Racial discrimination is based on a combination of skin color and/or national origin. It is more than just the more prevalent discrimination by Caucasians against people of color – employers of all kinds often prefer to utilize certain races or employees of a particular national origin in particular positions. The prevalence of race discrimination and racial disparity in pay is rampant in the United States, and it is of course illegal.
What qualifies as racial discrimination?
Racial discrimination can arise either on an individual level or to a group of employees. Race discrimination can be based on an employee’s:
- Skin color, complexion or pigmentation
- Hairstyle or facial features
- Stereotypes or assumptions linked with a certain group
- Speech linked with a certain group
- Physical or cultural features
- Perceived ethnic or cultural heritage
How employers avoid responsibility
Racial discrimination is often more difficult to prove than other types of discrimination. This may be because you were hired by that company when you were that race, so there is a concept that the defense tends to employ called “same actor.” It means that the same person hired you who fired you, and they hired you when you were the race that you are, so they weren’t discriminating against you.
We often find situations where different persons played a role in the termination than during the hiring process, and that’s particularly true among longer term employees. Whether or not that particular defense is viable, the other problem of proving that your employer chose to terminate your employment because of your race involves other evidence.
It’s not enough to say, for example, that you were the only African-American person there, or the only Latino there. You need some type of a comment, a pattern, or a practice by the employer that shows you were treated differently based on your race.
Another thing that employers have the right to do is to terminate non-citizens who do not have the right to work. If you are not a naturalized American citizen, or a green card holder with the right to work in the United States, you can legally be fired by your employer. However, your employer shouldn’t have hired you in the first place. Sometimes, employers look the other way, and other times the employer uses that as an excuse for another illegal motivation to terminate the employee.
In our strongest cases we have hard evidence of egregious racism, like a noose hanging in the workplace, pictures of racially stereotypical caricatures on the wall, or other evidence of a visual nature that helps us prove race or national origin was the real basis for the employer’s decision.
Employers don’t readily admit to firing you due to your race. They always come up with what’s called a pretext, which is a false reason for your termination. They’ll say they are eliminating your position, or that your job performance was poor, or that you violated a policy that was never previously enforced.
Our job to show that the supposed reason (pretext) is not the real reason for your termination, and that your race was the real reason. With this information, we are able to build a case. Unfortunately, such information is hard to obtain. We are often able to get it from text messages and emails that the court forces the employer to turn over. However, we need to have a good basis to request such personal and private information.
Types of race discrimination in the workplace
There are three primary forms of racial discrimination in the workplace:
Disparate treatment is where an employer treats an employee differently compared to other employees who were in the same situation. Depending on the circumstances, this may be illegal. For example, two employees, Frank who is African-American and Mark who is white, visit a restaurant together for lunch. They both lost track of time and arrived back at the office over 45 minutes late. Upon arrival, their boss fires Frank immediately, but only gives Mark a warning.
If Frank was fired because he is African-American, and Mark only got a warning because he is white, then this would be disparate treatment because of race, which is illegal. However, if the actual reason is that Frank had been late 3 times before, and Mark was a first time offender, then this would be disparate treatment on the basis of attendance, which would be legal.
Disparate impact relates to an employers policy or practice, that affect a group of people directly more than another group ( regardless if it’s intentional or not). For example, Rose, owner of Rose’s Bakery is refusing to hire dishwashers unless they hold a high school diploma.
If Rose’s policy affects Hispanics as a group, it could be a form of disparate impact. Rose would have to prove that having a high school diploma was necessary to wash dishes, or she may be guilty of illegal discrimination, even if it wasn’t her intention.
A racially hostile work environment is where racial remarks, derogatory comments, and other offensive behaviors are undesired, severe, and common, and affect job performance or an employee’s quality of life.
Laws protecting employees against racial discrimination
Federal law forbids discrimination based on race, ethnicity, color, religion or gender. Under Title VII of the Civil Rights Act of 1964, employees working in the United States are protected from discrimination in the workplace.
The Civil Rights Act also prohibits any employee discrimination based on association with any race, ethnicity, color, religion or gender. Racial discrimination in the workplace is regulated and addressed by the Equal Employment Opportunity Commission (EEOC).
The California Fair Employment and Housing Act (FEHA) is a state law which forbids employers to discriminate against current employees or applicants, based on their actual or perceived national origin or ancestry. The FEHA also prohibits employers from discriminating against employees based on their association with an individual, who is or perceived to be, a member of a protected class.
Under the FEHA, it is illegal for an employer to:
- Decline the chance to hire, discharge, or to otherwise discriminate against an individual regarding compensation, terms, conditions or rights of employment due to one’s national origin or ancestry
- Refuse to select, train or terminate an individual from a training program, which directly leads to employment, due to one’s national origin or ancestry
- Print any form of publication, or enquire, that assert any limitation, specification, or discrimination to national origin or ancestry
- Discriminate against any individual because he/she has disputed any practices forbidden under the FEHA, or because he/she has filed a complaint, testified or aided any proceeding under the FEHA
- Help, enforce, or coerce the doing of any of the acts prohibited under the FEHA
- Harass an employee, applicant or individual provides services pursuant to a contract because of one’s national origin or ancestry
- Fail to take the necessary steps to prevent racial discrimination and harassment from happening
How are employees protected from race discrimination?
If you work in California for an employer with five or more employees, you are protected against race discrimination. The FEHA applies to all employers with five or more employees, and it prohibits discrimination based on race or national origin.
The great thing about the FEHA is that it has a one-way fee shifting provision that allows employment attorneys to take on meritorious cases for employees who are the victims of racial discrimination on a contingency basis. If you win, the employer is forced to pay your legal fees.
