In the United States of America and most countries of the world, it is illegal to discriminate on employment based on people’s race. Title VII of the Civil Rights Act of 1964 (Title VII) is the federal statute that outlaws discriminatory practices.

Discrimination comes in a variety of ways, and if you have a gut-feeling that you are being discriminated against on the basis of race during recruiting, hiring, or promotion, you can take certain actions to prove your case.

You can start by identifying the boundaries of racial discrimination. Then you can gather evidence, file a charge with the Equal Employment Opportunity Commission (EEOC), and even go to court.

In order to prove that you have been discriminated based on your race in a place of work, you will have to show that you were subjected to a negative job action because of your race. With this in mind, it is still good to note that there are still a lot of cases where direct evidence of discrimination exists — such as a memo telling managers not to hire applicants of a particular race — but these are rare. However, more often than not, an employee may be tasked with proving that they have been discriminated using indirect evidence.

When it comes to classic discrimination cases, the majority of early case law revolves around race discrimination. Currently, race discrimination receives the highest prohibitions, and it also receives the strictest scrutiny as outlined in a number of constitutional law cases. In some cases, it’s easy to see discrimination in the workplace, but just because it’s easy to see doesn’t mean that it will be easy to prove.

Racial discrimination cases just like any other discrimination case will have to be proven in other to satisfy a judge or a jury depending on the type of case it is. It is always up to the plaintiff to provide proof that such discrimination has occurred even if the discrimination was very obvious. It’s important to document the behaviors so that you can either establish that racial discrimination has created a hostile work environment or that you have been systematically discriminated against based on your race.

What Is Race Discrimination?

Race discrimination might include segregating employees of a particular race in certain jobs, making decisions based on stereotypes about race, treating an employee differently for associating with people of a particular race, making decisions based on conditions that correlate to race, or making distinctions based on skin color.

For instance, a department store chain usually puts its white employees in the sales job position, while Latino employees are placed mostly in restocking and warehouse positions.

A delivery company refuses to hire Asian applicants as truck drivers because the hiring manager believes Asians are poor drivers and more likely to get into accidents.

A consulting firm doesn’t promote a white employee whose husband is from Iraq; because the firm’s principals often bring their spouses when they entertain important clients, and they are afraid their clients will feel uncomfortable around an Arab American.

A restaurant chain has many African American employees; however, the chain routinely assigns lighter-skinned African Americans to wait tables and seat customers, while African Americans with darker skin are channeled to jobs washing dishes and busing tables.

Harassment based on race is also illegal. For example, if employees tell racist jokes and threaten an employee because of his race, that would constitute illegal racial harassment.

Proving Race Discrimination

In some cases, an employee can have real evidence that he or she is being discriminated in the work place. For example, the company owner may have sent hiring managers an email saying, “for some time now, we have been hiring Indians as our customer service agents, and this has to stop or else we will drive away most of our wealthy customers.” Or, a manager may have told an employee, “as long as I’m making the decisions, this company is not going to have anyone Asian in management.” However, these types of evidence are rare and very difficult to come by.

So what can you do if you believe you were discriminated against but you don’t have this type of direct evidence? You have to prove your case indirectly. To start, you must prove a prima facie case of discrimination. Prima facie is Latin for “on its face” or “at first glance.” If you file a lawsuit, you will have to be able to make this showing in order to force your employer to present some evidence. In a race discrimination lawsuit, a prima facie case has four parts:

You are in a protected class.

You are qualified for a job or performing it adequately.

You were denied a job benefit (for example, you were not hired) or subjected to a negative job action (such as termination or demotion).

The person who got the benefit was of a different race or the company continued to search for qualified applicants.

For example, if you were denied a promotion and you believe it was because you are Lebanese, your prima facie case would consist of proving that you were qualified for the promotion, you didn’t get it, and the person who got it is not Chinese.

Once you present this evidence, the employer must produce some evidence that it had a legitimate, nondiscriminatory reason for its decision. In the above example, the employer might claim that you lacked the necessary skills, licenses, or experience for the promotion.

After the employer presents this evidence, you ultimately bear the burden of proving that the employer’s decision as discriminatory. The most common way to do this is to prove that the employer’s explanation is a pretext for discrimination.

Again, using the promotion example, you might present evidence that the person who was promoted actually had less experience than you, that you had the necessary qualifications for the job, and that the company has never promoted a Chinese person to its managerial ranks.

In order to have a more in-depth understanding of what constitutes racial discrimination and the various types that exist, here are some real life instances you can use as a reference point.

Example 1: direct discrimination: Ms. Cho, a lady of Asian ethnicity, applies to work as a receptionist at an organization in a predominantly white area. She meets all of the job requirements, but following an interview the employer tells Ms. Cho that she wouldn’t fit in such a work environment. A white person with similar skills and experience is hired instead. This is likely to be an example of direct racial discrimination, because of the reason given by the employer. To prove direct discrimination, Ms. Cho would have to prove that a person from a different racial group was treated more favorably in similar circumstances.

Example 2: indirect discrimination: Ramone, a Spanish national living in the United States of America, applies for an account manager position at a marketing agency. The job advert gives “native English speaker” as a requirement, but Ramone is bilingual and meets all the other requirements. After interview, he is rejected as a non-native English speaker.

