Race Discrimination

Central Coast California Race Discrimination Laws

Race discrimination in the United States is very real.  #BlackLivesMatter exposed police brutality in ways many Americans could never dream. Race discrimination in the workplace is illegal under Title VII of the Civil Rights Act and the California Fair Employment and Housing Act.  Overt racism is fairly rare in California workplaces.  But, it still exists.  It’s just a little more sophisticated, and a little more subtle. 

There are two main laws that prohibit race discrimination in the workplace.  The first is Title VII of the Federal Civil Rights Act of 1964.  The second is the California Fair Employment and Housing Act.     

Title VII

Title VII prohibits an employer from discriminating against you based on your race or color.  Race and color discrimination cases typically fall into two categories: 1) disparate impact and 2) disparate treatment. 

Disparate impact cases are a little different.  They result from a company policy that has a disparate impact upon a whole class of people because of their race or color.  For example, say a company operates in a town where 35% of the population is of a particular race.  Not surprisingly 35% of the applicants for positions are of a particular race.  But, the company requires college degrees even for warehouse workers.  So, even though the company is in a town where 35% of the population is of a particular race, and 35% of the applicants are of a particular race, only 5% of company employees are of a particular race because they don’t qualify under the college degree criteria.  The company’s policy to require a college degree for all positions has a disparate impact on the minority and the company can be liable to the applicants who were otherwise qualified.  Disparate impact cases are difficult to prove since they require statistical analysis.  But, they do not require any discriminatory animus.    

Disparate treatment cases are the ones we all hear about.  They include the obvious like:

·       An employee not getting hired because of his race;  or

·       An employee getting terminated because of her skin color.

But, they also include the less obvious like:

·       Prohibiting an employee from wearing her hair a certain way;

·       Giving an employee a less favorable shift because of his race.    

All races are protected from race discrimination under Title VII.  A person can even sue for race discrimination for associating with a person of another race.  For example, a Court found a white woman was being discriminated against because her husband wasn’t white.    

California’s Fair Employment and Housing Act

Like Title VII, California’s Fair Employment and Housing Act makes it illegal to discriminate against an employee or applicant based on their race or color.  But, the Fair Employment and Housing Act is even more protective than Title VII.  In addition to protecting employees from discrimination on the basis of their race or color, California protects employees who stand against discrimination in the workplace based on race or color. 

California also prohibits harassment based on an employee, or applicant’s race or color.  For example, California prohibits harassment based on race by way of verbal slurs, derogatory comments, physical interference with an employee’s working conditions, demeaning cartoons, or racist propaganda.  All those could violate FEHA’s prohibition on harassment if the harassment is sufficiently severe or pervasive enough to alter the conditions of employment and create an abusive environment.  The conduct just has to be severe or pervasive.  So, constant “jokes” about a person’s skin color could be pervasive enough to create a hostile work environment based on race.  Even one utterance of the word “nigger”, could be severe enough to create a hostile work environment.  Companies are strictly liable for harassment from a supervisor.  But, they’re not liable for the harassment from a co-worker unless they knew about it, and failed to prevent it. 

What do I do if I’m experiencing race discrimination at work?

If you’re experiencing racial discrimination in the workplace, you should notify your supervisor, in writing, keeping a copy of your complaint of discrimination.  If your supervisor is the one discriminating against you, or if it continues, you should complain to human resources, in writing.  The complaint doesn’t have to be something fancy.  “I feel like I’m being discriminated against” or “I feel like I’m being harassed”…“because [insert thing that is happening] (i.e. Joe keeps using the word “wetback” on the jobsite).”  Putting your complaint in writing makes it tougher for the company to deny you ever said anything.  Some companies will retaliate against you for making complaints.  That is illegal.  Unfortunately, it is difficult to prove such retaliation because companies have sophisticated ways of “managing” problem employees out. 

If the company still doesn’t do anything to stop the racial harassment, or discrimination, or retaliation, and you have copies of your complaints, in writing, you should talk to an attorney and/or someone with the Equal Employment Opportunity Commission (“EEOC”) or the Department of Fair Employment and Housing (“DFEH”).  The EEOC, and the DFEH are government entities charged with administering anti-discrimination laws.   

