We may want to believe we live in a post-racial society, but the facts often say otherwise. The Equal Employment Opportunity Commission (“EEOC”) reports more than 32,000 race discrimination cases filed in 2016, representing about 35% of all cases pursued by the agency. We live in a time of increased racial tension, and the heightened rhetoric coming out of Washington and social media platforms, by its nature, seems to increasingly encourage those inclined toward animus to act on their prejudices across the country. Such behavior should have been eradicated years ago, yet it remains like a cancer we cannot quite shake, threatening to destabilize working environments across the United States.
Here in California, despite our progressive reputation, the agency pursued just over 1900 cases of racially based discrimination against employees, representing about 5.9% of the national statistics, and 32.5% of the State’s total of on-the-job discrimination cases determined to be egregious enough to be aggressively pursued by the EEOC.
What it is:
Racial discrimination in the workplace occurs when a person is treated unfairly on the job due to his or her race, color, ethnicity and/or national origin. Such discrimination is prohibited under both California and federal law and applies to all employment practices including:
● advertisements for positions or work programs,
● applications and interviews,
● hiring, transferring, promoting or termination
● Any other “adverse action/s” in employment, which can include any action taken by an employer, or agent of an employer that undermines or devalues the working conditions of an employee due to his or her race. Actions such as verbal harassment, inferior shift assignments, etc., can ultimately be challenged as unlawful if they are taken based on that employee’s racial makeup.
“Terms or conditions of employment” is a catch-all term for almost anything relating to your job: rate of pay, title, position, job description, role within a group, hours, vacations, working conditions etc.
Discrimination takes many forms, but ultimately the test will be whether or not an employee suffers one or more adverse action/s due to the bias of a supervisor, manager, or other person in a position to make determinations about that person’s status in his or her employment with the company.
Harassment can include racial slurs, offensive or derogatory remarks about a person’s race or color, or the display of racially offensive symbols. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment action such as those enumerated above.
In order better to understand what constitutes unlawful racial discrimination in employment, it may help to understand the two variations of the concept. The first, and more obvious form, is “disparate treatment,” which is the typical scenario where an employee knows he or she is being treated differently because of their race or ethnicity, and is experiencing a high level of racially targeted slurs or other inappropriate behavior.
The second form is “disparate impact, ” first identified in 1971, in Griggs v. Duke Power Co. (1971) 401 U.S. 424, 431-2, where the U.S. Supreme Court found that Title VII also prohibits any practice that will adversely impact a particular race more than another by virtue of its structure, such as an employment test geared more towards persons of one background than another. This form of discrimination does not necessarily involve a direct action that is discriminatory on its face (such as a racial slur), but rather involves a process that invariably favors one race over another (such as a test based on information that is more generally know by members of one culture).
What to do:
1. Document your claims.
For any claim to succeed, the claimant must provide evidence of their claim, whether that be to an agency such as the Department of Fair Employment and Housing (“DFEH,”) or to an employment attorney hired to litigate the wronged party’s claims. In Yosif Bakhit and Kiyada Miles v. Safety Marketing, Inc., a case brought by two male construction workers who were systematically harassed at work by being assigned the most unpleasant and challenging job assignments while being subjected to racist text messages and verbal slurs, the plaintiffs were able to prove that their rights had been violated significantly. Mr. Bakhit, a Sudanese Muslim, and Mr. Miles, an African-American, together received a jury award totaling almost $3.5 million dollars.
To reach damages like that, plaintiffs must have proof of the wrongdoing. So if you are on the receiving end of racially charged animosity at your place of employment, it would be wise to save any text messages and/or emails containing derogatory comments made against you, in case Human Resources does as little to follow up with your complaints as they did in the Bakhit case. Please note: you must secure these pieces of evidence without removing any protected or proprietary information belonging to your employer. If you suspect you are being set up for termination, make a backup of any incriminating email before you are terminated as the likelihood of the company cutting off access to your workstation immediately upon notification is high, particularly if they are seeking to cover their tracks in a discrimination case.
It would also be wise to secure copies of your personnel file at some point during any investigatory process that may occur as a result of your reporting the discrimination to HR. Documents contained in an employment file, like your employment contract, copy of the company policy regarding discrimination, time record, and witnesses’ statements can serve as valuable pieces of evidence.
2. Report the Discrimination
As soon as any pattern of racial animus begins to make itself known to you, you are required to report it to the company’s HR officer. If none exists, then you should request a private conference with the owner, CEO, etc., to both make a record of your complaints and to provide your employer an opportunity to correct the situation. If the CEO or owner is the one doing the discrimination, then move on to step three to determine your options.
3. Contact a lawyer
An experienced employment attorney is one who specializes in handling all forms of on-the-job discrimination. A lawyer can help you in preparing the evidence you’ve amassed for use in litigation, as well as assist you in communicating with your employer during the process. Ultimately, hiring a lawyer is the step that will ensure that you obtain the highest possible dollar amount when your damages are being computed, whether in settlement, mediation or litigation at trial.
If you believe you have experienced, or are experiencing any of the above treatment due to your race, national origin or your religion, you should report the behavior to your supervisors immediately, thoroughly document the instances of the harassment, and contact a lawyer to help you through the process.
We understand that many choose to just ignore such behavior in the hopes that it will simply go away, or that the person responsible will eventually lose interest. That rarely happens, and silence serves only to allow this behavior to continue unchallenged. If you do not want to “make waves” for your own sake, think about those who may follow you at that job, and what they may suffer as a result. This is not the world we want to leave to our children.
Remember that the team at Lazear Mack is here to help, and you may call us at 510-735-6316 or complete a web intake form here for an assessment of your claims.
Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117