How Can Racial Discrimination Happen in the Workplace?
The struggle against racism in the workplace continues. You have rights but proving discrimination can be challenging.
RACE, COLOR, NATIONAL ORIGIN, ETHNICITY & ANCESTRY
In California, it is unlawful for employers to discriminate against employees or job applicants based on their race, the color of their skin, their national origin, ethnicity, or ancestry.
It is also unlawful for employers to discriminate on the basis of an employee’s association with members of other races, skin colors, national origins, or ancestries. For example, co-workers, supervisors, and customers are not allowed to harass an employee because the employee is in an interracial relationship.
Because an employee’s ethnicity is not always known by the employer, California extended its protections against discrimination to employees who are perceived to be of a certain race, color, national origin, ethnicity, or ancestry.
The Department of Fair Employment and Housing (DFEH) is responsible for enforcing state laws that make it illegal to discriminate against a job applicant or employee.
Equal Employment Opportunity Commission (EEOC)The U.S. Equal Employment Opportunity Commission (EEOC) was founded more than 50 years ago to eradicate job discrimination. Unfortunately, EEOC complaint data for 2010 through 2017 shows that the agency closes most cases without concluding whether discrimination occurred. Case closures are based on insufficient evidence, largely due to a lack of sufficient funding and support.
The limitations of this system disproportionately hurts the Black population. Black workers make up 13 percent of the U.S. workforce, but racial discrimination against this group accounts for 26 percent of all claims filed with the EEOC and its partner agencies.
RETALIATION
Employers may not retaliate against an employee for making a complaint about harassment. This protection covers complaining about treatment that might be harassment.
For example, if a co-worker or supervisor makes comments that are offensive, and an employee complains, the employer may not take adverse action against the employee, even if it turns out that the offensive conduct is uncivil but does not rise to the level of being unlawful.
Employees have a right to insist on a workplace free of harassment and the conduct leading up to it. Unlawful retaliation can include termination, demotion, unfair changes in work requirements, increased scrutiny of performance, or other conduct that would discourage a person from complaining in the future.
Nearly 40 percent of people who filed complaints with the EEOC and partner agencies from 2010 through 2017 reported retaliation. According to EEOC enforcement and litigations statistics for 2019, of the more than 72,000 charges filed, 33 percent were for race and nearly 54 percent were for retaliation.
California workers cannot be legally retaliated against for reporting workplace discrimination against other employees, applicants, or co-workers, including:
Opposing workplace harassment
Opposing employment discrimination against other employees
Reporting employment discrimination or workplace harassment
Assisting with DFEH investigations or government inquiries
An employer cannot fire an employee for filing a workplace discrimination or harassment lawsuit. Firing an employee for filing a workplace discrimination claim is a retaliatory action, and may be considered wrongful termination.
PROVING DISCRIMINATION
The law places the burden on employees to prove discriminatory intent or impact. At times, discrimination may be open and obvious, such as if a supervisor uses racial slurs or pays people of one race less than others doing the same job. At other times, it may be more complicated to prove discrimination.
Usually, the key to proving a case is to find corroborating evidence that helps a judge or jury see that the employee is telling the truth about discrimination. Corroboration may come from others who take legal action with you. It may come from other current or past employees who are willing to testify about the harassing conduct. It may come from text messages or personnel records.
Your attorney can discuss with you the types of evidence that may effectively support your complaint.
WHEN TO TALK WITH AN ATTORNEY
If you are a victim of workplace discrimination, it is better to consult with an attorney promptly. It may be necessary to gather information to support your case while discrimination is ongoing. For example, an attorney may advise a clear but polite email to a human resources department or manager.
It is usually important to identify and interview witnesses. Almost every employment case requires the employee to file an administrative claim with a governmental agency like EEOC or DFEH before filing suit. Employees who work for the State of California or other public entities, and employees who belong to a union, may have other claims they must file before going to court. Failure to file an administrative claim on time can result in a case being lost before it is even filed.
Many employment law attorneys, including the Arnold Law Firm, offer legal representation based on contingency, a percentage of the money we obtain for you. You do not need funds upfront to hire us, because we are not paid unless we resolve your claim. Our legal team can evaluate your situation at no cost, and you will be under no obligation to hire us.
When you hire an attorney, what you say to him or her is strictly confidential. Client legal privilege is a rule of law that protects your communications with your lawyer. You can safely talk with your attorney without worrying that information will be shared without your permission.
Your lawyer can help you identify and protect your legal options. Talk to a lawyer as soon as you can to make sure you have enough time to file your claim and take your case to court.
FORMS OF RACIAL DISCRIMINATION
Racial discrimination in the workplace is prohibited in all employment practices, including:
Advertisements for positions or work programs
Applications, screening, and interviews
Hiring
Transferring, promoting
Job termination or demotion
Working conditions
Rate of pay
Job title, position or team role
Hours, schedule
Vacation, benefits
Performance evaluation
Types of assignments
Training, apprenticeship programs
Harassment
Company policies
Participating in an employee organization or union
WHAT DOES RACIAL DISCRIMINATION LOOK LIKE IN THE WORKPLACE?
Racial discrimination is not always be expressed through overt statements or physical threats. It can manifest in more subtle ways, such as unfair or unequal treatment in any terms or conditions of employment.
Signs of employment discrimination may involve treating certain groups of employees different from other employees. It could also include sudden changes in attitude towards an employee when an employer discovers an employee is part of a protected group. Possible discrimination may involve:
Sudden, baseless changes in job performance reviews
Exclusion from meetings and events
Change in work duties or workload increases
Reduced hours or reduced pay
Different rule enforcement involving workers of different backgrounds
Failure of management to put a stop to racist jokes in the workplace
Making fun of an individual’s accent
Failing to consider applicants with ethnic-sounding names
OTHER TYPES OF DISCRIMINATION
In addition to race, color, national origin, and ancestry, the California Fair Employment and Housing Act makes it illegal for an employer to discriminate because of religious creed, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person.
Your attorney can help you determine whether you are experiencing multiple forms of employment discrimination.