RACIAL DISCRIMINATION IN THE WORKPLACE
Racial Discrimination in the Workplace
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Racial discrimination is the thorn in the side of these words.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness".
This is what the Declaration of Independence states. Unfortunately, the only truth that has been and is self-evident is all men are not treated equally. Even as the framers were writing those words, many of them had men and women and children in chains back at the plantation.
The disgraceful history of racial discrimination in America has been ongoing for over 500 years. Now in the 21st century the disease of racism still saturates all aspects of society including the workplace. From the early 1990’s thru 2004, the (EEOC) Equal Employment Opportunity Commission reported a 125 percent increase in race discrimination cases. In 2004 the EEOC had almost 28,000 race discrimination claims filed with the agency.
In 2006 over 30 percent of the complaints filed with the EEOC charged race discrimination. This particular type of workplace discrimination has always had the greatest number of complaints. Why? This type of discrimination has always been the biggest problem in American society. The Civil Rights Act of 1964 under Title VII makes it illegal for employers to discriminate against job applicants and employees in these “protected” classes;
- sex or gender
- national origin
The (ADA) Americans with Disabilities Act prevents employers from discriminating against job seekers and employees because of some (mental or physical) disability. The Civil Rights Act 1964 under Title VII does not legally bind small private companies under 15 employees. Nonetheless, some states like California have no limit on the number of employees no matter of more or less.
Racial Discrimination in the Workplace
Under Title VII of the Civil Rights Act of 1964, there are two kinds of declarations.
- Disparate Treatment
- Discrimination is involved when a job seeker or employee in a “protected class” such as race, gender, etc. is the reason for different treatment.
- Disparate Impact
- A “neutral” business practice that creates adverse impact on members of a protected class that is not justified.
An example of Disparate Treatment:
The employee is claiming that the employer treated him differently than other employees who were in the same job description, workplace and situation. Robert and Osaka laid out of work one day; the employer terminated Osaka but retained Robert.
If the reason is because Osaka is oriental it becomes disparate treatment because of his race. Race discrimination is a violation of Title VII of the Civil Rights Act of 1964. A non-discriminatory reason could be Osaka’s terrible record of attendance, which would make the firing legal.
An example of Disparate Impact:
An employee claims the employer has a business practice that impacts one group far more than another. The company requires computer operators it hires to have college degrees. This requirement could impact people of diversity especially black Americans in total. Statistical evidence shows white Americans as a whole have far greater college graduation rates than black Americans as a whole. Academic credential requirements separate far more blacks than it does whites.
Consequently, there is a disparate impact based on race, even though there may be “no intentional discrimination”. I have to add an addendum to that. In my experience as an employee and a mediator of employment issues companies have developed clever and cunning ways to hide racist practices.
One of the heroes of the Civil Rights Act of 1964 that helped shape Title VII was a courageous black man named Percy Green. In 1964, Mr. Green climbed 125 feet up the Gateway Arch in St Louis, Missouri in protest of no employment opportunities for people of diversity. At that time, the Arch was still under construction by the National Park Service. Mr. Green was one of the few blacks’ employed by McDonnell Douglas an aircraft and aerospace company based in St. Louis.
Percy Green’s Gateway Arch protest got national attention and several black general contractors were hired. However, truth always forces hypocrisy out in the open and Mr. Green was terminated from McDonnell Douglas under a guise of “layoff” one month after the Arch climb.
Race Bias in the Workplace
Mr. Green also had about eight years of seniority over the 14 non-diverse (white) male employees who were not “laid off”. One year later Percy Green applied for a McDonnell Douglas position and was more than qualified. Nonetheless, he is denied employment as a result of his protest activities involving his layoff. Mr. Green files a federal suit along with an EEOC complaint. But, it wasn’t until 1973 (the year I graduated from high school) that the U.S. Supreme Court decided Mr. Green’s case.
The Supreme Court ruled that Mr. Green established a "prima facie" case for disparate treatment. Prima facie means "at first sight" or "on the face of it." "Prima facie evidence" is evidence that is good and sufficient on its face.
The Court also judged that McDonnell Douglas had a nondiscriminatory reason for not rehiring Mr. Green. They decided Mr. Green’s involvement in protests of company hiring practices and his layoff, interfered with McDonnell Douglas business operations.
Proving "Disparate Treatment" requires a 3 step process for establishing a prima facie case:
- (1) The employee has to be a member of a protected class.
- (a) Is the employee qualified for the position and not selected?
- (2) Does the employer have a "legitimate and non-discriminatory" reason for not selecting the employee?
