Race discrimination, like other types of discrimination, can take many different forms.
Victims of race discrimination in the workplace often come to us stating that they have repeatedly complained to a supervisor about inappropriate racial comments from co-workers, yet nothing has changed despite their complaint.
Or, they will tell us that their supervisor has been making inappropriate comments about their race or national origin, in front of co-workers, thus demeaning them and ensuring a lack of respect from those other co-workers.
Title VII of the Civil Rights Act protects employees from discrimination in hiring, firing, or day to day work life, based upon race. This applies to all employers with 15 or more employees.
The New York State Human Rights Law also protects employees in New York State from discrimination based on race, and covers all employers in New York with 4 or more employees.
Race discrimination in the workplace generally ends one of two ways: Either the employee is fired – sometimes after making a complaint about a racially inappropriate comment, sometimes after a new supervisor comes into the picture; or the employee resigns – often after being subjected to several inappropriate comments, making complaints to supervisors, and being no longer able to take the abuse. This is called a constructive discharge (link), and it happens when the employee works in a hostile work environment (link) without any improvement.
In order to be able to establish a claim for race discrimination, the individual/victim must meet certain legal elements: First, the former employee must show that he was a member of a protected class (i.e. race); Second, he must show that he was “otherwise qualified” for the job – in other words that he did not have any generally disqualifying reasons to not ; Third, the victim must show that he was fired under circumstances giving rise to “an inference” of discrimination – in other words, he was not fired for skipping work, theft, terrible performance or some other reason; and finally, he must show that he suffered damages as a result.
The “Legitimate, Non-Discriminatory Reason”
If a claim for race discrimination in New York is going to succeed, the victim must be able to get past the employer's legitimate, non-discriminatory reason (link) for its action.
The legitimate, non-discriminatory reason is the reason that the employer gives for having fired the employee (or taken other action against him). Don't be mistaken – employers ALWAYS come up with a “legitimate” reason for the action, regardless of whether it is true.
Often the “legitimate” reason for the termination is the employee's “job performance”. This can be tricky, and as the former employee you may initially be shocked by the claim that you were a poor employee.
In nearly every discrimination lawsuit (link) the employer claims that the Plaintiff (link) was a poor employee – we tend to refer to this as the “poor employee defense” (link), and because we see it so often we are prepared to handle it.
As the victim of discrimination, it is important for you to be able to show that the “facts” relied on by your former employer to show that you were a poor employee are wrong. How do you do this? Through a combination of testimony and documents.
First, you must be able to show that the criticism that is not being made against you was never made while you were an employee – before you accused them of discrimination.
Second, you must be able to show that other employees were not treated the same way – in other words that “similarly situated” employees of other races did the same or very similar things at work and were not criticized.
And finally, it's always helpful to show that the concerns about your job performance were simply overstated and were not actual concerns.
The “stray comment”, or “joke”.
Employers often attempt to downplay or minimize the types of illegal behavior that ends up getting them sued, claiming that remarks were “stray comments” or made in a “joking” manner. This, of course, is rarely the case.
Instead, in our experience there are simply two types of workplaces: those where racially inappropriate comments occur and are tolerated, and those where they are not. But it does not always reach the level of the boss, instead often we see racist comments limited to a certain department or division of a company (the shipping or packing division, for example), where a supervisor is either responsible for the racist behavior, or simply tolerates it from his subordinates.
Unfortunately, the law does sometimes protect the “stray comment” in the workplace, in and of itself. Instead, the former employee who is trying to prove that she suffered a “constructive discharge” because of a “hostile work environment” must show that she was subjected to several severely inappropriate comments, that she made complaints to the appropriate parties, and that the behavior continued despite those complaints.
Big companies often fail to understand the impact of such actions can be severe on the victims. Too often clients have come to us because they have felt like they had nowhere else to turn, and their complaints were simply being laughed off.
It is very important to keep in mind that if you make a legitimate complaint about discrimination – in the right way (link), the law protects you from being retaliated against by your employer. Practically, this means that if you tell your employer that you have been hearing racist or inappropriate comments, or that your supervisor has been targeting you because of your race, your employer not only has an obligation to investigate (link) the allegations, but also has a legal obligation to ensure that you are not targeted because of or in response to your complaint. If this happens you may have a claim for retaliation in addition to your claim for discrimination.
The Race Discrimination Lawsuit Process
Title VII requires that a victim of race discrimination first file a complaint with the EEOC (link), before filing any sort of complaint in federal court (link). To learn more about this process, click here (link), but this essentially means that you will be required to file your claim and wait for approximately six months while the EEOC investigates the case.
Eventually the case will (in the clear majority of cases) be removed from the EEOC and you will have your chance to file your complaint in court. For more about the process in court click here (link).
The New York Human Rights Law does not have the same requirements as the EEOC. In fact, under the Human Rights Law you can either make your claims with the NYS Division of Human Rights or file a lawsuit in court. This technical difference – between Title VII and the NYS Human Rights Law – can be confusing and troublesome to discrimination victims, and requires to careful navigating to ensure that you can ultimately pursue claims under both laws in federal court (link).
Most New York race discrimination claims do not go to trial (link). Instead, they are resolved in several different ways, the most common being settlement or dismissal.
Federal court in the Northern District of New York has a “mandatory mediation” program (link), which requires both parties to the lawsuit to participate in non-binding mediation, to try and settle or resolve the lawsuit early on. This is often, but certainly not always, successful.
Some cases are unfortunately dismissed, for several reasons. To learn more about some of these reasons click here (link).
If you have questions about race discrimination in New York contact us today.