Race Discrimination

Title VII of the Civil Rights Act of 1964, as well as state and local laws, prohibit an employer from discriminating against an employee because of that employee’s race. An employer may not give an employee less favorable treatment, fewer job or promotional opportunities, or terminate or refuse to hire an employee because of that employee’s race. Additionally, an employer may not adopt policies that disproportionately impact members of a particular race unless the employer can demonstrate that there is a legitimate business necessity for such policies.

 

Federal law, dating back to the Civil Rights Act of 1866, also specifically protects against discrimination in the making and enforcement of employment contracts. This law, known as Section 1981, can provide for greater compensation than other non-discrimination laws such as Title VII.

All of the protections discussed below apply equally against discrimination on the basis of skin color as they do to race. If you believe you have been a victim of race discrimination, it is important that you understand your rights.

I. What Does The Law Prohibit?

Federal, state, and local laws forbid employers from discriminating based on race with respect to all terms and conditions of their employment, which include hiring, compensation, promotion, treatment on the job, and termination. These laws also prevent also prevent employers from making employment decisions based on stereotypes or assumptions about the abilities, traits, or performance capability of an individual.

a.  Disparate Treatment Discrimination

The law prohibits an employer from deliberately treating employees less favorably because of their race. This type of disparate treatment may be in the form of adverse employment actions such as refusing to hire, refusing to provide training, denying promotions, denying equal compensation and benefits, disciplining, and firing.

It is also illegal for an employer to subject an employee or allow an employee to be subjected to harassment because of that employee’s race. Harassment based on race is any conduct that interferes with a person’s work performance, negatively affects a person’s employment opportunities, or creates an intimidating, hostile, or offensive work environment. Racist jokes, name-calling, threats, and other forms of mistreatment towards an employee because of his or her race are illegal if the behavior is so severe and pervasive that it changes the terms or conditions of a person’s employment.

Finally, federal law specifically prohibits disparate treatment on the basis of race in the making and enforcement of employment contracts. Though this law, Section 1981, only applies to racial discrimination, courts have interpreted it to apply to certain categories of nationality or ethnicity as well.

b. Disparate Impact Discrimination

“Disparate Impact” discrimination occurs when an apparently objective policy has a disproportionately negative effect on members of one race, and the employer is unable to show that the policy is job-related and justified by business necessity. Title VII allows legal claims challenging employer policies or actions that have a disparate impact based on race. Section 1981, the law that covers race discrimination in employment contracts, requires an employee to prove disparate treatment, and does not allow for disparate impact as the basis for a claim.

c. Retaliation

Federal, state, and local laws also prohibit retaliation against employees who oppose religious discrimination (such as by filing internal complaints, filing a charge with the Equal Employment Opportunity Commission, etc.). Retaliation may take any of the forms above, as well as any action which could dissuade a reasonable employee from making or supporting a charge of discrimination.

II. Title VII

a. Which employers are covered?

Title VII applies to employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, including private employers, state and local government employers. 42 U.S.C. § 2000e(b). It also applies to labor organizations and employment agencies, 42 U.S.C. § 200e-2(b)-(d), and to the federal government, 42 U.S.C. § 2000e-16, although there are different procedures for a federal employee to pursue a discrimination claim. Even if your employer employs fewer than 15 employees, it may be considered a covered employer under Title VII if it has acted jointly with a parent or subsidiary corporation, and together the employees number more than 15; to determine whether the companies have acted jointly, a court would focus on factors such as the degree of interrelationship, degree of common ownership, control, and management, and degree of centralization of personnel functions. See, e.g., Nesbit v. Gears United, Inc., 347 F.3d 72, 84 (3d Cir. 2003) (describing factors).

b. What remedies are available?

