Racial Discrimination

Discrimination in Employment

Discrimination in the workplace, based on race, color, ethnicity and/or national origin is prohibited under both California and federal law. Racial discrimination is prohibited in all employment practices including: advertisements for positions or work programs, applications and interviews, hiring, transferring, promoting or leaving a job and/or working conditions. Racial discrimination in the workplace is illegal when such actions are taken in respect to the "terms or conditions of employment." "Terms or conditions of employment" is virtually anything relating to a job: rate of pay, title, position, team role, hours, vacations, etc. Hiring or firing is also a term or condition of employment.

Employment race discrimination in the workplace based on association with people of a particular race is also prohibited. An employer may not fire a white employee because he has African American friends, or was dating a black woman. If it did so, the employee would have a discrimination suit, whether or not the employer is prejudiced against whites.

It is also illegal to discriminate on the basis of "color." For example, just as in the famous Spike Lee movie, School Daze (1988), discrimination based on whether someone is "dark-skinned" or "light-skinned" is illegal, simply put, illegal.

There are two types of racial discrimination in the workplace. The more obvious form is "disparate treatment" and the second is "disparate impact."

According to the EEOC , the Supreme Court first described the federal disparate impact theory in 1971, in Griggs v. Duke Power Co. (1971) 401 U.S. 424, 431-2: Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability." In 1989, the Supreme Court reduced the defendant's burden of proving business necessity to a burden of producing evidence of business justification. Wards Cove Packing Co. v. Antonio (1989) 490 U.S. 642, 657. However, the Civil Rights Act of 1991 overturned that portion of the Wards Cove decision. Examples of practices that may be subject to a disparate impact challenge include written tests, height and weight requirements, educational requirements, and subjective procedures, such as interviews. State law will vary. Please consult an attorney.

"Disparate treatment" is more obvious because it is what we all recognize as classical discrimination. It is when a person is treated differently because of their race, ethnicity, etc. Race discrimination may be proven through direct evidence or circumstantial (indirect) evidence, as both are treated equally in the eyes of the law. In state cases in California, juries are usually instructed as follows regarding direct versus indirect evidence:

Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someone's opinion. Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as "circumstantial evidence." In either instance, the witness's testimony is evidence that a jet plane flew across the sky. As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You may choose to believe or disbelieve either kind. Whether it is direct or indirect, you should give every piece of evidence whatever weight you think it deserves. (CACI 202).

However, from a practical standpoint, many people, and perhaps certain jurors, may give greater weight to direct evidence even though they are not supposed to do so.

"Disparate impact" discrimination is more difficult to define and oftentimes, such discrimination is also more difficult to identify unless you are specifically looking for it. A "disparate impact" occurs when a policy of the employer results in benefits to one class of employees but not the other or excludes certain individuals from a job benefit or promotion. It can also be a policy which results in detriment to a protected class of employees as well. Usually, it appears that the given policy is not manifestly designed to create such a benefit or detriment; it merely has that effect. Such cases are complex and usually require statistical evidence as the primary form of proof. For more on disparate impact cases, consult an attorney.