The purpose of this article to introduce readers to the realities of discrimination in the workplace, empower them with knowledge of existing antidiscrimination laws, and articulate how to pursue a claim.
The average unemployment rate for Blacks is double that for Whites, and according to the Economic Policy Institute briefing paper #306, in 2010 the unemployment rate for White graduates was 8.4% versus 19% for Black graduates. According to the Bureau of Labor statistics, the unemployment rate for Whites with less than a high school degree was 13.9%. These facts weigh against common arguments that attempt to explain the unemployment gap as attributable to educational attainment or aptitude. According to Couch and Fairlie “Last Hired, First Fired? Black-White Unemployment and the Business Cycle” terminations are the driving force behind the unemployment rate disparities between Blacks and Whites.
They found that if Blacks exited employment at the same rate as Whites, their predicted unemployment rate would fall to 3.6%. This shows that as much as 95% of the unemployment rate gap is due to their higher probability of losing work. Title VII prohibits race discrimination. This includes adverse employment actions taken because of race but also a court will likely include other immutable characteristics such as ancestry, color, hair texture, facial features, name, accent or manner of speech. Mutable characteristics such as hair style (e.g. locks or a goatee), which many may consider tied to cultural identity, have not been fully embraced by the courts as protected traits.
Adverse employment actions include • Failure or refusal to hire a qualified minority candidate because of race • Unequal pay because of racial bias. • Termination because of race. • Unequal “terms, conditions or privileges” of employment because of race.
Although courts have not consistently interpreted the words “terms, conditions or privileges,” some courts have interpreted these words to encompass the following actions when based on race: deprivation of developmental opportunities, changing working conditions without changing compensation, or placing a negative evaluation in an employee’s permanent file. Discrimination law also prohibits harassment based on race.
You must have evidence that will enable you to prove your case. If currently employed, keep a journal recording incidents of suspected discrimination or harassment. Write down dates, times and witnesses to any incidents. Keep copies of email and all other forms of communication. Take pictures of any discriminatory signs or writings posted in the workplace. In unequal pay cases, you will have to deal with the fact that pay is often a taboo topic at work.
Nevertheless, you may be able to ask your colleagues to determine if you are paid less. You can also ask former colleagues. It is imperative that your position not only shares the same title but also that you share similar skills, tenure and actual work duties. In an unlawful termination case, you must prove you were qualified to perform the job and produce direct, circumstantial or statistical evidence indicating the employer singled you out for termination.
When a tangible employment action such as a termination is not at issue (e.g. claim of hostile working environment) the employer has available an affirmative defense that (1) they exercised reasonable care to prevent and correct the problem (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Therefore, before filing a suit take advantage of internal complaint procedures. However, the timing of your communication internally is key. There are staunch protections against retaliatory actions but never forget employers are seasoned professionals and know the rules much better than you will when preparing for this battle. Hence, align yourself with informed assistance and strike when you know you have solid support and know what to look for in the event you face retaliation.
Do not sign anything without legal advice, including negative evaluations. Never forget internal legal counsel and human resources represent the company’s interest, not your interests. While you should be cautious with your dealings internally, given the length and expense of litigation, internally developed results can be less costly.
In failure to hire cases, it is first imperative that you identify and attain known qualifications for your targeted positions. This may seem obvious in writing but in practice it may not be so clear. Work through your general contacts, recruiter, supervisor or human resource department to procure a job de scription complete with desired qualifications. After applying and interviewing, continue to revisit any postings or ongoing recruiting efforts to stay abreast of whom if anyone other than you is ultimately awarded the position.
The more difficult challenge will be proving thedecision not to hire you was based on race. Nevertheless, with enough circumstantial evidence the court may infer the decision was based on race without a direct statement by the hiring manager that you were denied the opportunity due to your race. The EEOC requires that certain employers maintain records of their employment tests and selection criteria. 29 C.F.R. §1607.4(A) & (B). The data collected under 29 C.F.R. §1607.4(A) & (B) cannot make your case, however, courts have allowed such information to serve as additional circumstantial evidence of discrimination.
Finally, to bring a case under Title VII, the plaintiff may file either through the EEOC or Ohio Civil Rights Commission. These organizations share information, hence, filing at the Ohio Civil Rights Commission will automatically result in notification of the EEOC and vice versa.
In general, you need to file a charge within 180 calendar days from the day the discrimination took place. However, in some circumstances this may be extended, therefore, you will want to contact your local office directly. To file a charge with the EEOC contact the National Contact Center at 1-800-669- 4000. To file a charge with Ohio Civil Rights Commission contact the information center at 1-888-278-7101.
Section 1981 provides protections similar to those outlined in Title VII. However, Section 1981 not only includes employees but also contractors. Section 1981 claims may be filed pro se but it is advisable to use the services of a lawyer. The statute of limitations varies by type of claim, but in some instances may be longer than that made available under a Title VII claim. The Cincinnati Bar Association offers listing of plaintiffs lawyers upon requestand can be contacted at 513.381.8359.
Section 1981 damages are not limited to a cap. Title VII places a cap on the sum of punitive and compensatory damages based on the size of the employer’s workforce: from employers with 15-100 employees: at $50,000 to Employers with 501 or more employees: at $300,000.
A study of discrimination filings conducted by the American Bar Foundation found that from 1987 to 2003 only six percent of discrimination cases go to trial and roughly 33 percent of those cases are successful. The average reported verdict is $125,000. (Laura Beth Nielsen & Aaron Beim, Media Misrepresentations: Title VII, Print Media, and Public Perceptions of Discrimination Litigation, 15 Stan. L. & Pol’y Rev. 237, 251 (2004).
Due to the negative stigma of “playing the race card,” potential retaliation in the job market, monetary and emotional investment, many suffer discrimination but decide not to pursue their case. Discrimination can wear you down and exhaust you emotionally to the point you feel there is little left in the tank to fight. Moreover, there is a low probability of securing a windfall should you pursue a case. Hence, the utilitarian may decide it is simply not a worthwhile investment. However, I would challenge the utilitarian t o think deeper about the cost of not pursuing a case.
Unchecked illegal behavior is known to grow into what can become a severe problem creating a culture of corruption. Not pursuing a claim in analogous to not reporting a break in at your house or a robbery. If enough people stop reporting the crime, the criminals become emboldened and the entire community suffers. What is technically a crime simply becomes accepted as the way things are, and there is a tacit acceptance of criminal behavior.
You can take steps to manage your costs by leveraging the EEOC and the Ohio Civil Rights Commission to the greatest extent possible and attempting to procure the services of a lawyer on a contingency basis. In a contingency arrangement, the lawyer is paid based upon a percent of the court ordered reward. In a contingency arrangement you may be expected to pay for certain court costs, however, it will significantly reduce the financial investment required to pursue your case.
Blacks are being discriminated against in the workplace. Racial discrimination is illegal and employees can use the justice system to help fight against discrimination. Today, we can better utilize the underfunded EEOC and inadequate legal protections with the aforementioned strategies. Tomorrow, we must fight for more robust legal protections, adequate funding for the EEOC and judges dedicated to upholding the law of the land.
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