The definition of race discrimination is probably broader than you think.  The Equal Employment Opportunity Commission (“EEOC”), the Federal agency charged with enforcing the provisions of Title VII, provides that race discrimination generally encompasses the following:

1. Ancestry: Here, “race” and “national origin” discrimination can overlap. For instance, discrimination against a Japanese American might be directed toward her Asian ancestry, or her Japanese national origin, or both. This individual might have a claim of race discrimination, national origin discrimination, or both.
2. Physical Characteristics: Physical characteristics associated with race may include a person’s color, hair, or facial features. Early cases dealing with hairstyles, namely policies that prohibited Afros, were generally more successful because Court’s considered this hairstyle closer to an immutable characteristic. See Rogers v. American Airlines, 527 F. Supp. 229, 231 (S.D. New York 1981) (recognizing that an employer’s ban against the “Afro/bush” type of hairstyle might constitute a Title VII violation because it would “implicate the policies underlying the prohibition of discrimination on the basis of immutable characteristics.”) ; Jenkins v. Blue Cross Mutual Hosp. Ins., Inc., 538 F.2d 164 (7th Cir. ), denied, 429 U.S. 986 (1976) (allegations of discrimination due to wearing of a natural Afro hairstyle sufficient to make out Title VII race discrimination claim). As discussed below in the “Culture” section, cases centered on policies prohibiting hairstyles like braids and cornrows have generally been unsuccessful because Courts generally do not consider these hairstyles to be linked to an “immutable characteristics.”
3. Race-linked Illness: For example, sickle cell anemia is far more common in individuals of African descent. Native Hawaiians have a disproportionately high incidence of diabetes. If your employer has some policy that disproportionately affects employees with race-linked illnesses, it must show that the policy is based on generally accepted medical criteria.
4. Culture: This can include names, clothing, grooming practices, accents, or manner of speech. If an employee is terminated, demoted, passed over for a promotion, or is not hired because they have a so-called “Hispanic name,” “Asian accent,” or “dressed Black,” that violates Title VII unless the employer can prove that these characteristics materially interfere with the employee’s ability to perform his or her job duties. However, cases involving policies prohibiting cultural hairstyles have not generally been successful for employees because courts have concluded those hairstyles are a choice, not an immutable characteristic like skin tone. See, e.g., Rogers v. American Airlines, Inc., 527 F. Supp. 229, 231 (S.D.N.Y. 1981) (upholding employer’s policy against braided hair—“In any event, an all-braided hairstyle is a different matter. It is not the product of natural hair growth but an artifice. An all-braided hair style is an ‘easily changed characteristic,’ and, even if socioculturally associated with a particular race or nationality, it is not an impermissible basis for distinctions in the application of employment practices by an employer.”); Pitts v. Wild Adventures, Inc., 2008 WL 1899306, at *6 (M.D. Ga. 2008)(“In this case, Plaintiff argues that Defendant’s grooming policy is racially discriminatory because it prohibits ‘Afro-centric hairstyles’ such as dreadlocks and cornrows. Plaintiff’s argument is without merit. Section 1981 prohibits discrimination on the basis of the immutable characteristics of race. Dreadlocks and cornrows are not immutable characteristics, and an employer policy prohibiting these hairstyles does not implicate a fundamental right. The fact that the hairstyle might be predominantly worn by a particular protected group is not sufficient to bring the grooming policy within the scope of §1981’s prohibitions. Moreover, Plaintiff has not argued that the policy was applied in a racially discriminatory manner. On its face, the policy applies to all races, and there is no evidence that the policy was only enforced against African-Americans. As a result, Defendant is entitled to summary judgment on Plaintiff’s disparate treatment claim related to the grooming policy.”).
5. Perception: If your employer “perceives” you as a racial minority, even if you do not identify as a racial minority, this can be the basis for a race discrimination claim. For instance, if you are a mixed-race individual who identifies as white, but your employer perceives you as black and discriminates against you, you may have a race discrimination claim. See EEOC Compliance Manual, Section 15: Race & Color Discrimination §15-II (“Title VII’s prohibition of race discrimination generally encompasses: … Employment discrimination against an individual based on a belief that the individual is a member of a particular racial group, regardless of how the individual identifies himself. Discrimination against an individual based on a perception of his or her race violates Title VII even if that perception is wrong.”)Est. of Amos ex rel. Amos v. City of Page, Arizona, 257 F.3d 1086, 1094 (9th Cir. 2001) (“That [the plaintiff] was actually white does not make that discrimination or its resulting injury less direct. Thus, for purposes of standing, [the plaintiff] should be viewed as [he] alleges the police officers viewed him: as a Native American. The City’s alleged discrimination is no less malevolent because it was based upon an erroneous assumption.”). [HYPERLINK: https://casetext.com/case/amos-v-united-states-10]
6. Association: Sometimes interracial marriages, multiracial children, or even interracial friendships or associations are the basis for race discrimination. Many cases have dealt with this issue and found that discrimination on these bases violates Title VII.  See Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994-95 (6th Cir. 1999) (holding that it is a violation of Title VII for an employer to discriminate against a Caucasian employee because he has a bi-racial child); Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987) (recognizing that employer’s differential treatment of a Caucasian woman because she was married to an African-American could constitute a Title VII violation);  Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir. 2009) (“Here, Plaintiffs are not members of the protected class but claim they were discriminated against because they were friends with and spoke out on behalf of their African-American co-workers. Title VII forbids discrimination on the basis of association with … a protected party.”).
7. Subgroup or “Race Plus”: Oftentimes employers will try to prove that they do not discriminate against employees of a certain race by pointing to a sucessful employee of that race. For instance, the employer may argue that they could not possibly discriminate on the basis of race because they promoted Bob (an African-American) just last month.  In these instances, it may be helpful to point out that the discrimination was only directed at a subset of individuals of a certain race.  For instance, discrimination was directed towards only African-American men, or only African-American Christians, as opposed to all African-Americans.  This “race-plus” theory has been repeatedly successful in Courts.  See, e.g., Jefferies v. Harris County Cmty. Action Ass’n, 615 F.2d 1025, 1032-33 (5th Cir. 1980)(recognizing that African-American women may be able to state a claim even in the absence of discrimination against African-American men or white women); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 118 (2d Cir.2004) (“The term ‘sex plus’ or ‘gender plus’ is simply a heuristic. It is, in other words, a judicial convenience developed in the context of Title VII to affirm that plaintiffs can, under certain circumstances, survive summary judgment even when not all members of a disfavored class are discriminated against.”)(footnote omitted).