If a court finds you have been discriminated or retaliated against in violation of Title VII, you may be entitled to remedies including:

  • Reinstatement, compelled hiring, or compelled promotion
  • Back pay
  • Front pay
  • Retroactive seniority and benefits
  • Compensatory and punitive damages (punitive damages not available against government employers)
  • Attorneys’ fees

c.  How do I vindicate my rights?

Non-Federal Employees

You must file a charge with the EEOC in order to seek a legal remedy for racial discrimination or retaliation that violated Title VII. You must file your charge within 180 days from the date of the alleged violation in order to protect your ability to vindicate your rights under Title VII. 42 U.S.C. § 2000e-5(e)(1). If you live in a state that has a state law prohibiting race discrimination, however, this 180-day filing deadline is extended to 300 days or 30 days after you have received notice of termination of state proceedings if that date is earlier, because you are required to file a charge with the appropriate agency in your state. Id.

The EEOC or your state or local agency will investigate your charge of discrimination, and if it determines your charge has merit, it will attempt to foster conciliation between you and the employer. However, most EEOC field offices do not have the capacity to act on most complaints in a timely manner. Regardless of the EEOC’s determination, you may bring a civil action in court after 90 days have passed since you filed your charge by requesting a “right-to-sue” letter from the EEOC.  See 29 C.F.R. § 1601.28(e).

Federal Employees

If you are a federal employee, you must first initiate a complaint by contacting your employing agency’s EEO counselor within 45 days of the alleged violation. If the complaint the complaint cannot be resolved informally, you must file a formal written complaint with the agency that discriminated against you within 15 days of the notice of the EEO counselor’s failure to resolve the matter. 29 C.F.R. §§ 1614.105(a)(1), .106(b). The agency investigation must be completed within 180 days of the date the complaint or its last amendment was filed, or within 360 days of the date the original complaint was filed, whichever is earlier. 29 C.F.R. §1614.108. A court action must be filed within 90 days of receipt of notice of final action on the formal written complaint. 42 U.S.C. §2000e-16(c).

III. Section 1981

a. Which employers are covered?

All private employers, regardless of size, are covered by Section 1981’s prohibition against racial discrimination in contracts. In addition, individuals (such as supervisors) as well as business entities can be sued under Section 1981.

b. What remedies are available?

If a court finds you have been discriminated against in violation of Section 1981, you may be entitled to remedies including:

  • Back pay
  • Front pay
  • Compensatory and punitive damages

Unlike other non-discrimination laws, including Title VII, Section 1981 does not cap the types of damages listed above.

c.  How do I vindicate my rights?

You must file a claim in federal court within 4 years for conduct that occurred within the employment relationship. For conduct that took place before the employment relationship, such as discriminatory failure to hire, courts usually borrow from the relevant state personal injury statutes of limitation, which tend to have a 2-3 year period in which a claim can be filed. Unlike Title VII, employees are not required to first go through an administrative agency such as the EEOC.

IV. State And Local Laws

In addition to Title VII, employees may also be protected under state laws that forbid race discrimination. The specifics of these statutes vary from state to state, but in some cases plaintiffs may be able to pursue claims for damages and other relief under these statutes in addition to those provided by Title VII. For example, the language of the District of Columbia Human Rights Act (“DCHRA”) is almost identical to that of Title VII, but this D.C. anti-discrimination law does not include a cap on damages or a requirement that the employee first file an administrative complaint. The DCHRA also allows for liability against individuals, such as supervisors. The Virginia Human Rights Act, meanwhile, applies to small businesses that may not be covered under Title VII. Several counties in Maryland also enforce statutes similar to Title VII. An attorney who is familiar with local laws can help you decide under which statutes — state or federal — you should file your complaint.

The attorneys at Katz, Marshall & Banks have a long history of successfully representing clients in race discrimination, harassment and retaliation cases, and we are nationally recognized as experts in the field. If you believe that you have been subjected to illegal race discrimination, contact the experienced lawyers at Katz, Marshall & Banks, LLP for an evaluation of your case with no further obligation.