Race Discrimination in the Workplace: Signs, Examples, and Legal Rights

by Anna D’Agostino and Jenna Leslie

Race discrimination in the workplace is an all-too-common issue with serious consequences for both employers and employees.  While some forms of race discrimination are obvious, even more subtle actions can implicate federal and state laws.  Either way, race discrimination in the workplace is incredibly harmful, and employees should know the rights and remedies available to them.

What is Racial Discrimination in the Workplace?

Race discrimination occurs when an employer treats a job applicant or employee unfavorably because that person is or is perceived to be a member of a certain race.   This includes decisions about hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment.  Race discrimination can also occur when an employer treats an applicant or employee unfairly because he or she is married to or associated with a person of a certain race.

What is Not Considered Racial Discrimination?

It is important to understand that policies that apply equally to all employees and are related to the job are generally not considered discriminatory.  For example, a rule about keeping stray hair tied back in a food services position is likely not discriminatory.  These standards are often imposed to meet health and safety requirements.  However, a generally applicable policy can still be discriminatory if it has a negative impact on employees of a particular race or color and is not job-related and necessary to business operations.

Similarly, employment decisions based on job performance, work experience, or seniority are not discrimination. Layoff decisions that result from economic hardship are also not discriminatory, so long as the business bases its choice on neutral characteristics such as performance and efficiency.

Only employment decisions that are based only on protected class characteristics are unlawful.

Common Forms of Race Discrimination in the Workplace

Discrimination at work occurs in many different ways. Some instances are more obvious than others, and some groups of people are disproportionately affected compared to their peers.  For instance, about 41% of Black individuals report experiencing unfair employment decisions because of their race or ethnicity. This is a significantly higher rate than Asian, Hispanic, and White workers.

Disparate Treatment Discrimination

Disparate treatment (also called adverse treatment) occurs when an employer treats applicants or employees differently because of their race or race-related characteristics.   Employees seeking to bring a disparate treatment claim must show that other people in similar situations were treated differently by the employer. Disparate treatment cases usually involve more intentional or overt actions than other types of discrimination.

Disparate Impact Discrimination

Disparate impact discrimination occurs when a policy or rule which seems neutral on its face ultimately has a negative impact on employees of a certain race or color.  This type of discrimination is often more subtle than disparate treatment discrimination and may even be unintentional.  Common examples of policies which may run afoul of disparate impact discrimination are school dress codes which disproportionately affect students of a certain race or lending criteria that disproportionately disqualify people of color from obtaining mortgages.

Harassment

Harassment at the workplace is unlawful when it creates a hostile work environment, or an environment that a reasonable person would find intimidating, offensive, abusive, or hostile.  An action may not rise to the level of harassment if it is a one-time occurrence. Rather, the behavior must be severe enough to distort the atmosphere of the workplace.

Examples of harassment include slurs, name calling, threats, offensive jokes, insults, and display or circulation of offensive objects or pictures.  When these actions are tied to a person’s race or color, they also constitute race discrimination.

Anyone who is affected by the offensive conduct can be a victim, not just the direct target of harassment.

Employers are liable for harassment unless they can prove that they tried to prevent and correct the offensive behavior, and the employee failed to use available remedies.  Importantly, employers can be liable for harassment committed by customers or independent contractors if the employer had control over the actor and knew or should have known about the harassment and failed to take corrective action.

Retaliation for Reporting Discrimination

If you file a discrimination charge, testify, or participate in investigations, proceedings, or lawsuits pertaining to race discrimination in the workplace, and then face unfavorable treatment at work for doing so, this is known as retaliation.  Examples of retaliation include reduced workloads, wrongful discharge, and harassment. Retaliation against individuals exercising their right to be free from race discrimination in the workplace is just as unlawful as harassment and discrimination.

Federal Protections Against Race Discrimination

Pursuant to federal law, employers cannot consider race or race-related characteristics, such as hair texture, skin color, or certain facial features, when making decisions about hiring, firing, promoting, training, and paying their employees.  This prohibition was established in the Civil Rights Act of 1964 and is enforced by the Equal Employment Opportunity Commission (EEOC).

Title VII of the Civil Rights Act

The Civil Rights Act of 1964 prohibits employment discrimination based on race, color, national origin, sex, and religion. These characteristics are known as protected classes. It’s important to note that race cannot be argued to be a “bona fide occupational qualification,” (BFOQ) the way that some other protected classes may.  In other words, race can never be used as a reason for employment decisions in any job.

Equal Employment Opportunity Commission

The EEOC is a federal agency responsible for enforcing civil rights laws.  Employees who believe they have experienced race discrimination in the workplace can file a claim with the EEOC, which has the authority to investigate and try to settle the charge.  The EEOC can also file lawsuits to address discrimination.

Remedies and Damages Available

While the relief available depends on the discriminatory action that was taken, remedies should aim to place the victim in the position they would have been in had the discrimination not occurred.  Common remedies include back pay, front pay, and benefits.  Victims are also able to recover attorneys’ fees and legal costs.

Perhaps most importantly, the employer will be required to stop its discriminatory practices and take action to prevent future discrimination.

In cases of intentional race discrimination in the workplace, the victim may also be awarded compensatory and punitive damages.

Combating Race Discrimination with Miller Shah

The legal team at Miller Shah has significant experience representing victims of race discrimination in their workplace. We have successfully represented both individual and class action clients who have suffered harassment, discrimination, and retaliation.  We also counsel employers on how to prevent harassment and discrimination in the workplace.

If you believe you may have experienced race discrimination or harassment in the workplace, contact us for a consultation.