See EEOC Compliance Manual, Section 15: Race & Color Discrimination §15-II.

Are you the victim of race discrimination?  Cantrell Astbury Kranz, P.A., litigate high-value, high-impact race discrimination, harassment, and retaliation matters (AKA “wrongful termination”) in California, Florida, Michigan, Georgia and Illinois.  For a free consultation with one of our attorneys about your race discrimination case, contact us at (877) 858-6868 or coordinator@caklegal.com.

The first and most commonly used method of proof is the indirect method of proof.  The indirect method is the most common method because racial discrimination in the workplace is more subtle than it was a generation ago so direct evidence of discrimination (outlined below) is far more rare today. The indirect method is a three-step, burden-shifting approach to proving race discrimination.

Step 1: The employee must first establish a prima facie case of discrimination, which involves proving four elements:

1. The employee was qualified for the position;
2. The employee was subject to an adverse employment action (usually termination, but also demotions, failures to promote, failures to hire, pay decreases, and material changes to the terms and conditions of your employment);
3. The employee was member of a racial minority; and
4. The adverse employment action occurred under circumstances that raise a reasonable inference that the individuals race was a determining factor in the decision.

See e.g, Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482 (6th Cir. 2011) (Though this is a disability discrimination case the elements are the same).

Step 2: After the employee establishes a prima facie case of discrimination, the employer must “articulate some legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 793. 802 (1973). This is a burden of production, not persuasion, meaning the employer only needs to produce evidence of a “legitimate, nondiscriminatory reason” for termination, it does not need to persuade the Court that the reason is true.  Common “legitimate, nondiscriminatory reasons” for termination include poor performance, attendance, insubordination, and violations of company policy.

Step 3: After the employer puts forth its “legitimate, nondiscriminatory reason” for termination, the burden of persuasion shifts back to the employee to show that the employer’s proffered reason for termination is a pretext (not the real reason), but that the real reason for termination is unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. at 804. The most common ways to prove pretext are:

• The employer’s reason for termination is false;
• The employer offered inconsistent or conflicting explanations for the employee’s termination;
• The employer’s reason for termination Is weak, implausible or incoherent;
• The employer offered shifting reason for termination;
• The employer’s reason for termination, while true, did not, or could not have, actually motivated the decision;
• The absence of corroborating documentation for the employee’s termination;
• The employer failed to advise the employee of the purported performance deficiency;
• The reason for termination reflects subjective criticism of the employee’s performance;
• The reason for termination contains euphemisms to disguise the employer’s bias;
• Pretext stemming from the employee’s superior qualifications;
• Pretext stemming from how the employee was treated compared to other employees;
• Pretext stemming from the employer’s failure to follow its own policies and/or
  procedures when terminating the employee;
• Pretext stemming from statistics;
• Pretext stemming from other employer conduct;
• Revisionist history of how the employer regarded the employee’s performance;
• Corporate culture tolerating bias;
• Excluding the employee from relevant meetings prior to their termination;
• Decisionmakers use of discriminatory slurs.

