$500 Retainer

By Bryan A. Chapman, Esquire

Conventional wisdom says workplace discrimination cases are difficult to prove because the acts of discrimination are subtle. As a result, victims of workplace discrimination generally have to pay thousands of dollars to retain an attorney.

For people of color, workplace discrimination may not be subtle but blatant and even violent. Supervisors and co-workers assume that these victims will not complain or will not be believed.

Many people of color, with textbook cases, have a difficult time finding an attorney. Some of these cases are compelling and could lead to sizable settlements. Nonetheless, attorneys are either not interested or require thousands of dollar in retainer.

Unfortunately, when a victim files an EEOC complaint, without the advice of an experienced attorney, the chances of their complaint being dismissed by EEOC is overwhelming.

Experienced attorneys, particularly those of color, should commit to helping these victims file EEOC complaints. For an initial $500 retainer, an experienced attorney could advise victims over the telephone and via e-mail in a manner similar to the way LegalZoom.com operates.

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Bryan A. Chapman, Esquire

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Racial Inequality, at College and in the Workplace

White Americans still disproportionately outnumber their African American and Latino counterparts when it comes to obtaining good jobs, regardless of education they have obtained.

By 

Elin Johnson 

October 18, 2019

ISTOCKPHOTO.COM/HYEJIN KANG

new study released by Georgetown University in part refutes the notion that African American and Latinx minorities can improve their socioeconomic standing just by going to college.

According to the study, between 1991 and 2016, black and Latino Americans increased their likelihood of obtaining and maintaining a good job, but their white peers still disproportionately hold better jobs compared to their overall employment.

“It’s a pretty damning story all together, and it says that there’s a huge challenge ahead of us,” said Anthony Carnevale, a research professor at Georgetown and director of the university’s Center on Education and the Workforce, who is also a co-author of the study.

A good job as defined by the study is one that provides “family-sustaining earnings,” which translates to minimums of $35,000 annually for workers 25 to 44 and $45,000 for workers 45 to 64.

Regardless of education levels obtained, these racial disparities continue to exist. Diversity in higher education has made improvements over the years but is still not accessible to all, primarily due to cost. The National Center for Education Statistics found that in 2017, 41 percent of white young adults were enrolled in college, compared to 36 percent of black and Hispanic young adults. Additionally, for Americans over 25, 33 percent of whites have a bachelor’s degree, compared to 19 percent of blacks and 16 percent of Hispanics.

The study found that in 2016 the median wage of a good job for workers with a bachelor’s degree for whites was $75,000 compared to $65,000 for blacks and Latinos.

White workers are also paid more than black or Latinx workers in good jobs at every level of education received. College-educated whites have benefited the most from the increased demand for college-educated workers, said the study.

The study also found that in 2016 white workers held 77 percent of the good jobs despite only representing 69 percent of available job holders. Black workers had 10 percent of the good jobs out of 13 percent of the jobs they held, and Latinx workers had 13 percent of good jobs while holding 18 percent of all jobs. Also in the study findings was that black Americans have almost twice the unemployment rate of white Americans, and Latinos have about 1.5 times the unemployment rate of whites.

“We are a culture that keeps secrets from ourselves,” said Carnevale regarding the bias that exists in hiring processes.

Additional explanations for the lack of minorities in good jobs despite education levels, beyond personal bias, includes feeder patterns through school systems and the ability to form connections with people already in good jobs. However, according to Carnevale, at the margins, bias and discrimination better describe the divide in who holds good jobs.

As workers increase their level of education, wage discrimination is reduced between whites and minorities, but it still remains.

“Our institutions are now working in such a way that it pretty much guarantees that the white kids win. And we know that this is deeply embedded in the system,” Carnevale said.

Carnevale cited a previous study he worked on which found that 70 percent of white students from the top income sector still ended up going to college and getting a good job, while only 30 percent of lower-income students with high test scores followed that path. When those lower-income and minority students did make it into good jobs, they ended up getting paid less than their white counterparts.

He said that the conclusions to the study were stronger than he thought they would be, noting that there was progress for African Americans despite their position in comparison to whites.

“We had slavery, Jim Crow, the failure to hand out 40 acres and a mule; we had housing policy, veterans’ policy, redlining. The new culprit is higher education,” said Carnevale. “It’s institutional just like the [Federal Housing Administration] policies that didn’t allow black people to buy houses in the suburbs. Colleges in America didn’t set out to do this, but in a passive sense they’ve become the capstone in a system that guarantees racial inequality.”

“In the end higher education is part of the problem, not part of the solution. The industrial organization of higher education is part of the problem,” said Carnevale.

Carnevale said that higher education needs to fundamentally change to help solve the problem, something he says most people recognize.

While African American and particularly Latino workers have gained traction in fields where a high school or middle-skills education is needed, whites still dominate jobs which need a bachelor’s level of education. Middle skills refer to jobs that require less than a B.A. but more than a high school degree.

Carnevale compared the situation to a race where minorities are “running faster but losing ground” to white Americans, particularly affluent ones, who are pulling ahead.

“I don’t think people — I didn’t, anyway — fully understood the extent to which, since the ’80s, the white and affluent population has basically locked down the future,” said Carnevale. “You can get rid of discrimination, but this is a structural problem.”

Carnevale said that whites are poised to continue to hold good jobs, especially in the B.A. sector, and minorities will have a hard time catching up.

The study recommended expanding educational opportunities and addressing discrimination, as well as implementing policies and incentives that encourage diversity and create more growth in underdeveloped areas.

One of the solutions Carnevale suggested was introducing work experience and training to students earlier. This included in middle and high school, because as it stands now, young people are not getting the relevant work experiences they need.

Carnevale said that some good news is that the number of good jobs is increasing while black and Latinx unemployment rates have decreased. However, those improvements do not mean that black or Latinx Americans have caught up to the good job opportunities accessible to white Americans.

“The pessimistic conclusion I come to — and not all my co-authors agree with me — is that the white population in America has set itself up for the next 30 to 40 years,” said Carnevale. “I don’t see what will change that except for policy on a scale that’s actually effective.”

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Immigration Status Discrimination

Source: Workplace Fairness

Immigration Status Discrimination occurs when an employer treats an individual differently based upon their citizenship or immigration status. U.S citizens, recent permanent residents, aslyees, and refugees are protected from immigration status discrimination. The only exception applies to permanent residents who do not apply for naturalization within six months of eligibility; these individuals are not protected from immigration status discrimination. This type of discrimination deals largely with abusive requests for paperwork related to ones immigration status. Immigration status discrimination is also sometimes referred to as citizenship status discrimination and is closely linked to National Origin Discrimination. This page will provide more detail about immigration status discrimination. Also find more related information on our national origin discrimination page.

1. What is discrimination based on immigration or citizenship status?

2. Which federal laws cover discrimination based on immigration or citizenship status?

3. Who is protected under the law?

4. Which employers are covered by the law?

5. Can I be asked if I am a citizen?

6. I am a non-citizen with valid work papers. Can I be denied employment because my employer prefers to hire “Americans?”

7. My employer’s clients and customers do not like people who “look foreign.” Can I be reassigned or denied a job based on their preferences?

8. Can an employer request work authorizations only from those who “sound foreign?”

9. What documents can my employer request me to produce in order to begin working? I showed my employer my driver’s license and social security card, but he insists on seeing my green card. Is this legal?

10. I am an employer and have noticed that an individual I intend to hire has submitted documentation that is about to expire, is it illegal for me to hire them?

11. I do not have authorization to work in the U.S. and my employer knows this. Can I be hired anyway?

12. I do not have authorization to work in the U.S., but I have been working anyway. What do I do if I have been harassed or discriminated against at work?

13. Can my employer have me deported for reporting harassment or discrimination?

14. Who enforces the law?

15. How can I file a complaint?

16. What are the remedies available to me?

17. How long do I have to file?

18. More information about immigration status discrimination:

1. What is discrimination based on immigration or citizenship status?

Discrimination based on immigration or citizenship status occurs when an individual is treated differently in their employment because of their citizenship or immigration status. It is different from national origin discrimination because the characteristic the discrimination is based on is the individual’s immigration status, rather than whether an individual or his or her ancestors came from another country. Both types of discrimination are against the law.

