WHAT IS RACE DISCRIMINATION?
Federal and most states’ laws prohibit workplace race discrimination. In fact, Title VII — the federal law that prohibits race discrimination — has been on the books for almost 50 years now. But apparently, some employers haven’t gotten the message, because racial discrimination still happens more often than anyone wants to believe. In fact, it is the most common type of discrimination employees report to the Equal Employment Opportunity Commission, the federal agency that enforces Title VII.
Discrimination exacts a very high price, both from its victims and from the companies that allow it to occur. Lawsuits in recent years have proven this point, as large companies have had to pay millions of dollars to compensate the victims of race discrimination and to pay for their own complicity in encouraging or allowing a discriminatory atmosphere to flourish in the workplace.
What Is Race Discrimination?
An employer commits race discrimination when it makes job decisions on the basis of race or when it adopts seemingly neutral job policies that disproportionately affect members of a particular race (more on this below).
Federal and most states’ laws forbid race discrimination in every aspect of employment, including hiring, firing, promotions, compensation, job training, discipline, and termination.
When an employer intentionally singles out applicants or employees of a particular race for less favorable treatment, that is “disparate treatment” discrimination. When an employer applies the same policy or practice to everyone, but the burden falls more heavily on employees of a particular race, that is “disparate impact” discrimination.
Disparate Treatment Discrimination
An employee who makes a disparate treatment claim alleges that he or she was treated differently than other employees who were in similar situations, because of the employee’s race. For example, an employer commits disparate treatment discrimination when it promotes only white employees to supervisory positions, requires only job applicants of a certain race to submit to drug tests, or refuses to allow employees of certain races to deal with customers.
An employer that discriminates on the basis of physical characteristics associated with a particular race — such as hair texture or color, skin color, or facial features — also commits disparate treatment discrimination.
Disparate Impact Discrimination
In a disparate impact lawsuit, the employee does not claim that the employer intentionally singled out employees of a particular race for bad treatment. Instead, the employee claims that the employer’s apparently neutral policy, rule, or practice has a disproportionately negative impact on members of a particular race.
For example, an employment policy requiring men to be clean-shaven may discriminate against African American men, who are more likely to suffer from Pseudofolliculitis barbae (a painful skin condition caused and exacerbated by shaving). A minimum height requirement may screen out disproportionate numbers of Asian American and Latino job applicants. A ban on hiring any applicant with an arrest or conviction record could disproportionately affect Latino and African American men.
If an employee shows that a particular policy has a disproportionate impact on members of a particular race, the employer can defend the policy by showing that there is a legitimate, important, job-related reason that necessitates the policy. For example, a height requirement might be justified if the employer can show that an employee must be at least a certain height to operate a particular type of machinery. However, an employer would be hard-pressed to justify a height requirement for a desk position.
Harassment Is Illegal, Too
Harassment on the basis of race is also prohibited. Harassment is any conduct based on a person’s race that creates an intimidating, hostile, or offensive work environment or interferes with the person’s work performance. Harassing conduct might include racial slurs, jokes about a particular racial group, or physical acts of significance to a certain racial group (for example, hanging or posting an offensive picture or object near an employee’s workspace).
Not every joke or inappropriate remark constitutes harassment, from a legal perspective. Workplace conduct must be unwelcome, and it must be sufficiently severe or pervasive to change the terms and conditions of the victim’s employment, to qualify as harassment. If the conduct is extreme, a single incident might be enough to create a hostile environment. A physical assault, use of “the N word,” or hanging a noose, for example, might be so threatening and insulting as to be harassment. If the comments or acts are less offensive, they will constitute harassment if they happen often enough to change the workplace environment.
Republished with permission © 2014 Nolo.com