At Rukin Hyland, we represent employees have experienced workplace discrimination due to their race or color.
What is Racial Discrimination?
Racial discrimination involves treating an individual job applicant or employee differently because he or she is of a certain race, or because the individual has personal characteristics that are associated with a racial background (including race-linked diseases, cultural characteristics linked to race, or physical characteristics associated with race, such as skin complexion, hair texture or facial features).
Racial discrimination is a violation of both federal and state laws. Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex and to retaliate against a person who is involved in raising a discrimination claim against an employer. California’s Fair Employment and Housing Act (FEHA) prohibits employment discrimination on the basis of many individual factors, including race, as well as retaliation for filing a complaint, testifying, or assisting in proceedings related to practices forbidden by the Act.
Claims of race and color discrimination in the workplace fall into a few broad categories.
Discriminatory Employment Decisions
It is unlawful to treat an employee differently on account of his or her race in recruitment, hiring, promotion, work assignments, wages, benefits, leave, discipline, and termination. To prove a race discrimination claim, an employee generally must show that:
- He or she was an employee or job applicant of the employer
- There was an adverse employment action—for example, he or she was fired, or demoted, or constructively discharged (meaning the job conditions had become so bad he or she was forced to quit)
- That his or her race was the substantial motivating factor for the adverse employment action
The following types of conduct could be considered discriminatory:
- Using certain recruitment practices, such as relying on word-of-mouth advertising or sending job postings for the purpose of excluding people based on race
- Requesting that an employment agency refer only applicants who are of a particular race
Hiring and Promotion
- Using selection criteria in the hiring process that have a significant discriminatory effect without being able to prove that the criteria are job-related
- Relying on the discriminatory preferences of coworkers, customers or clients as the basis for an decision on employing an individual
- Requiring a specific “corporate look” or “image” policy as a proxy for discriminatory preferences or prejudices in hiring and promotion decisions
- Assigning or refusing to assign individuals to certain positions, facilities, or locations; denying promotions; physically isolating employees or otherwise segregating workers into jobs based on their race or color
Discipline, Demotion, and Discharge
- Discharging employees based on race instead of nondiscriminatory reasons, such as their quality or quantity of work
- Using customers’ or clients’ racial prejudices or preferences to justify discipline, demotion, or discharge decisions
Race discrimination occurs when an individual endures harassing behaviors related to his or her race or associated factors from supervisors, employees, customers, or commercial contacts that are (1) unwelcome and (2) so severe and pervasive that they “alter the conditions of the individual’s employment” by creating a hostile or abusive work environment. In evaluating whether a case would rise to the level of unlawful harassment, factors that are considered include whether the conduct was hostile and/or offensive, whether the individual was physically threatened or intimidated, how frequently the misconduct was repeated, and the context in which the harassment occurred.
How Do You Know if You are Being Racially Harassed?
The following types of verbal or physical conduct can constitute harassment:
- Offensive jokes, slurs, epithets, or name calling based on race or color
- Verbal or written mockery, insults or put-downs based on race or color
- The presence of offensive objects, pictures, or graffiti in the workplace
- Physical assaults, or threats of assault due to one’s race or color
Who Is Liable for Racial Discrimination?
Under California law, an employer is liable when a manager or supervisor engages in race discrimination. Where a co-worker engages in racial harassment, the employer is liable if it knew or should have known about the instances of discrimination and failed to take appropriate corrective action.
In addition, employers are liable for harassment by their customers or clients if they know or should have known about the harassment and fail to take action, regardless of the importance of the customer or client to the employer’s business.
What Must Employers Do to Prevent Racial Discrimination?
The FEHA requires that all California employers take affirmative steps to prevent racial discrimination in the workplace. This includes maintaining and distributing a written anti-discrimination policy that must:
- Identify all protected groups under the FEHA (race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, military and veteran status, and sexual orientation)
- Provide a mechanism by which employees may report discrimination to someone other than their direct supervisor—for example, to a human resources manager, a complaint hotline, or to the DFEH or EEOC
- Include a directive that supervisors must report all discrimination complaints received to a designated company representative
- Include a statement that all complaints will be followed by a fair, complete, and timely investigation and that the employer will maintain the confidentiality of the complaint and investigation to the extent possible
- Provide that upon conclusion of an investigation, the employer will take appropriate remedial measures if any misconduct is found
- Make clear that employees will not be subjected to retaliation for making a discrimination complaint or participating in an investigation or proceeding related to a discrimination complaint
- Include a statement that third parties, as well as supervisors and co-workers, are prohibited from engaging in unlawful discrimination
Additionally, the Equal Employment Opportunity Commission (EEOC) recommends the following proactive measures designed to avoid inadvertent discrimination:
- Develop a strong Equal Employment Opportunity policy and train managers and employees on its contents
- Carefully analyze the duties and functions required by a particular job position, create job-related qualification standards related to those duties, and consistently apply these qualification standards when making hiring decisions
- Identify and remove barriers to equal employment opportunities, such as word-of-mouth recruiting
- Make promotion criteria clear and transparent
- Be sure that all job openings are communicated to all qualified employees
- Ensure that policies are communicated effectively to all employees when languages other than English are spoken in the workplace