If the employee proves their case through indirect evidence, that does not make it any less convincing than a case proven with direct evidence.  In fact, the Supreme Court has stated that circumstantial evidence may be just as probative, if not more so, than direct evidence. Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 2154 (2003) (“The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying, and persuasive than direct evidence.’”)

The second method of proof is the mixed-motives method of proof.  Here, the employee shows that the employer considered both an illegal factor (e.g., race) and one or more legitimate factors (e.g., poor performance) when it terminated the employee. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775 (1989). This method is easier than the indirect method of proof because race does not need to be a “but for” factor; race can be one of many factors in the employees termination.

The main drawback to this method is that the employer will gain an additional affirmative defense that can prevent the employee from getting any money damages.  Specifically, if the employer can prove that the same employment decision (e.g. termination) would have been made even in the absence of the illegal factor (e.g. race), then the employee is only entitled to declaratory relief, injunctive relief, and their attorney’s fees and costs.  42 U.S.C. §2000e-5(g)(2)(B). In other words, the employee wins the case, but receives no financial compensation, just a declaration from the Court that their employer discriminated against them and a Court order preventing their former employer from discriminating against other employees in the future.

The third method of proof, is the use of “direct evidence” of race discrimination.  Almost all Circuit Courts of Appeal begin with the same definition of direct evidence: Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption. Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 662 (9th Cir. 2002).

Generally, “direct evidence” is akin to a confession from the decisionmaker (e.g. the supervisor who decided to terminate your employment) that they terminated the employee’s employment because of their race. Obviously, this is exceptionally rare. Courts differentiate between “direct evidence” and “stray remarks,” which are defined as: (1) discriminatory comments by non-decision-makers; and (2) discriminatory statements by decision-makers that are unrelated to the decisional process itself. Price Waterhouse, 490 U.S. at 277, 109 S.Ct. at 1804-1805 (1989) (O’Connor, J., concurring). For more information on wrongful termination cases, including race discrimination, harassment, and retaliation cases, please see our general discrimination, harassment, and retaliation page.

Are you the victim of race discrimination?  Cantrell Astbury Kranz, P.A., litigate high-value, high-impact race discrimination, harassment, and retaliation matters (AKA “wrongful termination”) in California, Florida, Michigan, Georgia and Illinois.  For a free consultation with one of our attorneys about your race discrimination case, contact us at (877) 858-6868 or coordinator@caklegal.com.

Some people think that hostile work environment claims are limited to sexual harassment.  However, if you experience a hostile work environment because you belong to any protected category, including your race, you may have a valid hostile work environment case.  See EEOC Compliance Manual, §15-VII.A, The harasser may be your supervisor, coworker, or even non-employees like customers or employees of other  companies your employer does business with. See EEOC Compliance Manual, §15-VII.A,

The EEOC provides a non-exhaustive list of conduct that may create a racially hostile work environment, including:

1. Offensive jokes;
2. Racial slurs;
3. Racial epithets or name calling;
4. Physical assaults;
5. Threats or intimidation;
6. Ridicule or mockery;
7. Racial insults or put-downs;
8. Offensive objects or pictures in the workplace;
9. Other conduct that interferes with work performance;
10. Incidents of racial harassment directed at other employees.

See EEOC Compliance Manual, §15-VII.A

While the conduct need not be explicitly racial in nature, race must be a reason that the work environment is hostile.

Are you the victim of race discrimination?  Cantrell Astbury Kranz, P.A., litigate high-value, high-impact race discrimination, harassment, and retaliation matters (AKA “wrongful termination”) in California, Florida, Michigan, Georgia and Illinois.  For a free consultation with one of our attorneys about your race discrimination case, contact us at (877) 858-6868 or coordinator@caklegal.com.

There are two essential element to a racial hostile work environment claim:

1. The conduct must be unwelcome; and
2. The conduct must be sufficiently severe or pervasive to alter the terms and conditions of employment in the mind of the victim and from the perspective of a reasonable person in the victim’s position.