- (3) Can the employee prove the employer's reason is untrue or a "pretext" for discrimination?
The prima facie requirement also means the employee has to provide:
- Direct Evidence
- This is the best possible proof because it includes blatant statements, memos and documents made by management aimed at you because of your protected class. For example, a white male manager tells a black female job interviewee, "I know how lazy you people are, but we believe in hard work here at ZXY Inc.
An EEOC case involved several black employees of a company who were out front in the showroom. They were the first employees customers encountered when entering the business. A white male manager made a comment similar to this, "It just doesn't look right for three of them to be out front." Subsequently, all three were reassigned, demoted or terminated from being "out front". When the dust settled this case ended badly for the company.
Prejudice and Discrimination
- Circumstantial Evidence
- The direct method of evidence happens more routinely than some would like to believe. However, my experience shows that companies in collusion with their human resource departments seek to "cover up" instead of "correct" some of the most blatant workplace racial discrimination in America. They can also be well schooled by the attorneys defending them. Nonetheless, in the majority of cases the employee has to use the circumstantial evidence method.
The indirect or circumstantial evidence method involves the three "disparate treatment" steps I mentioned previously;
- protected class (in this case race) and qualified for the job
- employer non-discriminatory reason why adverse action was taken
- employee prove employer lied about true reason for adverse action
The indirect or circumstantial evidence test for racial discrimination can include a pattern of practice on the employer’s part that routinely excludes the protected employee from…
- equitable training that non protected similarly situated co-workers typically receive.
- receiving performance awards for comparable work.
- promotional opportunities with accompanying pay increases.
- workplace celebrations such as birthday, another job or retirement parties that are organized for non protected employees.
- working normal hours that don't create such a hardship that no reasonable employee could manage.
Circumstantial situations of racial discrimination like these are all too common in the American workplace. It is a violation of Title VII when skin colors, hair type and face structure is used to discriminate. Even if every member of a particular race don't have the same features.
Racial harassment in the workplace is in my opinion no different from racial discrimination. However, it is treated as a separate violation under Title VII of the Civil Rights Act of 1964. Federal and state laws do not explicitly define race harassment or make it illegal. Courts have decided that racial harassment is a form of race discrimination that makes it illegal under Title VII.
What is racial harassment? It has some of the same characteristics as sexual harassment. Unwelcome behavior directed towards you because of your race. This includes verbal or physical conduct of a racial nature. This conduct is sufficiently pervasive or severe and creates a hostile, offensive or intimidating work environment. It also interferes with the diverse employee’s work performance.
Some examples of racial harassment include;
- Physical Conduct
- This can be assault, impeding movement, inappropriate contact or touching.
- Visual Posters or Cartoons
- Any displays, drawings, emails, screensavers, logos, nooses, graffiti, pictures, flags(confederate or swastika) of a racial nature.
- Non Verbal Conduct
- These involve racially motivated gestures and facial appearances
- Verbal Conduct
- Ethnic slurs, racist jokes including offending comments about appearance and verbal threats.
Title VII also makes it illegal to request pre-employment information that reveals a job seeker’s race with the suggestion it will be used as a basis for hiring. Petitioning job applicants for this type of information to decide who gets hired. If people of diversity are kept out of the workplace that info would qualify as proof of racial discrimination.
When people of diversity are physically separated or set apart from customer contact or other workers it becomes a violation of Title VII. It is also illegal to only hire blacks or orientals for certain jobs and then to relegate them areas of predominant diversity. Another prohibited practice is job applications and resumes being "flagged" or "coded" to show a job seeker's race is racial discrimination under Title VII when they are excluded from employment opportunities.
Racial Harassment in the Workplace
According to a USA TODAY article from 2-05-08, "Cases of racial harassment filed with the Equal Employment Opportunity Commission increased 24% last year...At the same time, state and city lawmakers have stepped up efforts to make it a crime to intimidate someone with a noose."
EEOC chair Naomi Earp says, "Nooses are more prevalent...The noose has replaced the N-word … as the choice if you want to threaten or intimidate someone.
The number of racial harassment filings at the commission, which investigates workplace incidents, increased from 5,646 in 2006 to 6,977 in 2007. The annual figure has more than doubled since 1991. The EEOC does not break out charges involving nooses."
One thing is clear racial discrimination and harassment in the workplace reflects the larger problem in American society as a whole. If you believe your Civil Rights under Title VII have been violated consulting with a qualified employment law attorney can help you determine your legal options. In the mean time follow this link for more info on proving discrimination
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