The only exception to this rule applies to permanent residents who do not apply for naturalization within six months of eligibility. These individuals are not protected from citizenship status discrimination. Similarly, some actions by employers that might otherwise be considered illegal discrimination, may be permissible if they are required by another law, executive order, regulation, or government contract. For example, a government contractor may request additional paperwork for a security clearance, if the government contract requires it.

If you have been rejected for employment, fired, or otherwise harmed in your employment because of your citizenship, immigration status or type of work authorization, you may have suffered illegal immigration status or citizenship status discrimination.

The Immigration Reform and Control Act (IRCA) is a federal law that protects individuals from employment discrimination based on immigration or citizenship status. This anti-discrimination law makes it illegal to discriminate on the basis of national origin or citizenship status in hiring, firing (including layoffs), recruitment, or referral for a fee. It makes it illegal to require more or different documents than are legally acceptable for employment verification purpose. It also makes it illegal to refuse to honor the documents the employee offers if they are legally acceptable and appear to be genuine. Finally, it prohibits intimidation, coercion, threats, or retaliation against individuals who file charges or otherwise cooperate with an investigation, proceeding, or IRCA hearing.

Some examples of potentially unlawful immigration or citizenship status discrimination include:

  • You didn’t get hired because the employer hires only U.S. citizens to do certain jobs.
  • You are a temporary resident with work authorization, but a company denies you employment because it doesn’t want to deal with the “hassle” of filling out the appropriate paperwork.
  • Muslim, Asian and Latino employees are asked for copies of their work authorization papers, while other employees who are Caucasian or African-American are not asked to provide similar authorization papers.
  • You show your employer your driver’s license and social security card, but your supervisor insists that you also show her a copy of your green card. When you point out that this is not required by law to fill out the I-9 form, you are told the company requires it.
  • You sign up with a temporary agency, and learn that a certain employer has work for someone with your skills and experience. The agency refuses to refer you to work for this employer because the employer wants to hire only U.S. citizens.

Discrimination, harassment, or retaliation against an undocumented worker on the basis of other protected statuses, such as racesex or religion also violates the law.

If any of these things have happened to you on the job, you may have suffered immigration or citizenship status discrimination.Back to Topback to top

2. Which federal laws cover discrimination based on immigration or citizenship status?

The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), is a federal law covering almost all immigration matters. It protects individuals from employment discrimination based on immigration or citizenship status, and prohibits document abuse discrimination, which occurs when employers request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents, or specify certain documents over others.

Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon national origin, and protects undocumented workers from other forms of discrimination, such as discrimination on the basis of race or colorsex or religion. Other federal laws prohibit discrimination against undocumented workers on the basis of age and disability.

While workers are also covered by several other workplace laws, these are the main federal laws which protect workers against discrimination based on immigration or citizenship status.Back to Topback to top

3. Who is protected under the law?

IRCA’s anti-discrimination provision prohibits discrimination against “protected individuals,” who include citizens or nationals of the United States, permanent residents, lawful temporary residents, refugees, and asylees.

U.S. citizens, U.S. nationals, and authorized aliens are protected from discrimination on the basis of national origin if the employer employs more than 4 employees. While Title VII covers only workplaces with 15 or more employees, INA/IRCA prohibits discrimination on the basis of national origin in workplaces where the employer employs between 4 and 14 employees.

If two non-citizens have different immigration status, an employer may not favor one status (such as permanent resident) over another (temporary resident with work authorization) or require certain kinds of documents from one employee and not from the other.

The law’s protections apply to job applicants as well as current employees. If you are a current employee and are fired or not promoted due to your immigration or citizenship status, you are protected by the law. If you are not hired due to your immigration or citizenship status and/or the valid work authorization documents you present, you are also protected by the law.Back to Topback to top

4. Which employers are covered by the law?

All employers with 4 or more employees are covered by the laws against discrimination based on immigration, citizenship status, and document abuse. While Title VII covers only those workplaces 15 or more employees, INA/IRCA prohibits discrimination on the basis of national origin in workplaces with between 4 and 14 employees. The only difference between the two anti-discrimination laws concerns which governmental agency enforces the laws against your employer.Back to Topback to top

5. Can I be asked if I am a citizen?

An employer should not ask about your citizenship status during a job interview. The employer can only notify you as a job applicant that, should a job be offered to you, you will be expected to provide evidence that you are legally entitled to work in the US within the first three days of starting work. The employer should say this to every job candidate, as saying this selectively may be illegal discrimination.Back to Topback to top

6. I am a non-citizen with valid work papers. Can I be denied employment because my employer prefers to hire “Americans?”

Generally not. A “U.S. citizens-only” policy in hiring is illegal. An employer may require U.S. citizenship for a particular job only if it is required by federal, state, or local law, or by government contract.Back to Topback to top

7. My employer’s clients and customers do not like people who “look foreign.” Can I be reassigned or denied a job based on their preferences?

No. Client or customer preferences do not allow your employer to engage in illegal discrimination.Back to Topback to top

8. Can an employer request work authorizations only from those who “sound foreign?”

No. To avoid claims of unlawful citizenship discrimination or document abuse, employers are required to treat everyone the same — regardless of appearance, accent, name, or citizenship status — when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.Back to Topback to top

9. What documents can my employer request me to produce in order to begin working? I showed my employer my driver’s license and social security card, but he insists on seeing my green card. Is this legal?

Under IRCA, employers are required to ask for documents establishing identity and authorization to work in the United States. There are several combinations of legally acceptable documents from which they can choose. These combinations are listed on the back of the I-9 form, which must be completed for every employee, regardless of national origin, including U.S. citizens. As long as the documents presented prove identity and work authorization, and are included in the list on the back of the I-9 form, they are acceptable. Employers cannot prefer one document over others for purposes of completing the I-9 form.

Not all authorized aliens carry the same documents. Employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine looking documents, or specify certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin. For example, not all aliens who are authorized to work are issued green cards. As long as the documents are allowed by law, appear to be genuine, and relate to the person, they should be accepted. To not accept such documents is illegal.

These protections prohibit discrimination against U.S citizens as well as all individuals authorized to work in the United States.Back to Topback to top

10. I am an employer and have noticed that an individual I intend to hire has submitted documentation that is about to expire, is it illegal for me to hire them?

No, in fact it is illegal to discriminate against an individual upon these grounds. As an employer you are required to accept any document an employee presents from the lists of acceptable documents, as long as the document reasonably appears to be genuine and to relate to the employee. Furthermore as an employer, you may not

  • demand that an employee show specific documents
  • Ask to see employment authorization documents before an individual accepts a job offer
  • Refuse to accept a document, or refuse to hire an individual because a document will expire in the future
  • Refuse to accept a receipt that is acceptable for Form I-9 purposes
  • Demand a specific document when re-verifying that an employee is authorized to work

However, it is important to note that employers are required to reject paperwork that does not reasonably appear to be genuine or that does not relate to the individual presenting them.Back to Topback to top

11. I do not have authorization to work in the U.S. and my employer knows this. Can I be hired anyway?

IRCA was the first federal law making it illegal for employers to knowingly hire persons who are not authorized to work in the United States. IRCA also made it illegal to continue to employ an undocumented worker or one who loses authorization to work. (Those hired before November 6, 1986, do not fall within this category.) IRCA prohibits employers from knowingly hiring undocumented workers and requires employers to verify their employees’ identity and work eligibility as specified on the I-9 Form.

An employer who knowingly hires an undocumented worker and/or fails to verify an employees’ identity and work eligibility may be liable for criminal sanctions.Back to Topback to top

12. I do not have authorization to work in the U.S., but I have been working anyway. What do I do if I have been harassed or discriminated against at work?

According to the Equal Employment Opportunity Commission (EEOC), the governmental agency that handles discrimination cases, undocumented workers are, with a few exceptions, entitled to the same protections and relief as documented workers under federal anti-discrimination statutes.