The good thing about the attorney’s fee shifting provision is, if we don’t prevail at trial, the reverse is not true. The employer’s legal fees are never borne by the fired employee, unless the case is deemed to be frivolous. For the purposes of statute, frivolous means entirely made up. If your case is a legitimate case but the jury just thinks something else was the reason for your termination, you don’t owe your former employer its attorney’s fees.
Damages available in race discrimination cases
There are several types of damages available to victims of racial discrimination. The most obvious is lost wages. That is the wages you would have earned had you not been wrongfully terminated. In addition, you are entitled to future lost wages. Those would be the wages, if you are not able to find replacement employment, you would have earned in the future.
Another part of your damages is even greater. It’s called emotional distress. Emotional distress is the mental suffering that you have been caused by being discriminated against based on your race. This part of your damages is often the largest part of the monetary award, should you prevail in a racial discrimination case.
Emotional distress damages require that you document the mental suffering that you’ve gone through throughout the ending of your employment, and thereafter. Yet another part of your damages are attorney’s fees and costs. The Fair Employment and Housing Act provides for attorney’s fees and costs for employees who are the victims of racial discrimination. That helps to pay for the litigation in order to pursue your rights under the law.
Often, by far, the greatest possible damage award is called punitive damages. Punitive damages, although not available in all cases, are available when an officer or managing agent of the corporation is involved in a termination decision that involves malice, oppression or fraud. It could be a corporate officer or a person who sets corporate policy, or anyone high enough up in the organization that we can hold the organization or the employer liable for their actions to justify the imposition of punitive damages.
The purpose of punitive damages is to punish the company, and to make it so they never commit this type of illegal act again. Those are often the most valuable part of any jury award because they are measured not by the damages that you have suffered, but by the overall value of the company.
Large companies may have hundreds of millions in the bank. It’s going to take a lot of money in the form of a jury award to punish a company with so much cash. Juries are often willing to award large amounts of punitive damages so long as we’ve already succeeded in convincing the court that an officer or managing agent was responsible for any part of your termination decision. Once we reach the hurdle where punitive damages are on the table, your case becomes far more valuable.
Who can file a charge for job discrimination on the basis of race?
Any employee who feels that the real reason for their termination was their race or their national origin can file a lawsuit for race discrimination. By statute, you have three years to file a claim with the EEOC or DFEH and obtain a Right-to-Sue letter. You need to have facts that enable you to prove that race was at the heart of the employer’s decision, rather than just thinking it was.
Oftentimes, there are facts that we can learn through discovery to support your position. We can obtain documents that might include pejorative terms about your race, or admissions by the employer that your race was a motivating factor in their decision.
Often, it requires supporting witness statements from former co-workers or clients who would have been in a position to know the real reason for the company’s decision.
Racial discrimination cases are easier to prove if you heard racist comments being made and can say exactly who said them and when. Often, those comments could come through a third party, meaning a co-worker told you that your boss said your termination was because of your race or your country of origin.
An employment lawyer would then collect witness declaration(s) and/or other documentation or photographs to support your claim, and then sue the employer once there was sufficient corroborating evidence.
How can I prove race discrimination against my employer?
To file a racial discrimination lawsuit, you must first file your complaint with an administrative agency. For a federal complaint, you would need to first file your complaint with the EEOC.
Under the typical anti-discrimination law, an employee must be able to answer “yes” to the following questions:
- Are you a member of a protected class?
- Were you qualified for your job position?
- Did your employer take unfavorable action against you? This includes hiring, promotion, termination and compensation.
- Were you replaced by someone who is not in your protected class?
Two different types of evidence can be used to help prove racial discrimination in the workplace:
Direct evidence is the most concrete way of showing that racial discrimination and inequality did occur. Direct evidence of racial discrimination includes statements by managers or supervisors that directly describe the action taken against you to protect your protected class status.
Circumstantial evidence, on the other hand, relies on an inference to combine the evidence to a conclusion. In most cases, employees must rely on circumstantial evidence to create a premise of discrimination.
What should I do if I feel my rights have been violated?
Race discrimination is an unfortunate reality in the U.S. today. It is a terrible part of our nation’s history and something that should be eradicated. However, it’s still a reality that exists in our workplaces, and when you feel that you are a victim of race discrimination, you should do everything in your power to gather as many witnesses and as much documentation as possible to support your contention.
The next thing you should do is call an employment lawyer right away. Sometimes, there are specific fact patterns that seem to repeat themselves in racial discrimination cases. By asking several questions, a qualified employment attorney can find out whether or not you are a victim of one of those patterns.
Keep in mind, an employer will never admit that race was at the core of their decision. They will come up with a false reason for your termination and then it’s the lawyer’s job to prove that the reason they provided is not true, and that the more likely reason was your race or national origin.
It’s often helpful if you have a witness or a co-worker to support your contention or to repeat things that they overheard your employer say that allow us to connect race to the termination decision.
We represent employees.
Under both State and Federal Law, it is unlawful for your employer to subject you to unfavorable employment behavior or actions because of your race or country of origin. Furthermore, if your employer has created a hostile, abusive or daunting work environment, the law will help protect you against this or any other type of racial discrimination and harassment.
If you were a victim of racial discrimination in the workplace, we encourage you to get in touch with an experienced Los Angeles employment law firm. Wrongful Termination Law Group has more than a decade of experience handling these matters for clients throughout Los Angeles and Southern California. We offer a free initial consultation, and if we accept your case on contingency, there is no cost to you until your case is settled or won in court.