Racial discrimination in America has persisted in big and small ways despite federal and state laws enacted to combat it. In fact, as recently as 2021, a study by Gallup, the company well-known for its political polls, found that a quarter of African American and Latino workers reported being discriminated against at work during the previous year. The issue is less about what’s written in the law than what’s been imprinted deep inside the heart of certain individuals. While racial discrimination in the workplace, unfortunately, remains a problem, our laws provide a way for workers to fight back.
In this Guide
- What is Racial Discrimination?
- Federal Protection Against Discrimination
- Types of Racial Discrimination in the Workplace
- Proving Racial Discrimination in the Workplace
- Starting a Workplace Discrimination Claim
- Legal Remedies for Workplace Discrimination
Our Employment Law Attorneys Fight Racial Discrimination
Racial diversity in the workplace should be considered a strength. Unfortunately, many employers still demonstrate actions, attitudes, and policies that unfairly impact people belonging to racial or cultural minority groups. If you believe you’ve been a victim of racial discrimination in the workplace, let the Employment Law Team at Robinson & Henry know about it. There are many remedies that could be available to you. Call 303-688-0944 for your free case assessment, o lláme al 720-359-2442 para hablar con alguien en español.
What is Racial Discrimination?
Racial discrimination occurs when an individual is subjected to unequal treatment because of their actual or perceived race.
The United States Constitution and, more specifically, the Civil Rights Act of 1964 work together to ensure that no American resident’s rights and standing under the law are damaged by their race. This includes men and women in the workforce.
What is a Protected Class?
Protected classes are groups of people who the law protects from discrimination. Federal employment laws prohibit discrimination against people because of their race, religion, national origin, color, or sex.
Other U.S. states, including Colorado, have enacted laws forbidding discrimination on the basis of age, sexual orientation, parental status, and disability.
Colorado’s anti-discrimination statutes are outlined in the Colorado Anti-Discrimination Act (CADA), or C.R.S. 24-34-402
>Federal Protection Against Racial Discrimination
Title VII of the Civil Rights Act of 1964 is the primary federal law safeguarding employees from racial discrimination in the workplace. Under Title VII, an employer with 15 or more employees cannot discriminate against an individual because of their race, religion, sex, color, national origin, age, or genetic information.
Protections in Title VII
Racial discrimination is illegal at any stage of employment, including:
- hiring, firing, or taking disciplinary actions
- establishing terms of employment and working conditions
- allocating payment, benefits, or perks
- considering promotions or other opportunities
- classifying or segregating employees in a way that denies them opportunities
This applies to employment agencies as well. These businesses cannot make decisions on referrals or work assignments based on an individual’s race. Labor unions and representatives cannot refuse membership or expel individuals because of their race. Title VII of the Civil Rights Act of 1964 (SEC. 2000e-2)
Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups.
Workplace Racial Harassment
Title VII also prohibits harassment in the workplace due to a person’s race or color. Harassment may include, for example:
- racial slurs
- offensive remarks about a person’s race or color
- the display of racially-offensive symbols
Creating a Hostile Work Environment
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not too serious, harassment becomes illegal when it is so frequent or severe that it creates a hostile work environment.
The harasser can be the victim’s supervisor, a supervisor in another area or department, a coworker, or a person who is not even an employee but is often present at the worksite, such as a client or customer.
Types of Racial Discrimination in the Workplace
Racial discrimination can take many forms. In an employment context, most cases fall into these two categories: disparate treatment and disparate impact.
This is a blatant kind of discrimination. When an employer intentionally treats an employee less favorably than another for discriminatory reasons, this is known as disparate treatment. It is also referred to as “intentional discrimination.”
Examples of Disparate Treatment
Disparate treatment due to racial discrimination isn’t hard to spot. It can be as ugly as repeatedly verbally harassing an employee about their race. Or it can be as matter-of-fact as consistently overlooking one employee’s shortcomings while never missing an opportunity to criticize or undermine the performance of a minority worker.
This is a more subtle, institutionalized form of discrimination. Any time a workplace policy appears neutral on the surface but disadvantages a protected class, it is shown to have a disparate impact.
Disparate impact discrimination can be insidious and intentional, or it can be completely unintended. Either way, it’s illegal.
An employer’s failure to analyze their workforce before enacting potentially discriminatory policy is not a legal defense against a disparate impact claim.
‘Disparate Impact’ Scenario
An internet security firm with 40 employees offers a limited-time opt-in for its workers to enroll in premium health care benefits at minimal cost. However, only employees who have been with the firm for at least 10 years are eligible for the benefits. As it turns out, the only employees eligible for the new health care plan are white because the firm only began hiring non-whites four years ago.
Now consider the following questions:
- Is this “reward for worker loyalty” a case of good intentions causing unintentional discrimination?
- Is it a sneaky pat on the back reserved only for the firm’s white employees?