If you are an undocumented worker who has been harassed or discriminated against, you should follow the same steps as other workers to file a discrimination complaint. EEOC will not, on its own initiative, inquire into a worker’s immigration status, nor consider an individual’s immigration status when determining whether a discrimination charge has merit.Back to Topback to top

13. Can my employer have me deported for reporting harassment or discrimination?

It is against the law for your employer to report or threaten to report a worker to the Immigration and Nationality Service (INS) because the worker opposed unlawful discrimination or participated in a proceeding under the anti-discrimination laws. If your employer appears to have acquired information about your unauthorized status after you complained of discrimination, the government agency investigating your complaint will also attempt to determine whether your employer’s purpose in finding out information about your immigration status was to retaliate against you.

Any person facing deportation, whether as a result of incidents occurring at work or not, should consult immediately with a lawyer who specializes in immigration law, as this is a serious and complex legal issue beyond the scope of the information provided by this website.Back to Topback to top

14. Who enforces the law?

The Department of Justice’s Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC) is responsible for investigating charges of job discrimination related to an individual’s citizenship, immigration status and, in certain situations, national origin. The OSC also investigates charges that an employer has requested that an employee or job applicant establish employment eligibility and identity by presenting more or different documents than are required by law, rejected reasonably genuine-looking documents, or demanded a specific document such as a Alien Registration Card or “green card.”

The Equal Employment Opportunity Commission (EEOC) is responsible for investigating charges of job discrimination related to an individual’s national origin in workplaces of 15 or more employees. The EEOC also investigates charges of job discrimination on the basis of race, color, sex, age, religion and disability, including charges filed by undocumented workers.Back to Topback to top

15. How can I file a complaint?

Contact the Office of Special Counsel (OSC) if your claim is for:

  • immigration status discrimination and/or
  • document abuse only, or
  • national origin discrimination, and there are 4-14 employees at your workplace.

See our page on filing a discrimination complaint if your claim is for:

  • discrimination other than immigration status discrimination or document abuse, and
  • there are 15 or more employees at your workplace.

Back to Topback to top

16. What are the remedies available to me?

Those who successfully prove they have been discriminated against because of their immigration or citizenship status can recover back pay, job offer, and reinstatement. OSC settlements can also require employers to stop discriminatory practices, pay monetary penalties, undergo monitoring, and receive antidiscrimination training.

If you are an undocumented worker and your employer discriminates against you in violation of any of the federal antidiscrimination statutes, you may obtain various kinds of relief as permitted by the federal statutes. For more detail, please see the page on this site that discusses the specific kind of discrimination that you suffered.

An undocumented worker may not be eligible for an award of back pay, according to a recent U.S. Supreme Court decision . An undocumented worker hired on or before IRCA was passed on November 6, 1986 is eligible for reinstatement. If you were hired after that date and your employer knows that you are undocumented, you must supply proper documentation verifying employment eligibility to be reinstated.

Undocumented workers are also nominally protected by the National Labor Relations Act from retaliation (including termination) for their union activities (such as organizing) even though they are undocumented. We say “nominally” because the Supreme Court has recently decided that while it is illegal for an employer to discharge an undocumented worker for union activities, the worker is not entitled to backpay for such retaliation. Back to Topback to top

17. How long do I have to file?

For workplaces with between 4 and 14 employees, you must file a charge with OSC within 180 days from the date you believed that you were discriminated against in order to protect your legal rights. To protect your rights, it is always best to contact OSC or an attorney promptly when you suspect discrimination has occurred.

For workplaces with 15 or more employees, please note that all laws enforced by Equal Employment Opportunity Commission (EEOC) require filing a charge with the EEOC (or a cooperating state agency) before a private lawsuit may be filed in court. Many states also require that you file with a state administrative agency or with the EEOC to enforce state laws. There are strict time limits within which charges must be filed. See filing a discrimination complaint for more information.Back to Topback to top

18. More information about immigration status discrimination:

Department of Justice’s Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC)
EEOC Questions & Answers: Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws
EEOC Rescission of Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination LawsBack to Topback to top

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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Big Mistakes Workers Make When They File Discrimination Claims

By Bryan A. Chapman, Esquire

Workplace discrimination is commonplace.  Federal statutes protect workers from discrimination based on their race, sex, national origin, religion, age, and disability.  The Equal Employment Opportunity Commission (EEOC) was created in 1965 to enforce the federal laws against workplace discrimination.  Unfortunately, for the past several decades, the EEOC has been ineffective in protecting workers from discrimination due to inadequate funding from Congress.

The EEOC is unable to investigate an increasing number of the discrimination claims it receives.  These claims are eventually dismissed by EEOC without being investigated.  Workers receive a “Right-to-Sue” letter that instructs them to file a discrimination lawsuit in federal court within 90 days.  The vast majority of workers who receive “Right-to-Sue” letter simply give up.

Even if EEOC is no longer an effective enforcer of federal workplace discrimination laws, the ever increasing number of EEOC claims signal to the Congress that workplace discrimination continues to be a major problem.  One can only hope that the growing number of EEOC claims will eventually lead to reform of the federal workplace discrimination laws.

In the meantime, workers who file discrimination claims with the EEOC have to be well prepared and strategic if they want to succeed.  Workers need sound legal advice prior to filing a claim.  The outcome of any discrimination claim depends on specific workplace discrimination laws and how they are applied to the facts of a particular case.  Workers have to convince EEOC that their claims are legally sound and worthy of being investigated.  When EEOC investigates claims, the intrusive nature of these investigations can convince employers to settle the claims.

Most workers who file discrimination claims are simply unprepared.

I. Unrealistic Expectations

Workers who file discrimination claims with the Equal Employment Opportunity Commission (EEOC) are generally unaware of their chances of success.  Many have the misguided belief that because their claim seems morally justified they will win.

Most workers are familiar with accident claims where fault is immediately determined, based on who caused the accident, and the only issue is the settlement amount.  Accident claims are settled quickly because insurance companies find it profitable to do so.  Insurance companies know that no one wants to get into an accident.

Insurance companies also insure employers against discrimination claims.  Employers and their insurers generally want discrimination claims to drag on for as long as possible.  They know that as time passes workers: 1) get frustrated and give up, 2) accept smaller settlements, or 3) have their claims dismissed.  Furthermore, this practice discourages other workers from pursuing discrimination claims.

Insurance companies hire private law firms to defend the employers they insure.  These law firms usually specialized in defending employers against discrimination claims.  These law firms generally apply a “scorched earth” approach.  All discrimination claims are vigorously contested and all allegations are denied.  And, the workers are portrayed as bad or incompetent employees.  Litigation can drag on for years and become extremely expensive.  As a result, only 3% of workers who file discrimination claims with EEOC receive a favorable decision from the agency.  And, workers who file discrimination claims in federal court win only 1% of the time.

II. Failure To Consult An Experienced Attorney

Most workers who file discrimination claims with EEOC do so without consulting an experienced attorney.  These workers believe that EEOC will champion their cases against their employers, which is simply not the case.

Workers need sound legal advice prior to filing a discrimination claim.  There are many employment actions that employers can take against workers that seem unfair but do not violate federal workplace discrimination laws.  For instance, employment-at-will allows employers to terminate workers at any time and for any reason.

Before filing a discrimination claim, workers need to know whether or not they have legally valid discrimination claims.  If workers have legally valid discrimination claims, they need effective strategies that allow their claims to succeed.

Most workers may be aware of federal statutes that prohibit discrimination in the workplace based on race, sex, national origin, religion, age, and disability.  But, they are unaware of the hundreds of court decisions that actually govern what does and does not constitute workplace discrimination when applied to the facts of their cases.  Filing a workplace discrimination claim without first obtaining sound legal advice is like coming to a gunfight blindfolded.

III. Expecting the Employer to Adopt Their Point Of View

Many loyal workers file discrimination claims with EEOC because they feel they are being harassed by a supervisor.  In many cases, they are unable to sleep at night and are fearful of being fired.