See EEOC Compliance Manual, §15-VII.A

Regarding the first element, conduct is “unwelcome” if the alleged victim did not solicit or incite the conduct and regarded it as undesirable or offensive. Usually, unwelcomeness is not an issue in these cases.  This is true even if harasser and victim are of the same race.

The most common way this element is challenged is when an employer tries to argue that the alleged victim was an active participant in the ”unwelcome conduct.”  For example, the employer might argue that the victim herself made racially insensitive jokes or insults directed towards other employees. 

Regarding the second element, the Supreme Court famously stated that Title VII is not “a general civility code,” and that conduct—even conduct based exclusively on race—is not illegal just because it is uncomfortable, or inappropriate. Oncale v. Sundower Offshore Svcs., Inc. 523 U.S. 75 (1998). When evaluating whether conduct is “severe or pervasive,” the Supreme Court outlined several factors, none of which are dispositive by themselves:

1. The frequency of the discriminatory conduct;
2. The severity of the conduct;
3. Whether the conduct was physically threatening or humiliating;
4. Whether it unreasonably interfered with the employee’s work performance; and
5. The context in which the harassment occurred, as well as any other relevant factor.

Harris v. Forklift Systems, Inc. 510 U.S. 17 (1993)

Crucially, the standard is severe OR pervasive (reocccuring).  The more severe the harassment, the less pervasive it needs to be, and vice versa.  You can think of it like currency.  You can make a dollar (prove a racially hostile work environment) with 100 pennies (less severe incidents that occur often), 10 dimes (slighly more severe incidents that occur slighly less often), four quarters (moderately severe incidents that occur infrequently), or with a dollar bill (a very severe incident that occurs only once). 

When relying more heaviliy on “severe” conduct, a single incident of offensive racial conduct will rarely be enough to prove a hostile work environment claim.  However, if that single incident is extremely “severe”—e.g. an actual or depicted noose, a favorable reference to the Ku Klux Klan, an unambiguous racial epithet such as the “N-word,” or a racial comparison to an animal—that single incident alone may be severe enough to constitute a hostile work environment.

When relying more heavily on conduct that is less severe, but more “pervasive” to prove a racially hositle work environment, there is no magic threshold of harassing incidents that create a “hostile work environment.”  Daily or weekly incidents will almost certainly be sufficient.  Two or even three non-severe incidents over the course of several years will almost certainly be insufficient.

The EEOC Compliance Manual provides detailed examples of sufficiently severe and/or pervasive conduct, and conduct that does not meet this standard.

• Example of Sufficiently Severe Conduct. Tim, an African American, is an employee at an auto parts manufacturing plant. After a racially charged dispute with a White coworker, the coworker told Tim: “Watch your back, boy!” The next day, a hangman’s noose, reminiscent of those historically used for racially motivated lynchings, appeared above Tim’s locker. Given the violently threatening racial nature of this symbol and the context, this incident would be enough to alter Tim’s working conditions.
• Example of Sufficiently Pervasive Conduct. Miyuki, of Japanese descent, gets a job as a clerk in a large general merchandise store. After her first day on the job, a small group of young male coworkers starts making fun of her when they see her by slanting their eyes, or performing Karate chops in the air, or intentionally mispronouncing her name. This occurs many times during her first month on the job. This is pervasive harassment because of race and/or national origin.
• Example of Conduct Not Sufficiently Severe or Pervasive. Steven, an African American, is a librarian at a public library. Steven approaches his supervisor, White, with the idea of creating a section in the stacks devoted to books of interest particularly to African Americans, similar to those he has seen in major bookstore chains. Steven’s supervisor rejects the idea out of hand, stating that he does not want to create a “ghetto corner” in the library. This statement alone, while racially offensive, does not constitute severe or pervasive racial harassment, absent more frequent or egregious incidents.
• Example of Sufficiently Severe or Pervasive Conduct. Patrick, Caucasian, is a new employee in a company owned by an African American. All of the employees in Patrick’s department, including his manager, also happen to be African American. Patrick’s manager was pressured to hire Patrick because his father is a friend of a company executive.

On Patrick’s first day on the job, the manager said to him, “This is a Black company. Whiteboys like you might get all the breaks in your world, but not here. Your daddy got you this job, but he can’t do it for you.” Although Patrick made every effort to prove himself, he was unable to do so because over the course of the next six months the manager subjected him to a pattern of mistreatment.

