Race Discrimination

Race discrimination is prohibited by Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act (PHRA). Section 1981 of the Civil Rights Act of 1866 also prohibits discrimination based upon race where the employer is a private, non-public entity. Each of these laws prohibits discrimination in the terms or conditions of employment on the basis of a person’s race or color.

Race discrimination may occur at any stage of employment, including the initial hiring decision, promotions, layoffs, compensation, job assignment, or the termination of employment. Race discrimination can take the form of treating any employee differently because of any racial characteristic, including skin, eye or hair color, and certain facial features. A race discrimination claim may be based upon:

• Disparate Treatment – The employee is subject to discrimination because of race, ethnicity, skin color, or a similar characteristic.
• Disparate Impact – Although the employer may not intend to discriminate, the employer’s policies adversely affect employees on the basis of race, ethnicity, skin color, or a similar characteristic.

There is a key legal distinction between disparate impact and disparate treatment race discrimination. A case involving disparate treatment requires a finding of intentional discrimination and the plaintiff must prove that the employer had a discriminatory intent or motive. To the contrary, disparate impact cases do not require a showing of intent.

Race discrimination can also take place while an employee goes about performing his job where a hostile work environment based upon race is manifested through racist comments or harassment.

The following acts or practices are examples of race discrimination in the workplace:

• Creating a hostile work environment through racial harassment
• Discriminating against an employee because of his or her association with people of a certain race or ethnicity, e.g., marriage or workplace friendships
• Insulting or demeaning jokes about a person’s ethnic or racial background, skin color, facial features, hair type, or other race related features
• Restricting an employee’s chance for job advancement or opportunity based on race
• Segregating employees based on race

Disparate Treatment – Race Discrimination

To succeed on claim for race discrimination under Title VII or Section 1981, an employee must establish purposeful discrimination. The law does not require direct discrimination (for example, a comment such as we do not hire African American employees and only hire Caucasians). A plaintiff employee may prove race discrimination through indirect evidence in which courts apply a three-step, burden-shifting analysis known as the McDonnell Douglas test. First, the Plaintiff employee must establish a prima facie case of race. This requires the employee to assert (1) the employee is a member of a protected class, (2) the employee has the qualifications for the job at issue, (3) the employee was subject to an adverse employment action (i.e. termination or failure to promote) and (4) the circumstances surrounding the employer decision raise an improper motive.

The burden of production then shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If the employer makes such a showing, the plaintiff employee must then demonstrate that the employer’s stated reason was a pretext (cover up) for race discrimination. An employee can demonstrate pretext by presenting evidence which shows substantial doubt about the employer’s reason such as the reason being weak, not believable, implausible, contradictory, or incoherent. This showing permits a judge or jury to reasonably conclude that race was more likely than not a motivating or determinative cause of the adverse employment action.

In a race discrimination claim involving the failure to promote, an employee plaintiff must show that there was (1) the possibility of an employee being promoted to the position and the position remained open, or (2) an employee was promoted to the position under circumstances that would support an inference of a racially discriminatory motive. An example of an inference of discrimination arising in the context of a failure to promote case, is where all of the candidates for the job were considered relative equals prior to an interview process but none of the successful candidates was part of one race (i.e. African-American or Asian) and all of the successful candidates were of another race (i.e. Caucasian).

Race Discrimination and Hostile Work Environment Claims

A racially hostile work environment occurs where an employee is exposed to a hostile work environment because of the employee’s race. In order to prove a racially hostile work environment, a plaintiff employee must show (1) the employee suffered intentional discrimination because of race, (2) the discrimination was severe or pervasive, (3) the discrimination detrimentally affected him, and (4) the discrimination would detrimentally affect a reasonable person in like circumstances. Courts must consider the totality of the circumstances when determining whether the alleged harassment is sufficiently severe or pervasive to constitute a hostile work environment. The circumstances include the frequency and severity of the discriminatory conduct, whether it is physically threatening or humiliating, or an offensive utterance and whether it unreasonably interferes with an employee’s work performance.

Claims can arise even where certain race related actions may not be individually actionable but when the racially motivated actions aggregated together show that a hostile work environment exists. Examples of evidence which could substantiate a racially hostile work environment include repeated use of racial slurs such as the term Negro, the hanging of nooses in the workplace or hanging of the confederate flag.

An employer is not always liable for a racially hostile work environment. One key factor is the job of the harasser as it relates to the employee who is being harassed, such as whether the harasser is a manager /supervisor or a co-worker. If a manager / supervisor creates the hostile work environment, the employer is liable for the conduct, provided the employment action issue is termination, discharge, demotion, or an undesirable assignment. If the manager /supervisor charged with creating the hostile environment did not take employment action against the employee, the law permits the employer to attempt to defend the case by showing the employer exercised reasonable care to avoid the harassment and that the employee failed to take advantage of safeguards. Where the hostile work environment is created by an employee’s co-worker the employer is liable for harassing conduct if the employer negligently or recklessly failed to train, discipline, and fire or takes appropriate action after the employer was notified about the harassment.

Race Discrimination – Disparate Impact

Race discrimination is illegal when a disparate impact exists. Employment practices that have the unintentional effect of discriminating based on race are illegal. An employer cannot limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities because of the individual’s race or color. Even practices that are not intended to discriminate which have a disproportionately adverse effect on minorities are illegal. If an employment practice serves to exclude minorities and cannot be shown to be related to job performance, or business necessity, the practice is prohibited. The employer’s motives and whether or not the employer has employed the same practice in the past are immaterial if the employer practice causes disparate impact on minorities.

To prove a disparate impact, first, an employee plaintiff must establish a prima facie case by demonstrating that application of a facially neutral standard has caused a significantly discriminatory hiring pattern. This requires the employee plaintiff to prove a significant statistical disparity and to demonstrate that the disparity is the result of one or more of the employment practices that the employee is attacking. For example, showing a statically comparison between the racial composition of the jobs at issue and the racial composition of the qualified population in the relevant labor market.

The employer may defend the disparate impact only by demonstrating that the challenged practice is job related for the position in question and consistent with business necessity, which means that employers may not use criteria which have a discriminatory effect unless those criteria define the minimum qualifications necessary to perform the job. The employer bears the burden of production and persuasion.

To prove business necessity the law requires proof that challenged hiring criteria accurately predicts job performance. Ultimately, if the employer cannot present compelling evidence of business necessity, the employee plaintiff wins simply by showing the stated elements. Even where an employer demonstrates business necessity, an employee plaintiff can overcome the business necessity defense by showing that alternative practices would have less discriminatory effects while ensuring that candidates are duly qualified.

We often successfully represent employees who have been subjected to race discrimination and racially hostile work environments. Call Abramson Employment Law at 267-470-4742 or contact us online to discuss your legal options.