Some workers believe that it will be their word against the word of an unpopular supervisor.  They may actually believe that the employer will adopt their point of view once the supervisor’s alleged misdeeds are exposed.

Unfortunately, employers turn discrimination claims over to private law firms.  These law firms vigorously defend employers regardless of whether or not workplace discrimination has occurred.  All discrimination claims are contested and all allegations are denied.  These lawyers investigate workers and portray them as bad or incompetent employees.  Some workers become paralyzed with fear and believe that they are going to be eventually fired.  An experience attorney can calm client’s fears by preparing them for these personal attacks.

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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What Does At-Will Employment Really Mean?

At-will employment is something most U.S.-based employers are familiar with. But what does this term really mean? Can an employer actually terminate an employee without any reason at all? What are the exceptions?

Defining At-Will Employment

First, let’s start with the definition of “at-will employment.” It does in fact mean that an employer has the right to terminate an employee at any time and for any (or no) reason. It also means that the employee has the right to terminate his or her own employment at any time and for any (or no) reason. There are no predefined legal requirements in terms of notice periods either. This means the termination can be done without any prior notice.

If an employer/employee who is in an at-will employment situation decides to terminate the employment relationship, the other party has no recourse. In the United States, in almost every state (Montana is the exception), an employee is considered to be an at-will employee unless there is proof otherwise, such as an employment contract.

Exceptions to the At-Will Employment Doctrine

Employers need to understand that there are caveats to the above definition. This is because other laws may be broken if a termination is made for an otherwise illegal reason, such as discrimination. Here are some of the exceptions to the at-will employment doctrine:

      • An employee cannot be fired for a discriminatory reason. Title VII of the Civil Rights Act, for example, protects employees from discrimination based on race, national origin, religion, color, or sex. For another example, the Americans with Disabilities Act makes it illegal to discriminate against someone because of a disability.
      • An employee cannot be fired out of retaliation for performing a legally protected action. For example, an employer cannot fire an employee for filing a workers’ compensation claim. Other retaliation-protected actions include:
        • Filing a discrimination or harassment suit
        • Being a whistleblower regarding illegal or unsafe practices
        • Refusing to perform illegal activities
        • Participating in a workplace investigation
        • Requesting reasonable accommodation for a disability
        • Taking legally protected leave from work, such as FMLA  leave
        • Discussing (or complaining about) the working environment or wage and overtime practices

        An employee with a contract that outlines the terms of employment cannot be fired outside of those terms. In other words, contracts supersede at-will employment assumptions. Some states also provide protections for implied (unwritten) contracts. Check your local laws.

    • An employer who provides some protections in employment policies, such as firing only for just cause, must abide by those protections. In this case, the employer has opted to forgo the at-will option by providing other protections.

As we’ve shown here, terminating an at-will employee is not always as straightforward as it may seem. Employers should also remember that some states have more stringent requirements. Be sure to check state and local laws before making any termination decision.

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Bryan A. Chapman, Esquire

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What Actions Can Be Considered Workplace Retaliation?

Woman at desk, head bowed over computer, as she grapples alone with illegal retaliation in her workplace

Retaliation is revenge and can conjure up notions of Liam Neeson going after his daughter’s kidnappers in “Taken.” Workplace retaliation isn’t quite so dramatic. Or at least, it’s hopefully not quite that dramatic.

But workplace retaliation can be devastating, and it can (but doesn’t always) break the law. Understanding the rules around workplace retaliation is critical for Human Resources staff members, managers, and anyone who has a position of influence in the business.

What Does Retaliation Look Like?

Jane comes to HR and says,

John keeps asking me out on dates. I have told him no and asked him to stop.

John is a high performer, so you transfer Jane to another less desirable shift.

This is a classic case of retaliation: Jane complained about sexual harassment, and you punished her by moving her to a different shift. Now, you may say “but her pay remains the same, her title and seniority weren’t affected. This isn’t retaliation. And besides, Jane didn’t even say it was sexual harassment.”

The employee doesn’t have to use the magic words to receive legal protection for their actions. Jane complained about unwanted sexual behavior in her department; therefore it’s a sexual harassment complaint. The transfer retaliates against Jane.

Bob has 40,000 Twitter followers, including several coworkers. He posts a picture of his paystub with the caption, “Can you believe that Acme Inc. pays such terrible wages?”.

One of his coworkers take a screenshot and presents it to you. Bob named the company, and many people have replied and retweeted his tweet. As a result, you call Bob into the office and tell him that he has violated the company’s social media policy, and for doing such, you are suspending him for two weeks without pay.

This is illegal retaliation for concerted activities. According to the National Labor Relations Board:

If employees are fired, suspended, or otherwise penalized for taking part in a protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.

In other words, employees are allowed to discuss their working conditions with their coworkers, and talking about pay is covered by that law. It doesn’t matter that many others saw it on Twitter. The National Labor Relations Board still considers his comments concerted action.

Now, of course, there cases where retaliation is much more distinctly visible. Steve complains of racial discrimination. You immediately fire Steve for a poor attitude. But activities and actions like transfers  are a lot more difficult to pin down.

Is Retaliation Always Illegal?

It’s not. Retaliation is only illegal when the action that precedes the retaliation is protected by law. This can vary from state to state. It’s always illegal to retaliate against an employee for actions such as sexual harassment, racial discrimination, and concerted workplace activities. Some states have whistleblower protections that protect employees who bring up any variety of illegal activities, but not all.

If an employee makes a complaint that is unfounded, retaliation can be legal, and it can be illegal. For instance, if Jane complains that John is sexually harassing her, and you investigate and find out that actually John just asked her out one time. Factually, you found that Jane said no and he never bothered her again.

But, you still cannot retaliate against Jane as long as she genuinely believed that John behaved illegally. But, if you investigate and find out that Jane wanted John’s better shift, so she made up her complaint, then you can take action and retaliate.

The critical issue is that an employee must have a sincere belief that what they reported is illegal. Otherwise, retaliation is allowed.

Retaliation Doesn’t Stop Consequences

You may have a situation in which an employee is a poor performer, and just before you were going to discipline or terminate the employee, he files a complaint. That complaint doesn’t negate any other performance or employee actions. However, if you don’t have the documentation before the claim, acting after he files the complaint will look like illegal retaliation.

If you have documentation, you can continue along the disciplinary path, but do consider that the poor performance is a result of the harassment or discrimination, rather than an entirely separate situation.

How Do You Stop Retaliation?

Making a simple policy of “no retaliation” won’t solve all of your problems. (Of course, a policy never solves all problems.) You have to consider each situation carefully and on its own merits. Going back to Jane and John, how do you respond? If you determine John’s behavior wasn’t severe enough for punishment, yet Jane doesn’t wish to work with him anymore, how do you proceed?

If you transferred John to the less desirable shift, you are punishing him for something he didn’t do. Transferring Jane is retaliation as long as she had a sincere belief that John harassed her. Resolving such a situation can take serious negotiation and careful thought.

You may also need to sit down with Jane and explain why John’s behavior was not harassment, and that if she wishes to move to a different shift, you can do that, but otherwise, she still has to work with John. Explain to her that to transfer John when you have concluded that he did no wrong—is the wrong decision for the business.

You need to train your managers not to retaliate, and to report all protected complaints to HR. That will help you ensure that no retaliatory decisions happen and that you investigate all potential allegations.

Remember, if an employee sues you and you win on the facts, you can still lose on reported retaliation if you treated the complainant poorly. That’s why it’s critical to think through your actions before you take them and even consider discussing the right course of action with an employment law attorney.

 

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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Overview Of Federal Sector EEO Complaint Process

Source: Equal Employment Opportunity Commission

If you are a federal employee or job applicant, the law protects you from discrimination because of your race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. The law also protects you from retaliation if you oppose employment discrimination, file a complaint of discrimination, or participate in the EEO complaint process (even if the complaint is not yours.)

There are also federal laws and regulations and Executive Orders(which are not enforced by EEOC) that prohibit discrimination on bases such as sexual orientation, marital status, parental status, or political affiliation.