For example, the manager would assign Patrick the majority of the uninteresting and routine work, and would set artificial and unrealistic deadlines. The manager would yell at Patrick when he made a mistake due to having to rush. The manager also frequently failed to inform Patrick of important meetings, or ignored Patrick when he spoke at meetings he did attend. Once the manager asked Patrick to get him a cup of coffee—a task not part of his job, and which no one else ever was asked to do—and said to him, “By the way, as you’ve probably guessed, I like my coffee black.”

In contrast to the manager’s treatment of Patrick, the manager assigned Patrick’s coworkers—all African American—challenging assignments, provided them with coaching and training, and often extended their work deadlines. The totality of the evidence supports the conclusion that Patrick suffered from race-based harassment sufficient to alter his working conditions.

• Example of Sufficiently Severe or Pervasive Conduct. Kyra is a newly hired programmer at a computer software development company. She is the first African American, and the first woman, to be hired by the company. All of the other employees are White or Asian American men. During her first few weeks on the job, several employees made insensitive comments to her. For example, one of her coworkers told her, “You’re so articulate for a Black person.” Kyra also overheard a conversation between a group of coworkers in which one said, “I didn’t know Oprah could write code,” to which the group responded with laughter. Her team leader said to her, “I know you got this job because you’re a ‘twofer’ under our new affirmative action program, but you won’t get any breaks here.”

Over her first few weeks, Kyra learned that the team leader held her to more exacting standards than her newly hired White and Asian American counterparts. While normally each programer’s work was reviewed once by management to look for bugs—a process the company called “code review”—the computer code Kyra wrote was put to an extra round of code review, without any evidence that it was warranted. After the first project Kyra was assigned to work on was complete, Kyra had trouble getting assigned to another project because other team leaders incorrectly assumed that Kyra’s work was substandard.

When she raised the issue with management, she was told that the company had always had a word-of-mouth assignment system, and she needed to learn how to “play with the boys.” The evidence supports the conclusion that Kyra was subjected to a hostile work environment because of her race, sex, or the intersection of both, in light of the pattern of offensive comments and evidence that the bias altered the terms and conditions of Kyra’s employment.

See EEOC Compliance Manual, §15-VII.A, Examples 15-19

For more information on wrongful termination cases, including race discrimination, harassment, and retaliation cases, please see our general discrimination, harassment, and retaliation page.

Have you been subject to workplace race discrimination?  Cantrell Astbury Kranz, P.A., litigate high-value, high-impact race discrimination, harassment, and retaliation matters (AKA “wrongful termination”) in California, Florida, Michigan, Georgia and Illinois.  For a free consultation with one of our attorneys about your race discrimination case, contact us at (877) 858-6868 or coordinator@caklegal.com.

The first category of damages is lost wages. There are two categories of lost wages:

1. Back pay—lost wages and lost benefits—like annual leave, sick leave, health insurance, and retirement contributions—from the time of termination through the end of trial; and
2. Front pay—lost wages and lost benefits from the time of trial onward.

The second category of damages is compensatory damages, which are often referred to as pain and suffering. The EEOC considers the following categories:

1. Emotional pain and suffering
2. Inconvenience
3. Mental anguish
4. Loss of enjoyment of life
5. Injury to professional standing
6. Injury to character or reputation
7. Injury to credit standing
8. Loss of health
9. Fright
10. Shock
11. Humiliation
12. Indignity
13. Apprehension
14. Marital strain
15. Loss of self-esteem
16. Anxiety
17. Depression
18. Loss of respect of one’s friends and family
19. Isolation 

Obviously, different people will assign different values to each of these categories, and it takes a skilled trial attorney to maximize the value a jury assigns to each category.

The third category of damages is punitive damages, which are awarded to punish bad behavior.  Importantly, these damages are severely capped under Title VII (the federal anti-discrimination law) but are uncapped under many state laws. 

For instance, under California’s Fair Employment and Housing Act (FEHA) (California’s state anti-discrimination law), punitive and compensatory damages are uncapped. To highlight the difference, if a jury returns a verdict awarding $1,000,000 in punitive damages, that verdict will be reduced to somewhere between $50,000 and $300,000 under Title VII, but a plaintiff can likely keep the entire $1,000,000 punitive damages award under the FEHA.

Are you the victim of race discrimination, harassment, or retaliation?  Cantrell Astbury Kranz, P.A. handle high-value, high-impact race discrimination, harassment, and retaliation matters (AKA “wrongful termination”) in California, Florida, Michigan, Georgia, and Illinois.  For a free consultation with one of our attorneys about your race discrimination case, contact us at (877) 858-6868 or coordinator@caklegal.com.