- Or, is the employer allowed to reward company loyalty with extra perks and incentives without being accused of disparate impact discrimination?
Disparate Impact Cases are Tough to Prove
Because disparate impact discrimination involves less overt acts, these claims are difficult to bring. It’s important to work with an experienced employment law attorney who knows how to subpoena and gather the right evidence to support your case.
Proving Racial Discrimination in the Workplace
Anyone attempting to file a racial discrimination claim against an employer must begin with a credible, or prima facie, case. This means there are enough facts in place to justify a hearing, a judgment, or further investigation.
A prima facie claim of racial discrimination in the workplace must include the following facts:
- you are a member of a protected class of a racial or cultural minority
- your employer knew you were a member of a racial minority group
- your employer did something that harmed you (termination, disciplinary action, refused to hire, promote, or pay you fairly, etc.)
- your work performance was on par with that of similarly employed coworkers who were treated better, and are not in your protected class as a racial minority
Those are the four basics of a credible workplace discrimination claim. However, some claims might need a little more evidence. Such as …
Disparate Impact Claims
In addition to establishing the main facts that are listed above, a disparate impact claim must also show that the employer’s policy or practice caused others in the plaintiff’s protected minority group to be treated worse than non-minority workers. These cases often require your attorney to investigate internal company documents.
Reduction-in-Force Discrimination Claims
Sometimes economic troubles force an employer to downsize their workforce. When this happens, the employer is tasked with deciding who gets to keep their job.
Potential Reduction-in-Force Discrimination Scenario
A Hispanic man is laid off from his job at a manufacturing plant. At first, he takes it in stride, files for unemployment benefits, and begins to look for new work. Later, he learns that the majority of the people laid off at the plant where he had worked were nearly all of the plant’s Hispanic and African American workers.
Reduction-in-force layoffs are not an excuse to discriminate against any protected class of Americans, including racial and cultural minorities, as the U.S. Eighth Circuit Court of Appeals has ruled:
“Even within the context of a legitimate reduction in force, an employer may not fire an employee because of the employee’s race, color, national origin, sex, pregnancy, religion, disability, or age.” Yates v. Rexton, Inc., 267 F.3d 793 (8th Cir. 2001)
Starting a Workplace Discrimination Claim
You’ve been a target of racial discrimination in your workplace and have decided to take legal action. Now what?
Where to File Your Racial Discrimination Claim
You must file a Charge of Discrimination with either the Colorado Civil Rights Division (CCRD) or the federal Equal Employment Opportunity Commission (EEOC).
You cannot launch a Title VII or Colorado Anti-Discrimination Act (CADA) lawsuit without first attempting to resolve the issue through the CCRD or the EEOC.
There is no need to file your claim with both administrative bodies at once since they cooperate with each other and share information. You can file with either the CCRD or the EEOC and request that they cross-file your charge with the other body.
Mind the Filing Deadline
Whether you go with CCRD or EEOC, you must file your Charge of Discrimination within 300 days of the date you believe you were discriminated against. Once that time limit of roughly 10 months expires, you lose the opportunity to make the claim.
What to Expect After Filing a Charge of Discrimination
Let’s say you file your Charge of Discrimination with the EEOC.
Once receiving your claim, the EEOC will give you a copy of it and issue a case number, called a charge number, so you can identify your claim whenever you need. Then, within 10 days, the EEOC will send a notice and copy of your discrimination charge to the employer.
Next, the EEOC will do one of the following:
- attempt to arrange mediation between you and the employer
- request a written answer, or rebuttal, to your claim from the employer and then conduct an investigation
- dismiss your claim if it was filed too late or if the EEOC does not have jurisdiction to act upon it
If the EEOC decides to investigate your claim, they could interview witnesses and gather relevant documents. Once the investigation is complete, you and your employer will be notified of the results.
After the Investigation
If the EEOC determines that discrimination occurred, or that there is “probable cause” it occurred, they will try to reach a voluntary settlement with your employer. If the employer refuses to settle the claim, the EEOC could opt for limited litigation, or issue a right to pursue the case in court.
If the EEOC determines that discrimination did not occur, you will still receive a notice of your right to file a lawsuit in a court of law.
Filing a Claim with CCRD
Filing a Charge of Discrimination against an employer through the Colorado Civil Rights Division works much the same way as submitting through the EEOC.
First, you must fill out an online intake form at the CCRD website. It is important to be as thorough as possible when filling out the intake form. The CCRC, or Commission, will use the information you’ve provided to determine whether you’ve submitted a prima facie case of workplace discrimination and whether it has jurisdiction to take further action.
If the Commission decides to investigate, it will prepare the formal Charge of Discrimination on your behalf and then send a notice and copy of your claim to the employer.
Response and Rebuttal
The employer will have 30 days from the date it receives notice of your discrimination claim to submit a written response to the charge. This is the employer’s opportunity to explain why its actions toward you were not racially informed or discriminatory. The employer can submit supporting documents and witness statements along with its response.