If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, you have a right to file a complaint. Each agency is required to post information about how to contact the agency’s EEO Office. You can contact an EEO Counselor by calling the office responsible for the agency’s EEO complaints program.

EEO Counselor

The first step is to contact an EEO Counselor at the agency where you work or where you applied for a job. Generally, you must contact the EEO Counselor within 45 days from the day the discrimination occurred.

In most cases the EEO Counselor will give you the choice of participating either in EEO counseling or in an alternative dispute resolution (ADR) program, such as a mediation program.

If you do not settle the dispute during counseling or through ADR, you can file a formal discrimination complaint against the agency with the agency’s EEO Office. You must file within 15 days from the day you receive notice from your EEO Counselor about how to file.

Filing A Formal Complaint

Once you have filed a formal complaint, the agency will review the complaint and decide whether or not the case should be dismissed for a procedural reason (for example, your claim was filed too late).

If the agency doesn’t dismiss the complaint, it will conduct an investigation. The agency has 180 days from the day you filed your complaint to finish the investigation.

When the investigation is finished, the agency will issue a notice giving you two choices: either request a hearing before an EEOC Administrative Judge or ask the agency to issue a decision as to whether the discrimination occurred.

Agency Issues A Decision (Final Action)

If you ask the agency to issue a decision and no discrimination is found, or if you disagree with some part of the decision, you can appeal the decision to EEOC or challenge it in federal district court.

Requesting A Hearing

If you want to ask for a hearing, you must make your request in writing or via the EEOC Public Portal located at https://publicportal.eeoc.gov/ where you can also upload hearing requests, and manage your personal and representative information within 30 days from the day you receive the notice from the agency about your hearing rights. If you request a hearing, an EEOC Administrative Judge will conduct the hearing, make a decision, and order relief if discrimination is found.

Once the agency receives the Administrative Judge’s decision, the agency will issue what is called a final order which will tell you whether the agency agrees with the Administrative Judge and if it will grant any relief the judge ordered. The agency will have 40 days to issue the final order. It will also contain information about your right to appeal to EEOC, your right to file a civil action in federal district court, and the deadline for filing both an appeal and a civil action.

Filing An Appeal Of The Agency’s Final Order

You have the right to appeal an agency’s final order (including a final order dismissing your complaint) to EEOC Office of Federal Operations. You must file your appeal no later than 30 days after you receive the final order. You may file your appeal using the EEOC’s Public Portal located at https://publicportal.eeoc.gov/ where you can also upload selected documents, and manage your personal and representative information.

EEOC appellate attorneys will review the entire file, including the agency’s investigation, the decision of the Administrative Judge, the transcript of what was said at the hearing (if there was a hearing), and any appeal statements.

If the agency disagrees with any part of the Administrative Judge’s decision, it must appeal to EEOC.

Request For Reconsideration Of The Appeal Decision

If you do not agree with the EEOC’s decision on your appeal, you can ask for a reconsideration of that decision. A request for reconsideration is only granted if you can show that the decision is based on a mistake about the facts of the case or the law applied to the facts. You must ask for reconsideration no later than 30 days after you receive our decision on your appeal.

Once EEOC has issued a decision on the appeal, the agency also has the right to ask EEOC to reconsider that decision.

Once we have made a decision on your request for reconsideration, the decision is final.

Filing A Lawsuit

You must go through the administrative complaint process before you can file a lawsuit. There are several different points during the process; however, when you will have the opportunity to quit the process and file a lawsuit in court, including:

  • After 180 days have passed from the day you filed your complaint, if the agency has not issued a decision and no appeal has been filed
  • Within 90 days from the day you receive the agency’s decision on your complaint, so long as no appeal has been filed
  • After the 180 days from the day you filed your appeal if the EEOC has not issued a decision, or
  • Within 90 days from the day you receive the EEOC’s decision on your appeal.

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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This is not your father’s EEOC.

By Bryan A. Chapman, Esquire

The Equal Employment Opportunity Commission (EEOC) was created in 1965 as a result of the Civil Rights Act of 1964 becoming law.  The Civil Rights Act of 1964 marked the end of the 100 year old Jim Crow era in the United States.

Under Jim Crow, Southern states enacted laws that made segregation mandatory in the everyday lives of blacks and whites.  Jim Crow laws were designed to prevent blacks from advancing both socially and economically.  In the Northern states, blacks faced discrimination and segregation in hiring, housing, and education.

The EEOC’s purpose is to protect workers from workplace discrimination and its mandate is to investigate worker’s complaints.  In EEOC’s early years, discrimination and segregation in hiring were routine practices in both Southern and Northern states.  Workplace discrimination occurred in plain sight.  Workers could rely on EEOC to investigate their complaints.  And, these investigations could lead to out-of-court settlements.

Today, almost sixty years later, workers can no longer rely on EEOC to investigate their complaints.  For decades, EEOC has had a backlog of cases because Congress has not provided the funding it needs to investigate an ever increasing number of discrimination complaints.  In order to cope with its backlog, EEOC is prioritizing cases, which means an ever increasing number of cases are dismissed before they can be investigated.  This practice leaves many workers out in the cold.

Workplace discrimination is difficult to prove.  Workplace discrimination is no longer occurs in plain sight as it did in the 1960’s.  Employers take measures to avoid costly discrimination lawsuits.  Outside consultants and HR personnel train management on how to prevent workplace discrimination, as well as, how to cover up workplace discrimination when it occurs.

The employment laws strongly favors employers over workers.  For instance, the employment-at-will doctrine provides employers with a lot of protection against allegations of discrimination.  The doctrine says that an employer can termination (which includes denial of promotion, demotion, and undesirable reassignment) a worker at any time and for any reason, good or bad, provided it is not done for a discriminatory reason.  This means that a worker is burdened with proving that his termination was a direct result of discrimination.

When an employer decides to terminate a worker, it generally places the worker under heightened scrutiny for a period of time in order to generate a paper trail of deficient job performance.  The paper trail is a defense against allegations that the termination was discriminatory.  Furthermore, employers routinely deny all allegations of discrimination.  It means that in the absence of a “smoking gun” workplace discrimination is difficult to prove.

Most workers are aware that federal statutes prohibit workplace discrimination based on race, sex, national origin, religion, age, and disability.  Unfortunately, federal statutes give workers a false sense of security.  The outcome of an actual discrimination case depends on the applicable case law of a particular locality and relevant facts that may be in dispute.  Only, an experienced lawyer can gain access to and make effective use of this kind of information.  As a result, workers who files discrimination complaints with EEOC, without consulting an experienced lawyer, are generally out of their depth.

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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Race Discrimination

Racial discrimination refers to the practice of treating individuals differently because of their race or color. Federal law prohibits race discrimination in the workplace and incidents of race discrimination can take many forms, in the workplace particularly, race discrimination can be hard to identify. For more information about race discrimination, read below.

  1. What is race discrimination?
  2. Which federal law covers race discrimination?
  3. Who is protected under the law?
  4. How does Title VII protect against discrimination?
  5. What is intentional discrimination?
  6. Can I be discriminated against because my spouse and friends are of different races?
  7. Can I be discriminated against by someone of the same race as me?
  8. Are racial jokes or slurs against the law?
  9. What is reverse discrimination and is it covered under Title VII?
  10. Can I be assigned to a particular kind of job, or to a certain neighborhood or territory because of my race?
  11. Can a job application ask me to identify my race?
  12. Can employers use testing or implement a policy that affects one race more than another?
  13. Is race ever a qualification for a certain job?
  14. What about policies that affect one race more than another, do they constitute discrimination?
  15. My company has an affirmative action plan. How can this affect me?
  16. What is the difference between race discrimination and racial harassment?
  17. What if I don’t have direct evidence of race discrimination, do I lose my case?
  18. Who enforces the law?
  19. What are the remedies available to me?
  20. What is the difference between the federal anti-discrimination laws and state laws?
  21. How can I file a complaint?
  22. More Information about Race Discrimination

1. What is race discrimination?

Racial discrimination occurs when an individual is treated differently base on their actual or perceived race. Race discrimination also includes discrimination based upon skin color. Though race and color are related concepts, the two are not synonymous.