“If there is no struggle, there is no progress. Those who profess to favor freedom, and yet depreciate agitation, are men who want crops without plowing up the ground. They want rain without thunder and lightning. They want the ocean without the awful roar of its many waters. This struggle may be a moral one; or it may be a physical one; or it may be both moral and physical; but it must be a struggle. Power concedes nothing without a demand. It never did and it never will.”  Frederick Douglas

How to Prove Race Discrimination

Most California employers do not say they are discriminating against you because of your race, color, ancestry, or your national origin.  So, it can be hard to prove racial discrimination cases in California.  But, it can be done. 

Evidence of race-based discrimination can include things like:

·       Racial slurs;

·       Racist “jokes” or cartoons;

·       Paraphernalia like swastikas or nooses; and

·       Singing along to racist song lyrics. 

Racial discrimination can also be proved by things like:

·       Preferential treatment for one race over another in the workplace;

·       Derogatory comments about a particular race; and

·       Using racial stereotypes.

Prohibition Against Harassment, and Retaliation

In addition to prohibiting discrimination on the basis of race, ancestry, national origin, and color, California also prohibits harassment in the workplace based on those things.  An employee must show the harassment unreasonably interfered with the employee’s work performance by creating an intimidating, hostile, or offensive work environment.  The employee must show the conduct is sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment.  Teasing, offhand comments, and isolated incidents are not typically enough.  But, a single ethnic slur can be sufficient under the right circumstances. 

In addition to prohibiting discrimination, and harassment, the Fair Employment and Housing Act also prohibits retaliating against an employee if the employee makes complaints about workplace harassment or discrimination based on race, ancestry, national origin, or color, or the employee stands up for someone else making complaints about unlawful harassment or discrimination at work. 

Race Discrimination Class Action Cases

California law prohibits treating individual people differently because of their race, national origin, ancestry, or color.  This is called disparate treatment.  But, California law also prohibits:

·       Disparate impact" or "adverse impact" cases, where the employee proves the employer's facially neutral employment practice has an unfavorable impact on a protected class and is not justified by any claimed business necessity; and

·       Class-wide "pattern and practice" or "systemic disparate treatment" cases, where the employee proves a "pattern or practice" of intentional discrimination against a protected class, typically by showing a statistical disparity between protected class members and comparably qualified members of the majority group, as well as evidence of individual instances of discrimination.

What Can I Recover If I Win My Race Discrimination Lawsuit?

If you can prove your race discrimination case you could be entitled to:

·       Backpay – Back pay is an amount of money to compensate you for all the wages and benefits you lost from the time you were terminated until the time your case is settled or reaches a jury verdict. 

·       Frontpay – Frontpay is an amount of money to compensate you for all the wages and benefits you could have expected to receive from your employer in the future if you were not terminated.

·       Emotional Distress – Emotional Distress is some amount of money to compensate you for the mental pain and suffering you experienced resulting from your harassment, discrimination, retaliation, and/or wrongful termination. 

·       Punitive Damages – Punitive Damages are some amount of money to punish the employer if they engaged in malice, fraud, or oppression when terminating you.

·       Injunctive Relief – Injunctive Relief is typically an order from the Court that your employer must do, or stop doing, something as a result of the lawsuit. 

·       Attorneys’ Fees and Costs – If you win your race, national origin, color, or ancestry discrimination case your employer must pay your reasonable attorneys’ fees and costs.  Most employment lawyers take cases on a contingency fee basis.  That means that most employment lawyers only get paid if they win.  If you settle, most employment lawyers get a percentage of whatever they recover you.  But, if you take the case to trial and you win, the employer must pay for all the time your lawyers put into the case and all the costs your lawyers fronted.

How do I find an attorney to represent me in my race discrimination case?

If you were wrongfully terminated in violation of public policy because your employer discriminated against you because of race, national origin, ancestry, or color, you want quality lawyers who care.  Attorney John McCarthy is nationally recognized as one of the top wrongful termination attorneys in California, and the best race discrimination attorney on the Central Coast. 

He offers a free case evaluation.  The case evaluation form is an integral part of our intake process and every potential new client must fill one out before taking to an attorney here.  Your case evaluation form helps us understand what’s going on with your case and alerts us to issues you might even be aware of.  Your case evaluation form is completely confidential.  It goes straight to Attorney McCarthy’s inbox.  He reviews and responds to every inquiry same business day.  Responses typically schedule a free consultation, refer you to other attorneys who might be able to help, or refer you resources to help you understand your rights, find an attorney, and even represent yourself.  If you’re not comfortable with that, The State Bar of California certifies lawyer referral sources to help Californians find qualified lawyers that best match their needs.  You can check out their website, or call (866) 442-2529.