Next, the Commission will send you a copy of the employer’s response, giving you 30 days to submit a rebuttal. This is an opportunity for you to explain why the employer’s purported justification for its actions is only a pretext — or false reason — and to reiterate your charge of discrimination.
At this juncture, you also can submit relevant documents and written witness statements to support your claim.
Hearing and Decision
If a settlement can’t be reached, or if you don’t withdraw your charge of discrimination after the employer’s response, the case will move to a hearing before an administrative law judge.
The judge can either determine that there was no discriminatory intent in the employer’s actions or that discrimination occurred and order appropriate remedies. You or the employer may appeal the administrative law judge’s ruling.
Let’s examine how one Colorado worker successfully proved a racial discrimination claim.
Colorado Civil Rights Commission v. Big O Tires
Karen Thurman, an African-American woman, had been employed by Big O Tires as a sales clerk for four years when she was fired for violating policies regarding the use of a mechanical time clock. Specifically, Thurman would periodically fail to clock in and out, and she was issued a warning on April 24, 1991, that she would be terminated if these violations continued.
On May 13 and May 15 of the same year, Thurman failed to use the time clock during her lunch break. On May 16, Big O Tires terminated her employment.
Meanwhile, a coworker of Thurman’s, a white Caucasian woman named Cherie Edmonds, had also been warned on April 24 for numerous violations of the time clock policy. On May 14, Edmonds worked through lunch without supervisor approval, then left work an hour early, also without approval. Unlike Thurman, Edmonds received no immediate disciplinary action.
Noting the differences in treatment, Thurman filed a discrimination complaint with the Colorado Civil Rights Commission, alleging that Big O Tires had discriminated against her on the basis of her race in violation of Colo. Rev. Stat. § 24-34-402 (1988).
Decision and Appeal
Once Big O Tires received notice of Thurman’s discrimination claim, a supervisor reviewed Edmonds’ records and timeclock history, then fired her. The firing came too late. An administrative law judge, having already found that Thurman presented a prima facie discrimination case, decided that Big O Tires had discriminated against Thurman because of her race and that its stated reason for terminating her employment had been a pretext.
Upon an appeal by Big O Tires, the Colorado Court of Appeals reversed the administrative law judge’s ruling, saying the record did not support the finding that Big O Tires was motivated by race when it terminated Thurman’s employment. The appeals court decided there just wasn’t enough evidence of racial discrimination, since Thurman had repeatedly violated Big O Tires’ timeclock policy.
The Colorado Supreme Court Weighs In
The Colorado Civil Rights Commission took the case to the state Supreme Court, which handed down a decisive ruling in June of 1997, vacating the appeals court reversal and reinstating the administrative law judge’s original finding that Big O Tires’ termination of Thurman had been racial discrimination.
“Where a prima facie case of discrimination is proven and the reasons given for discharge are found to be a pretext for discrimination, no additional evidence is required to infer intentional discrimination.” Colorado Civil Rights Comm’n v. Big O Tires
Legal Remedies for Workplace Racial Discrimination
If an employee prevails on a claim of racial discrimination in the workplace, he or she could be entitled to several forms of relief, including compensatory and punitive damages.
Other likely remedies include:
Lost Back Pay and Future Pay
- Back Pay will typically consist of your base salary plus any raises you would have been entitled to over the period since the date of termination, if you were fired due to racial discrimination. It will also include sums for sick pay, vacation pay, and any other benefits you might have had.
- Future Pay is usually money awarded for lost compensation in lieu of reinstatement, which is not always likely after a successful racial discrimination claim. It will be determined much the way back pay is, but with a future end date.
Compensatory and Punitive Damages
Compensatory damages are awarded for mental and emotional suffering. These damages reimburse successful claimants for out-of-pocket expenses caused by the discrimination.
Punitive damages are meant to punish employers over blatant or particularly odious incidents of workplace discrimination, harassment, or retaliation for filing or supporting another worker’s discrimination claim.
There are Title VII limits on the dollar amount of compensatory damages that can be awarded depending on the size of the employer that is found at fault.
- For employers with 15-100 employees, the limit is $50,000.
- For employers with 101-200 employees, the limit is $100,000.
- For employers with 201-500 employees, the limit is $200,000.
- For employers with more than 500 employees, the limit is $300,000.
Anyone who prevails against an employer in a racial discrimination case can also recover attorney’s fees and any other costs incurred while prosecuting their case.
Find Out if You Have a Workplace Racial Discrimination Case
If you believe you have been discriminated against at your place of employment due to your race, color, or cultural background, contact a Robinson & Henry Employment Attorney at once. The time you have to file a charge through the administrative process is limited, and the claim is not considered filed until it is accepted by either the EEOE or the CCRD. Waiting too long to get a case moving could end your opportunity for justice before it gets off the ground. Don’t wait. Call 303-688-0944 for your free case assessment.