Color generally refers to discrimination based upon one’s pigmentation, complexion, or skin shade (lightness, darkness) or tone.  Color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity.

Race discrimination can also occur if an individual is treated differently based on their association with members of another race. Such discrimination can occur directly, such as when an employer intentionally targets a member of a racial group or indirectly when a seemingly neutral job policy tends to exclude minorities for a reason that is not job-related. Additionally, regulation that prevents race discrimination also prohibits discrimination based upon stereotypes, assumptions about abilities, traits or the performance of individuals of certain racial groups.

If you have experienced any of the following situations, you may be a victim of race discrimination:

  • Hiring/Firing/Promotions: You apply for a job for which you have experience and excellent qualifications. You are not hired because some of the company’s long-time clients are not comfortable working with African-Americans. You are told that you are being laid off due to company cutbacks and reorganization, while white employees with the same job and with less seniority than you keep their jobs. You have worked for your company for several years, receiving excellent reviews and an employee-of-the-year award, yet each of the five times you have applied for promotions, the positions you applied for are instead filled by less qualified people of a different race.
  • Pay: You worked your way up from the position of executive assistant to project manager. A white project manager with similar training and work experience was recently hired, and you find out that he will be paid more than you. You are a top salesperson for your company but are moved to a less desirable territory because it is a minority neighborhood, while a white employee with much lower sales is given your territory and client base, enabling him to make much more in commissions than you will make for several years.
  • Job Classification: You work at a company that has an eight-tier job classification system; your responsibilities have increased over time, but your job classification and pay have remained stagnant; white colleagues have their job classification and pay adjusted to reflect their increased responsibilities.
  • Harassment: One of your coworkers thinks it is “funny” to use the “n-word” in conversation and to tell jokes insulting African Americans, Latinos, Asians, and other minorities. These comments make you very uncomfortable, and you’ve asked him to stop, but he tells you that you need to get a sense of humor. The boss tells you to ignore him but does not talk to or discipline your coworker for his discriminatory behavior.

The examples listed above are not an exhaustive list but do illustrate the general elements of race discrimination.

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2. Which federal law covers race discrimination?

Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination in employment based on race. Title VII makes it illegal for an employer to discriminate against individuals because of their race in hiring, firing, discipline, distribution of benefits, promotion, compensation, job training, or any other term, condition, or privilege of employment. The laws of most states also prohibit discrimination based on race. For more information, see question 22 below.

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3. Who is protected under the law?

Title VII covers all private employers, state and local governments, and educational institutions that employ 15 or more individuals. Title VII also includes private and public employment agencies, labor organizations, and joint labor-management committees controlling apprenticeship and training.

Anti-discrimination protections apply to job applicants as well as current workers. If you are a current employee and are fired, not promoted, or paid at a lower rate, you are protected under the law. If you are not hired because of your race, you are also protected.

Many states also make it illegal to discriminate based on race. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.

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4. How does Title VII protect against discrimination?

The law forbids discrimination when it comes to any aspect of employment. This includes hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

There are two broad types of racial discrimination:

  • Disparate treatment: when individuals are treated differently on purpose because of their race. Examples: offering ethnic minorities lower starting salaries, or posing different interview questions to white applicants and ethnic minorities.
  • Disparate impact: this is a negative impact that race discrimination might have. It happens when seemingly neutral workplace practices have an unnecessary and negative effect on members of a protected class. Examples: unnecessary requirements for one’s appearance, like requiring men to have short hair, which might eliminate qualified Native American applicants, or requiring hair to be straightened, which would unduly burden many African American women who have naturally curly hair.

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

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5. What is intentional discrimination?

Intentional discrimination occurs when an employment decision is affected by the person’s race. It includes not only racial animosity, but also conscious or unconscious stereotypes about the abilities, traits, or performance of individuals of certain racial groups.

Example: An upscale retail establishment with a sophisticated clientele rejects an African American male applicant. The hiring manager stereotypically believes that African American males do not convey a clean-cut image and that they lack the soft skills needed to service customers well. A finding of discrimination would be warranted.

6. Can I be discriminated against because my spouse and friends are of different races?

No, the law prohibits discrimination based on:

  • Your marriage to or association with someone of a different race;
  • Membership in or association with ethnic-based organizations or groups;
  • Attendance or participation in schools, places of worship, or other cultural practices generally associated with certain minority groups, such as cultural dress or manner of speech, as long as the cultural practice or characteristic does not materially interfere with the ability to perform job duties.

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7. Can I be discriminated against by someone of the same race as me?

Yes, discrimination based on race by someone of the same race is still illegal. There is no requirement under the law that the victim and the perpetrator be of different races.

Example: A court in Texas found race discrimination occurred in a case alleging that a shuttle service discriminated against African American drivers in favor of native African drivers. The evidence revealed that the transportation shuttle service denied the African American drivers the more profitable routes, sent them to destinations where no passengers awaited pickup, and misappropriated their tips by giving them to the native African drivers.

8. Are racial jokes or slurs against the law?

It depends. Racial jokes or slurs may be considered a form of harassment, which courts have determined is a form of discrimination under the law. However, federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. The conduct must be sufficiently frequent or severe to create an intimidating, hostile, or offensive working environment, or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion. For more information, see our page on racial harassment.

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9. What is reverse discrimination and is it covered under Title VII?

Reverse discrimination is a term created to mean discrimination against members of a historical majority, or “advantaged,” group. However, it is not a legal term identified by U.S. courts. Because anti-discrimination laws were enacted to prevent discrimination against groups that were historically disadvantaged and denied opportunities in the workplace, there may be a perception that the same laws do not protect members of majority groups. However, anti-discrimination laws prohibit all forms of discrimination based on protected characteristics, regardless of whether a person belongs to a majority group.

Much of the opposition to affirmative action is based on what are called “reverse discrimination” and “unwarranted preferences.” However, very few employment discrimination cases pending before the Equal Employment Opportunities Commission are reverse discrimination cases. Under the law and interpretations by courts, anyone benefiting from affirmative action must have the relevant and valid job or educational qualifications.

If your employer has an affirmative action plan, it may help eliminate some of the barriers to advancement that racial minorities have faced historically. You may wish to consult with your company’s human resource department or your personnel handbook to learn more about how the plan may benefit you and other employees who are racial minorities.

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10. Can I be assigned to a particular kind of job, or to a certain neighborhood or territory because of my race?

It is against the law to limit, segregate, or classify employees or applicants for employment based on race in any way that could deprive them of employment opportunities or otherwise adversely affect their employment status.

It is a violation of Title VII if employees of a certain race or races are segregated by being physically isolated from other employees or customer contact. Title VII also prohibits assigning primarily minorities to predominantly minority establishments or geographic areas. It is illegal to exclude minorities from certain positions or to group or categorize employees or jobs so that minority workers generally hold certain jobs, or because of a belief that they should do so.

Consequently, an assignment or placement selected because of your race that segregates you or negatively affects your pay, status in the company, or ability to advance would be against the law. Yet, an assignment made for legitimate, nondiscriminatory reasons that do not negatively affect or segregate you would not be illegal.

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11. Can a job application ask me to identify my race?

Requesting Requiring pre-employment information that discloses or tends to disclose an applicant’s race suggests that race will be unlawfully used as a basis for hiring. Therefore, if members of minority groups are excluded from employment, asking for such information in the job application process is likely to be evidence of discrimination.

However, employers may have a legitimate need for information about their employees’ or applicants’ race for affirmative action purposes and/or to track applicant flow. One way to obtain racial information and guard against discriminatory selection is for employers to use “tear-off sheets” for the identification of an applicant’s race. After the applicant completes the application and the tear-off portion, the employer separates the tear-off sheet from the application and does not use it in the selection process.

Additionally, if a company has 100 employees or more, or is owned by/affiliated with a company with 100(+) employees, they are required by law to submit an Equal Employment Opportunity report (EEO-1) each year to the Equal Employment Opportunity Commission (EEOC). This report includes a lot of information (including employee statistics) that is reported in aggregate. That means they aren’t reporting anything about individuals, just about big picture numbers for the company overall (aggregate statistics). The company may decide to gather these stats during the hiring process just to make this reporting task easier. But unless you are hired, they won’t be sending your information anywhere.

