Color, ethnic origin, or race discrimination involves treating an employee or applicant unfavorably because he or she is of a certain race or because he or she has personal characteristics associated with a particular race (such as hair texture, skin color, or certain facial features).
With regard to workplace harassment, the law forbids such discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. When an employer intentionally singles out applicants or employees of a particular race, ethnic origin or color for less favorable treatment, that is known as “disparate treatment” and is against the law.
Workplace harassment is also illegal when based on a person’s race, ethnic origin or color.
To establish a case of a racially hostile work environment, the employee must show that he or she is a member of a protected class, he or she was subjected to unwelcome racial or ethnic harassment, and the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment.
Workplace harassment can include, for example, racial slurs, offensive or derogatory remarks about a person’s race or color, the display of racially-offensive symbols, or singling someone out for poor treatment because of their race or ethnicity.
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment. Like the test for sexual harassment, the more severe or frequent the offensive conduct the more likely it will be deemed to create a hostile work environment. Whether workplace harassment is sufficiently “severe” or “pervasive” is assessed from the perspective of a reasonable person belonging to the racial or ethnic group of the victim.
Thus, to establish a case of a racially hostile work environment, the employee must show that he or she is a member of a protected class, he or she was subjected to unwelcome racial or ethnic harassment, and the harassment unreasonably interfered with his or her work performance by creating an intimidating, hostile, or offensive work environment.
As with sexual harassment claims, an employer has a duty to prevent and remedy instances of racial and national origin harassment.
An employer who fails to remedy problems of which it has actual or constructive knowledge may be held liable for workplace harassment despite the existence of a formal policy against harassment.
So, “actual or constructive knowledge” by the company of the harassment is key. Since most employers have a written policy against discrimination and harassment, there should also be a procedure for the victim or other employees to follow when reporting such conduct. Its important to follow the company’s written procedure when you believe that discrimination or harassment has occurred. If there is no written policy, discrimination should be reported to a supervisor, manager, human resource personnel, or someone with management or decision making ability.
Failing to follow the company’s reporting policy or making decision makers aware of the problem can provide the company with the excuse that it would have done something about the discrimination or harassment, if it only knew. Don’t give your employer that defense.
When reporting discrimination and harassment, make a written record. First, you should record the date, time and place of the discrimination or harassment, the person(s) involved and witnesses. Keep this written record at home, along with a copy of the offending material, e.g., picture, drawing, etc. Then, when reporting the conduct, do it in an email, note, memo or letter and keep a copy at home. If you reported it verbally, just follow up with a written statement to the person you reported it to, and, again, keep a copy at home.
Reporting workplace discrimination and harassment is not only the right thing to do, it also protects you from retaliation. Once you have reported what you believe is discrimination or workplace harassment, it is illegal for the employer to retaliate against you in any way.
If you feel that your employer has discriminated against you or you experience workplace harassment, it’s important to speak to an employment attorney who specializes in workplace harassment to protect your rights. Discrimination and workplace harassment is serious, but if you do not act quickly, your rights and ability to recover damages simply expire.