Racial discrimination in the workplace: What to know

Despite laws and policies in place to prevent it, discrimination based on race is still a prevalent issue in many workplaces. According to a report by Gallup, 75 percent of Black workers and 61 percent of Hispanic workers who experienced discrimination in the workplace in 2020 reported that the discrimination was based on their race or ethnicity. 

Racial discrimination can take many forms, from overt acts of bigotry to more subtle biases that can significantly impact people’s lives and careers. Education and awareness can be key to identifying this kind of discrimination in the workplace. It’s important for employees to know and understand their rights and options if the need to address it arises. 

This article explores the different types of racial discrimination at work. It also provides guidance on steps to take if you experience or witness such discrimination.

What is racial discrimination in the workplace?

Racial discrimination in the workplace is a form of unfair treatment or harassment that’s based on an individual’s race or ethnicity, or on personal characteristics associated with race or ethnicity, such as skin color, hair texture or facial features

It can take many different forms, including:

• Refusing to hire or promote someone based on their race
• Paying employees of a certain race less than others
• Firing, demoting or disciplining someone based on their race
• Harassing or creating a hostile work environment for someone based on their race
• Providing different working conditions, assignments or benefits based on an employee’s race
• Making offensive or derogatory comments or jokes about someone’s race

Racial discrimination in the workplace can be intentional or unintentional, and it can be perpetrated by supervisors, coworkers, clients or customers. 

Types of racial discrimination in the workplace

Understanding the different types of racial discrimination is essential for recognizing when they occur and for taking action to prevent or address them. Two primary categories of racial discrimination in the workplace are disparate treatment and disparate impact. 

Disparate treatment

Disparate treatment is a form of intentional racial discrimination that occurs when an employee or job applicant is treated unfairly or less favorably because of their race or ethnicity. 

Examples of disparate treatment include but aren’t limited to:

• A qualified job applicant of a certain race isn’t hired because the employer has a preference for applicants of a different race.
• An employee of a certain race is given a lower performance rating than other employees who perform the same or lower quality of work.
• An employee of a certain race is passed over for a promotion despite being equally or more qualified than other candidates who were promoted.
• An employee of a certain race is subjected to harsher disciplinary actions than other employees for the same or lesser offenses.
• An employer pays employees of a certain race less than other employees for the same or similar work.
• An employer requires employees of a certain race to work more difficult or dangerous assignments than other employees who have similar qualifications and experience.

Disparate treatment can be difficult to prove, as it often involves subjective decisions by employers and requires evidence of discriminatory intent. But don’t let that stop you from reporting this type of discrimination and seeking advice from legal counsel, if you choose to do so.

Disparate impact

Disparate impact is a form of unintentional racial discrimination that occurs when a seemingly neutral policy or practice has a disproportionately negative impact on employees of a particular race or ethnicity. This can include things like employment tests, hiring criteria or promotion policies that, while not intentionally discriminatory, have a disparate impact on certain groups of people. 

Examples of disparate impact in the workplace include but aren’t limited to:

• An employer requires that all job applicants have a high school diploma, which has a disparate impact on certain racial or ethnic groups who are more likely to drop out of high school.
• An employer insists on specific hairstyles that aren’t feasible for certain racial or ethnic groups, or refuses to allow hairstyles that are favored by specific racial or ethnic groups.
• An employer requires all employees to take a standardized test that’s unrelated to the job duties, which has a disparate impact on certain racial or ethnic groups who may not have had access to the same educational opportunities as others.
• An employer’s policy of only hiring employees with a clean criminal record has a disparate impact on certain racial or ethnic groups who are more likely to have been unfairly targeted by law enforcement or have faced systemic racism in the criminal justice system.

Disparate impact can be more difficult to recognize and address than disparate treatment because it’s unintentional. However, more companies today recognize the need to identify and eliminate policies or practices that may have a discriminatory impact on certain groups of people.

What laws protect against racial discrimination in the workplace?

There are federal and state laws in place to protect employees from racial discrimination and provide legal recourse for those who experience it. 

National laws

In the United States, the primary federal law that prohibits discrimination based on race, color, religion, sex or national origin is Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees and prohibits discrimination in all aspects of employment, including hiring, firing, promotions and pay. 

Under Title VII, employers are prohibited from treating employees differently because of their race, and they can’t retaliate against employees who report racial discrimination. Employees who experience racial discrimination in the workplace may file a complaint with the Equal Employment Opportunity Commission (EEOC). Remedies for violations of Title VII can include compensatory and punitive damages, as well as injunctive relief such as back pay and regaining a lost position.

State laws

In addition to federal laws, many states have their own laws that protect employees from racial discrimination in the workplace. These laws may provide additional protections or remedies beyond those provided by federal law. They may also apply to smaller employers or provide protections in areas not covered by federal law.

For example, California’s Fair Employment and Housing Act (FEHA) prohibits employment discrimination based on race, color, national origin, ancestry and other protected categories. FEHA applies to employers with five or more employees and provides for remedies such as compensatory and punitive damages, injunctive relief and attorney’s fees. 

New York State’s Human Rights Law similarly prohibits employment discrimination based on race, color and other protected categories. It provides for remedies such as back pay, compensatory damages and attorney’s fees.

Other states may have different laws or provisions that protect against racial discrimination in the workplace. In some cases, state laws may provide more expansive protections than federal law. Employees may also have the option of pursuing claims under both state and federal law. 

Note that some cities and municipalities have their own laws that protect against racial discrimination in the workplace. For example, Seattle’s Office for Civil Rights enforces the city’s anti-discrimination laws and provides education and outreach on issues related to discrimination.

An employment lawyer familiar with the laws in the state where you work can discuss in detail the protections and remedies that may be available to you.

What should I do if I think my employer discriminated against me?