The hiring manager should not see this info while going over applications and resumes.

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12. Can employers use testing or implement a policy that affects one race more than another?

Not if it is not job-related. Title VII makes illegal both intentional discrimination as well as job policies that appeal neutral but in fact are not job-related and disproportionately harm workers of certain races.

Example: A policy that requires a high school degree for all employees, which may disproportionately exclude African-Americans and Latinos. If a high school degree is not necessary to perform every position, such as those involving physical labor, then this policy might be illegal.

A policy that excludes individuals with sickle cell anemia tends to discriminate against African-American individuals and would be illegal unless proven to have a legitimate business purpose.

However, Yes, professionally developed tests may be used to make employment decisions if they do not discriminate on the basis of race. Employment tests that disproportionately exclude applicants/employees of a certain race must be validated.

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13. Is race ever a qualification for a certain job?

Yes, in very limited circumstances. Title VII makes an exception when age is an essential part of a particular job – also known by the legal term “bona fide occupational qualification” or BFOQ.

Example: If a company hires an actor to play the role of an African-American father, being African-American is a necessary part of the job or a BFOQ. However, an employer who claims a BFOQ exists for a particular job must be able to prove a person of a certain race is required because a worker’s ability to do the job is actually diminished if he or she is not a member of that race.

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14. What about policies that affect one race more than another, do they constitute discrimination?

Discrimination based on a natural physical characteristic associated with race, such as skin color, hair texture, or certain facial features is against the law, even though not all members of the race share the same characteristic. Title VII also makes it illegal to discriminate based on a condition that affects a certain race or tends to affect a certain race, unless the practice is job-related and necessary for business. As previously mentioned, since sickle cell anemia predominantly occurs among African-Americans, a policy that excludes individuals with sickle cell anemia must be job-related and necessary for business. Similarly, a “no-beard” employment policy may discriminate against African-American men who have a predisposition to pseudofolliculitis barbae (severe shaving bumps) and is illegal unless the policy is job-related and a business necessity.

If there are height and weight requirements, they must be necessary for the safe and efficient performance of job-related tasks, because such requirements may exclude or limit women and members of some racial and ethnic groups. An employer, therefore, must show that the requirement is necessary for the safe and efficient performance of job-related tasks. If there is a less restrictive way to accomplish the same goal other than a minimum height requirement, employers are required to use that alternative to avoid liability for discrimination.

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15. My company has an affirmative action plan. How can this affect me?

Affirmative action goals and timetables are targets for equality and a level playing field. Like goals for profits or productivity, they mark and measure progress, but do not carry legal penalties. Quotas are illegal unless they are court ordered as a remedy for discrimination. Your company’s affirmative action plan may be voluntary or may be required by law if your company has contracts with federal, state or local governments or has a past history of discrimination.

Much of the opposition to affirmative action is based on what are called “reverse discrimination” and “unwarranted preferences.” However, less than 2 percent of the 91,000 employment discrimination cases pending before the Equal Employment Opportunities Commission are reverse discrimination cases. Under the law as written and interpreted by the courts, anyone benefiting from affirmative action must have relevant and valid job or educational qualifications.

If your employer has an affirmative action plan, it may help eliminate some of the barriers to advancement that racial minorities have faced historically, maybe even working for your employer. You may wish to consult with your company’s human resource department or your personnel handbook to learn more about how the plan may benefit you and other employees who are racial minorities.

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16. What is the difference between race discrimination and racial harassment?

Racial harassment is a form of race discrimination, and that is a violation of Title VII. Although Title VII does not specifically use the words “racial harassment,” courts have held that racial harassment is race discrimination and thus violates the law.

As noted throughout this fact sheet, there are many forms of race discrimination that are not racial harassment, such as discrimination in hiring, firing, promotions or benefits, pay discrimination, and racial stereotyping.

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17. What if I don’t have direct evidence of race discrimination, do I lose my case?

No, most of the time, it is difficult to come up with direct evidence of discrimination. You can prove racial discrimination indirectly. You must make a prima facie case of discrimination, which is Latin for “on its face” or “at first glance.” A race discrimination lawsuit 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, or subject to a negative job action.
  • The person who received the job or benefit was a different race, or the company continued to search for other “qualified” applicants

Example: If you were denied a promotion and you believe it was because you are Mexican, you would have to prove that you qualified for the promotion, didn’t get it, and the person who got it is not Mexican.

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18. Who enforces the law?

The Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for investigating charges of job discrimination relating to race discrimination in workplaces of 15 or more employees. Most states have agencies that enforce state laws against discrimination. For more information, see question 22 below.

Additionally, at both the federal and state level, time is a key consideration. There are often strict timelines for reporting and filing claims of racial discrimination, so if you feel you have been discriminated against, it may be best to contact an employment attorney in your area as soon as possible.

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19. What are the remedies available to me?

Victims of race discrimination can recover remedies that include:

  • back pay
  • hiring
  • promotion
  • reinstatement
  • front pay
  • compensatory damages (emotional pain and suffering)
  • punitive damages (damages to punish the employer)
  • other actions that will make an individual “whole” (in the condition she or he would have been in if not the discrimination had never occurred).

Remedies also may include payment of:

  • attorneys’ fees
  • expert witness fees
  • court costs

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free from discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions regarding the person(s) responsible for the discrimination, take steps to minimize the chance it will happen again, as well as stop the specific discriminatory practices in the case. Your state law may allow for greater or different remedies than federal law. For more information, see question 22 below.

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20. What is the difference between the federal anti-discrimination laws and state laws?

State legislation covering workplace generally mirrors federal law in prohibiting discrimination based on race. The primary differences are in the procedures used and agencies contacted to make a claim of discrimination. For more information, see question 22 below.

21. How can I file a complaint?

For more information on filing a complaint for race discrimination, select your state from the map or list below.

united states map

Washington Oregon Idaho Montana North Dakota Nevada Utah Arizona California New Mexico Colorado Wyoming South Dakota Nebraska Kansas Texas Oklahoma Louisiana Mississippi Arkansas Alabama Tennessee Missouri Iowa Minnesota Wisconsin Michigan Illinois Indiana Florida Georgia South Carolina North Carolina Virginia Kentucky Ohio West Virginia Pennsylvania New York Vermont Massachusetts Rhode Island Connecticut New Jersey Delaware Maryland Maine New Hampshire District of Columbia Alaska Hawaii

 

22. More Information

EEOC Facts About Race/Color Discrimination
AFL-CIO – Discrimination: Race or Ethnicity
Leadership Conference for Civil Rights

 

 

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer

Employment and Discrimination: Exploring the Climate of Workplace Discrimination from 1997 to 2018

HUMAN RESOURCES
ARTICLE
08/01/2019
Source: Paychex

Across the U.S., workplace discrimination on the basis of race, gender, religion, pregnancy, and disability is illegal. Of course, while all employers must follow federal laws regarding employment discrimination, specific state laws pertaining to hiring and employment prejudices can vary greatly from region to region.

As an example, 48 states have drafted equal pay laws. While Alabama and Mississippi have passed no such legislation, Georgia’s law only applies to businesses with 10 or more employees. Despite both state and federal laws addressing discrimination based on race, studies show hiring bias against black and Hispanic employees hasn’t improved at all in over two decades.

For a better understanding of employment discrimination in America today, we analyzed 21 years of data from the Equal Employment Opportunity Commission (EEOC) Enforcement & Litigation Statistics.Read on as we break down the more than 1.8 million complaints filed with the EEOC since 1997.

Concerns in the workplace

From 1997 to 2018 (the last year data was available), there were 1,889,631 discrimination complaints filed with the EEOC. In 2017, a majority of these complaints were categorized as retaliation (49%), race (34%), disability (32%), or sex (over 30%).

