January 31, 2007, holding that the court lacked subject matter jurisdiction over the class because the class members failed to exhaust the counseling requirement because the class failed to provide any meaningful information about specific instances of discrimination. The class members appealed.

Holding: The D.C. Circuit, vacating the decision of the district court and remanding the case to the district court, held that where counseling produces sufficient information to enable the agency to investigate the claim, that counseling purpose has been served. The court determined that the class members did provide meaningful information about specific instances of discrimination in the January 17 Resubmission document and offered corresponding allegations of discrimination against individual class agents. Such information, the D.C. Circuit reasoned, was enough for the Board to investigate and try to resolves the claims of the class members. (See pages 9-12 of the opinion for the specific allegations and the individual experiences of discrimination.)

Moreover, the court stated that it reviews challenges to dismissals for lack of administrative exhaustion de novo, as it is a question of law, citing Brooks v. Dist. Hosp. Partners, L.P., 606 F.3d 800 (D.C. Cir. 2010).

Analysis: The purpose of counseling, the court explained, in the Title VII context, is clear from the text of the Board’s regulation–to enable the agency and its employee “to try to informally resolve the matter,” citing 12 C.F.R. §268.104(a), Wilson v. Peña, 79 F.3d 154 (D.C. Cir. 1996), and Blackmon-Malloy v. United States Capitol Police Bd., 575 F.3d 699 (D.C. Cir. 2009).

The court noted that Title VII’s exhaustion requirement should not be read to create useless procedural technicalities, citing President v. Vance, 627 F.2d 353 (D.C. Cir. 1980). An agency risks misusing the counseling requirement, the court explained, when it demands excessively detailed support for a class-wide complaint alleging a pattern and practice of subtle financial and professional discrimination.

Claims of systemically depressed salaries, performance ratings, advancement opportunities, and the like can often be proven only by statistical comparison of the employer’s treatment of the class to its treatment of non-minority employees, the court noted. The court continued, stating that such an analysis will only be possible after employees obtain data from their employer, informally or through discovery.

Thus, the court concluded that it would be perverse to dismiss a complaint for failure to provide adequate detail in counseling when all of the relevant data is in the employer’s exclusive control.

In addition, the court noted that the class status of the plaintiffs allows a representative plaintiff to satisfy the counseling requirement on behalf of similarly situated class members. As a result, the entire class exhausted administrative remedies by virtue of the class agents successful completion of counseling.

Moreover, the court noted in a footnote that failure to exhaust administrative remedies under Title VII is not jurisdictional because Title VII does not include a clear statement of that intent.