If you believe that your employer has discriminated against you based on your race, ethnicity or national origin, there are several steps you can take. 

1. Keep a record

Documentation of the discriminatory behavior can provide evidence and establish a pattern of behavior to help build your case. 

Here are some tips on how to keep an effective record:

• Keep a log: Create a written record of each incident of discrimination, and keep this in a safe place where you can access it easily. You can also use a digital file or note-taking app to keep track of incidents. Note as much detail as possible, including the date and time of the incident, the names of any witnesses and exactly what was said or done. Be clear and concise, but make sure to include all relevant information.
• Be objective: When documenting incidents, try to avoid using emotional language or making assumptions about the motives of the person or people involved. Stick to the facts and avoid speculation or interpretation.
• Gather evidence: If possible, gather any physical evidence that supports your claim, such as emails, texts or memos that relate to the discriminatory behavior. You can also take screenshots or photographs of any discriminatory social media posts or messages.
• Stay organized: Keep all of your records and evidence in a clear and easy-to-understand format. This will help you to present your case clearly and effectively if you decide to file a complaint. 

2. Check your company’s policies and procedures

Look at your employee handbook or company policies to see if there’s a process for reporting discrimination. This may involve filing a complaint with human resources (HR) or another designated person within the company. By following company procedures, you can help ensure that your complaint is taken seriously and addressed appropriately.

Here are some tips on how to effectively navigate this process:

• Review the employee handbook: This can provide information on the steps to follow when filing a complaint related to anti-discrimination, including who to report the incident to and what documentation may be required.
• Speak to HR: If you have an HR department, consider speaking to them about your concerns. They can advise you on company policies and procedures related to discrimination and may be able to help you file a complaint.
• Follow the process: If your company has a formal process for reporting discrimination, make sure to follow it closely and provide as much detail as possible when documenting the incident.
• Keep a copy of all documentation: Keep a copy of any records and evidence, as well as written correspondence or notes from meetings with HR representatives. This will help you to track the progress of your complaint and provide evidence if necessary.
• Be aware of any deadlines: Some companies have strict deadlines for filing a discrimination complaint. If you’re not sure what the deadline is, ask HR or a supervisor.

3. File a complaint with the appropriate agency

If you’re uncomfortable reporting the discrimination to your employer, or you’re unsatisfied with the outcome, you may be able to file a complaint with the Equal Employment Opportunity Commission (EEOC) or a state or local agency that enforces anti-discrimination laws.

To determine which agency is appropriate for your situation:

• Search online: Many state and local government websites have information about agencies that enforce anti-discrimination laws. You can try searching for “anti-discrimination agency” or “civil rights agency” in your state or local area.
• Contact the EEOC: They may be able to provide information about state or local agencies that also enforce these laws.
• Contact a civil rights organization: These groups may also be able to provide information about state or local agencies that enforce anti-discrimination laws. Some examples of civil rights organizations include the NAACP, ACLU and Anti-Defamation League.

Once you identify a state or local agency, review their website or contact them directly to understand their process for filing a complaint and the specific laws that they enforce. When you do this, keep copies of all documentation that you provide or file.

Filing a complaint with an agency can be a complex and time-consuming process. However, it can also be an effective way to address racial discrimination in the workplace and ensure that your rights are protected. By following the process carefully and documenting everything, you can make a strong case and help create a more inclusive workplace for all employees.

4. Consult with an attorney

Talking with an experienced employment attorney can be helpful if you’re considering taking legal action. Look for attorneys who have experience specifically in employment discrimination cases. You can search online, ask for recommendations from friends or colleagues or consult local bar associations for referrals.

Come prepared for your consultation with information about your situation, including any documentation or evidence you’ve collected. This will help the attorney understand the details of your case and provide an informed opinion. Don’t be afraid to ask questions about the legal process, potential outcomes and the attorney’s strategy for handling your case. 

5. Sue your employer

Once you’ve exhausted all other options, you can consider filing a lawsuit against your employer for racial discrimination.

If you’re suing your employer in federal court, you’ll first need to receive a right-to-sue letter from the EEOC, which gives you permission to file a lawsuit in federal court. This letter indicates that you’ve exhausted your options with the state or federal agencies. It means that the EEOC isn’t going to handle your matter any further, and if you want to bring a lawsuit, the EEOC is consenting to such action. You must file the lawsuit within 90 days of receiving the notice of right to sue.

How to prove racial discrimination in the workplace

When reporting any type of discrimination in the workplace, the burden of proof is on the employee. Proving racial discrimination in the workplace can be a complex and difficult process, but it’s essential for seeking justice and holding your employer accountable.

Some things that may help you prove racial discrimination in the workplace include:

• Keep detailed records: As described above, keep a written record of any incidents of racial discrimination. Also keep copies of any relevant documents and take notes of any conversations or meetings related to the incident.
• Identify a pattern: Look for patterns of behavior that indicate repeated racial discrimination, such as being passed over for multiple promotions or assignments, or being subject to negative comments or treatment based on your race.
• Collect evidence: Collect any physical evidence that supports your claim of discriminatory behavior, such as emails, texts, memos and screenshots or photographs of social media posts or messages.
• Seek out witnesses: Try to find witnesses who can corroborate your account of the incident or provide additional information. Ask coworkers, managers or HR representatives if they saw or heard anything that supports your claim.

When to talk with a lawyer

You don’t need a lawyer to address racial discrimination in the workplace. However, many people find it helpful to work with an attorney, particularly if:

• They’ve filed a complaint with the EEOC or state agency and would like legal advice on their options and next steps.
• They’re considering filing a lawsuit against their employer. An attorney can evaluate the case and provide guidance on the legal process.
• They have questions about their rights under anti-discrimination laws or are unsure what actions to take in response to discriminatory behavior.