Sixty-four percent were officially dismissed as having found no issue after investigation, and around 18% were closed for administrative reasons. According to the EEOC, cases closed for administrative reasons may include the charging party deciding not to pursue their case, lack of communication, or a withdrawal request from the charging party.

Discrimination rates, by state

A total of 916,623 discrimination cases were filed with the EEOC between 2009 and 2018. Of these cases, the highest rates of discrimination complaints occurred in Southern states. Complaints of discrimination and bias in the workplace were highest in Alabama (62.2 complaints per 100,000 residents), Mississippi (60.8), Arkansas (51.7), and Georgia (50.3).

While race claims are often the most commonly filed with the EEOC, they have the lowest percentage of success (15%) in terms of legal action or reaching a settlement.

Discrimination complaints between 2009 and 2018 were the lowest in Maine (2.5), Montana (2.6), New Hampshire (4.0), Idaho (4.3), and Nebraska (4.3).

Descriptions according to the EEOC

As we take a more detailed look at employment discrimination in America, it’s important to understand the different types of discrimination people encounter. For age discrimination, color and race discrimination, equal pay discrimination, national origin discrimination, religious discrimination, and sex discrimination, we’ve included descriptions according to the U.S. Equal Employment Opportunity Commission.

Now, we’ll explore each type of discrimination more closely, including which states have the highest percentage of complaints.

Statewide discrimination complaints

Alabama had the highest rate of employment discrimination complaints per capita, but it also had the most complaints regarding color and race (8.3), sex (9.7), and equal pay discrimination (1.1).

Even though pay discrimination based on sex has been illegal since the ’60s, critics argue it can be difficult to prove under normal circumstances. In Alabama, no state law protects women from pay inequity.

New Mexico nearly tied with Alabama for the most complaints centered on equal pay discrimination and led the country (along with Alabama) from 2009 to 2018 for age and national origin discrimination complaints. In 2016, there were 20,857 claims of age discrimination filed across the country, making it the ninth-consecutive year where employees alleged more than 20,000 cases of ageism in the U.S. workforce.

Making progress

While some states saw a decline in the number of discrimination complaints filed with the EEOC between 2009 and 2018, others saw dramatic increases. Despite a decrease in the number of color and race discrimination complaints in states like Minnesota (nearly 69%) and Oregon (57%), increases were much more substantial in states including Utah (almost 104%) and Connecticut (56%).

Similarly, the number of sex discrimination complaints between 2009 and 2018 more than doubled in Nebraska, followed by a nearly 109% increase in Massachusetts and 80% in Utah. Utah also ranked in the top five for the most complaints regarding age discrimination, color and race discrimination, national origin discrimination, and sex discrimination. Roughly 4 in 10 working women say they’ve experienced some form of discrimination at work due to their gender, including those who earn less than men for the same job, those who are treated as incompetent, and those who experience repeated slights in the workplace.

Changes in workplace discrimination

You might think with federal laws like the Equal Pay Act of 1963 or the Age Discrimination in Employment Act (ADEA), the rules surrounding workplace discrimination would be cut and dry. However, employees should be cognizant of how discrimination still exists in their industry. Shady hiring practices, unfair promotional structures, unequal pay, and retaliatory behavior are all signs of discrimination.

Between 1997 and 2018, there were over 710,500 discrimination complaints filed to the EEOC for one category: color and race. While the total number of cases dipped slightly from 2002 to 2005, there was an intense spike in color and race discrimination charges in 2006 that continued to climb into 2010. The total number of color and race discrimination charges remains higher than any other category of complaints.

Sex (570,360), age (422,866), and national origin discrimination complaints (198,689) also accounted for the highest number of discriminatory claims filed with the EEOC between 1997 and 2018.

Frequent cases of discrimination

Analysts suggest there are many reasons why the total number of discrimination claims continues to rise. From heightened awareness of what’s qualified as illegal behavior to increased coverage in the news of what discrimination looks like, more people may feel compelled to bring their concerns to the EEOC.

People reporting certain forms of workplace discrimination may experience similar issues. Among religious discrimination claims, reasonable accommodation was cited seven times more frequently than in any other claim. In 2019, a jury awarded one employee over $21 million in damages after determining that her employer, a Miami hotel, violated her religious rights by demanding she work on Sundays and firing her for noncompliance. After filing her complaint with the EEOC, the organization issued the employee a “right to sue” notice, thus supporting her legal claim against the company.

Discrimination based on an employee’s age can take many forms. Discrimination centered on age had the highest percentage of discriminatory firings according to the EEOC. Studies suggest 61% of employees over the age of 45 have either personally experienced or seen discrimination at work, and that can include the way they’re treated by existing employers, when looking for new work, and when terminated from existing employment.

Final resolutions

Discrimination in the workplace may not be uncommon, but it can be very difficult to prove. According to the AARP, nearly 2 in 3 employees between the ages of 55 and 65 cited age as a barrier to employment. Despite the high volume of complaints surrounding ageism, just 16% of cases focused on age discrimination merited a resolution for the charging party. At most, 22% of cases focused on equal pay led to a resolution, and fewer than 16% of cases that focused on color and race experienced similar results.

Between 1997 and 2018, the average case of discrimination related to equal pay compensated the charging party nearly $31,000. Combined, equal pay cases resulted in $157 million in monetary benefits. Both religion and color and race discrimination cases averaged the lowest overall monetary benefits — $13,000 and $14,900, respectively.

Protecting your employees

The U.S. Department of Labor enforces roughly 180 laws designed to safeguard workers from discrimination and bias, and the U.S. Equal Employment Opportunity Commission facilitates additional layers of protection for the same purpose. Still, despite federal and state laws geared toward illuminating discrimination in the workplace, more than 1.8 million cases have been filed with the EEOC in the last two decades. While a majority of charges brought to the EEOC were either unfounded or closed for administrative reasons, there’s been no major decrease in the total number of discrimination complaints reported to the EEOC since 1997.

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Methodology

The data presented in this project are from the Equal Employment Opportunity Commission (EEOC) Enforcement & Litigation Statistics. The most recent year of the data is 2018. It was accessed in July of 2019 for use in this project. The categories explored were age, color, race, equal pay, national origin, religion, and sex discrimination. Age discrimination reports fall under the Age Discrimination in Employment Act (ADEA) category in the original data. Equal pay discrimination falls under the Equal Pay Act (EPA) category in the original data.

The total number of cases was calculated using the “Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2018”data tables. The figure calculated only reflects the total number of individual complaints filed. It is possible for one individual to report multiple types of discrimination, and those multiple reports are not included in the total figure: 1,889,631.

For the graphic titled “Outcomes of Investigations,”the categories were altered for readability. These were the changes:

  • “Investigation found no issue” represents the EEOC’s “No Reasonable Cause”
  • “Closed for administrative reasons” represents the EEOC’s “Administrative Closures”
  • “Settlement” represents the EEOC’s “Settlements”
  • “Complaint withdrawn by charging party” represents the EEOC’s “Withdrawals w/Benefits”
  • “Considered for litigation” represents the EEOC’s “Unsuccessful Conciliations”
  • “Informal resolution reached between parties” represents the EEOC’s “Successful Conciliations”

Per-capita calculations per state were calculated using American census population data for 2018. The calculation is as follows: (Total number of discrimination reports per state/State population)*100,000.

Percentage change calculations for the graphic titled “Changes in Discrimination Complaints Over Time”are as follows: (Total number of complaints in 2018 – Total number of complaints in 2009)/Total number of complaints in 2009.

Average payout per charge calculations were done as follows: Total monetary benefits/Total number of merit resolutions per type of discrimination.

For graphics exploring the data by state, the available years were 2009 to 2018. For all other graphics, the data encompass 1997 to 2018.

The data were not statistically tested. Future research could also explore the current climate of disability, genetics, pregnancy, or retaliation discrimination complaints in the workplace — topics that were not explored in this analysis.

Sources

Fair use statement

For millions of people across the country, workplace discrimination is a real concern. The more people understand the laws, the more likely they are to report bias and discrimination. Help share the results of this study with your readers for any noncommercial use with the inclusion of a link back to this page.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

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