Indirect race discrimination happens when a rule or policy set by an employer places people from certain racial, ethnic or national groups at a disadvantage. In this case, Ramone may have spoken perfect English, but could never be hired because of his background.

Example 3: racial harassment: Muhammad is a Muslim working as an administrator in local government. His line manager continually comments on his appearance and questions him about Islamic customs. As weeks go by, Muhammad begins to find his workplace hostile and intimidating.

Racial harassment does not have to be only overtly insulting remarks or behavior. It can include any unwanted conduct related to an employee’s race, especially when it violates their dignity or creates an offensive environment.

Example 4: victimization: Leroy, a Black man, is taking his case to employment tribunal after being racially abused by two colleagues. In the run up to the hearing, many more of his colleagues stop talking to him and his manager puts him on probation.

This is an example of victimization, which is a form of direct racial discrimination protected by the Equality Act. Although Leroy’s victimization seems to be a direct response to his tribunal claim, it is also an attack on his right to defend himself from racial harassment.

Example 5: racial discrimination by association: Michael, a white American man, performs well at an interview for a sales rep position. The next day he runs into the interviewer while out with his wife, who is of African descent. The interviewer makes it clear Michael will not be hired because of his wife’s color.

A person doesn’t need to be from a minority group to be racially discriminated against. If an employer treats them unfairly because they associate with people of another race, or because they are perceived to be of another race, that’s still direct racial discrimination.

What if my employer denies discriminating against me?

As soon as you establish a presumption of discrimination, you should consider the reason that your company gave for terminating you.

In court, an employer has the opportunity to offer a legitimate, non-discriminatory reason for its conduct. The law only requires the employer to articulate, or state a reason for its conduct. It does not have to prove that it is the true reason.

A company can almost always come up with some reason for the action that it took. Once the employer articulates this reason, your presumption of discrimination is gone and you will have to offer additional evidence.

In the event that your employer fails to provide a legitimate reason for your termination, the presumption remains and you have proven a case of discrimination. However, you should not place all your hope on this even though you may think that your employer has no legitimate reason for terminating your employment, you should remember that your employer doesn’t need a “good” reason, just any reason besides your protected status. The vast majority of employers can do this.

What can I do if my employer’s reason is a cover-up for discriminating against me?

If your employer offers a reason for terminating your employment, it is now up to you to prove that the explanation is actually a cover up for actually discriminating you. You may be able to prove that the employer’s stated reason is just a cover-up or pretext for discrimination if you can prove any of the following:

  1. The given reason is not factually accurate or true
  2. The given reason is does not have enough merit to warrant a discharge from the organization.
  3. The given reason is so riddled with errors that your employer could not have legitimately relied upon it
  4. Your protected status is more likely to have motivated your employer than the stated reason
  5. Powerful direct or circumstantial evidence of discrimination

In order to successfully challenge your employer’s denial, the law requires you to prove that your employer’s stated reason is false and that your protected status played a role in your termination.

What evidence do I need if my employers seemingly neutral policy had a discriminatory effect?

Trying to prove a disparate impact case is similar to proving a discriminatory intent case. First, you must use circumstantial evidence to create a presumption that the employer’s seemingly neutral policy, rule or practice had a discriminatory effect on a protected class or category. Next, your employer then has the opportunity to show that the policy, rule or practice was a job-related business necessity. If your employer is able to show that the policy, rule or practice was a business necessity, then you can still win if you are able to prove that your employer refuses to adopt an alternative policy, rule or practice with a less discriminatory effect.

What are the remedies if I win my discrimination case?

  1. Back Pay: this refers to earnings that you lost as a result of the discriminatory policies and act that the organization has indulged in up to the date of a judgment.
  2. Front Pay: this refers to lost future earnings due to the effects of the discrimination.
  3. Lost Benefits: this may include health care coverage, dental insurance, pension or 401k plans, stock options, and profit sharing.
  4. Emotional Distress Damages: also known as pain and suffering. These are the mental or emotional injuries that result from the discrimination.
  5. Punitive Damages: this is intended to punish the employer for particularly discriminatory conduct.
  6. Attorneys’ Fees: In addition to the damages you can recover for your injuries, you can also win an award of attorney’s fees, expert witness fees, and court costs.

Getting Legal Help

Without an iota of doubt, proving a case of racial discrimination can be quite difficult. With the aid of a lawyer you will be able to figure out what evidence might exist to prove your claims and how you can get it.

Lawyers also have a number of legal tools they can use to gather evidence in a lawsuit. Along the way, a lawyer can help you explore settlement options with your former employer. If that doesn’t work, the lawyer can ultimately present your claims and argue your case in court.

You need to be able to prove through objective evidence that your employer, or others in the business who are in a position of authority over you, have done these things. Remember to look for your employer’s counter arguments.

If, for instance, you sue for racial discrimination based on the fact that you were demoted and receive even lower pay than those at a similar level, you need to know whether your employer has evidence that you were demoted or disciplined due to inadequate work performance or other legitimate reasons.

Just because the employer states that this is the case doesn’t mean you’ve lost your case. You just need to be prepared to provide proof to the contrary. Even if you don’t know for sure whether your employer can claim such facts, be prepared to demonstrate your own efforts to make your case stronger.

Ajaero Tony Martins