Racial Discrimination in the Workplace

Racial discrimination and racism are still sensitive topics in today's workplace. Small businesses must know the laws protecting workers' rights to a harassment-free workplace.

Even if your business does not have a human resources department, you must follow anti-discrimination laws. This article reviews the specific laws against race discrimination and how to recognize it in your workplace.

Racial Discrimination and Racism

Title VII of the Civil Rights Act of 1964 prohibits racial discrimination in the workplace. It also prohibits discrimination against workers by national origin, gender, or religion. There may be some overlap between these types of discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC) investigates discrimination in employment settings. Treating someone differently based on their race in any of the following can qualify as discrimination:

• Hiring
• Compensation
• Job benefits, including insurance and pensions
• Work assignments
• Performance evaluations
• Training and promotions
• Disciplinary actions
• Layoffs and termination

Any employment decision based on stereotypes is racial discrimination. Job performance, not personal bias, must determine evaluations, promotions, or demotions.

Sometimes, neutral policies intended to prevent racial discrimination can also be illegal. For example, assigning all workers of one race to one work area to avoid harassment. Even done with the best intentions, this policy has a disparate impact.

Race-Related Characteristics and Conditions

Any personal trait that cannot change is an immutable characteristic. Discrimination based on immutable characteristics associated with race violates Title VII.

The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination based on genetic conditions such as sickle-cell anemia, which is common among people of African descent. Denying employment to someone with such a condition would be illegal unless the job conditions required it.

Employers also cannot discriminate based on other race-related characteristics, such as:

• Hair texture
• Facial features
• Skin color

These traits are cosmetic and have little to do with job performance. Whether straight or dreadlocks, long hair should only be an issue if the employee works around machinery or food. Then, the policy should be the same for all workers for safety and sanitary reasons.

Harassment

Harassment is any unfair conduct that interferes with an employee's work performance. If the harassment becomes severe enough, it might create a hostile work environment.

Although most people think of sexual harassment, that is not the only kind. Any repeated, unwanted negative behavior is harassment. Overt harassment, such as racial slurs, is still common. A less obvious type of harassment known as microaggression is becoming frequent.

Microaggressions are conscious or unconscious words or actions that negatively target an individual. Many microaggressions are nonverbal, making them harder to spot. They can also be part of regular speech patterns, making them difficult to identify. Some examples of microaggressions include:

• Statements that belittle or stereotype a group: For example, some political pundits complimented President Barack Obama as being "well-spoken and articulate," but this is a common microaggression based on stereotypes.
• Nonverbal actions: Eye-rolling, turning away, crossing arms, or holding belongings closer when certain individuals approach are all forms of microaggression.
• Visual signals: Confederate flags, Nazi symbols, and other racially-charged images can be harassment if they are offensive to others in the office, even if the items belong to a co-worker.

Although microaggressions alone are not grounds for an EEOC complaint, they may contribute to a claim. Overt harassment combined with microaggressions can make working conditions intolerable.

Job Applications and Pre-Employment Screening

Small business owners need to balance workplace diversity and harmony. Some job descriptions may discriminate against members of a particular race or ethnicity. Small businesses are exempt from affirmative action hiring, but they must follow equal-opportunity hiring practices.

Employment discrimination appears early in the hiring process. Studies have shown that human resources or business owners were likelier to hire someone with a name that sounds like it belongs to someone who's White. One study found that this trait is especially common during rushed hiring processes.

Businesses can help prevent this issue by allocating enough time to review resumes and applications. In doing so, they protect themselves from discrimination complaints.

Asking for an applicant's race or ethnicity during the employment screening process can appear biased. However, some employers gather this information for affirmative action purposes. If that's the case, they should keep it separate from the other application information.

The federal government has not provided guidance on the current trend toward personality tests such as the MBTI. Some agencies have raised concerns these tests may discriminate against disabled individuals. There is a potential for racial bias in these tests, but no federal law addresses their use.

State and Local Laws

Most state laws mirror federal laws and provide protections against racial discrimination. Nearly all local governments have a version of the EEOC that handles discrimination claims within the state. Only Alabama has no state laws or agencies enforcing employment discrimination laws.

Some states, such as California, provide greater protections than federal law. The California Department of Fair Employment and Housing (DFEH) oversees all discrimination claims for businesses with more than five employees.

Business owners should consult local attorneys with any concerns about discrimination and employment. Your state laws may differ from federal requirements.

Other Anti-discrimination Laws

Racial discrimination is not the only type of discrimination small business owners should avoid. Other federal laws that affect small businesses include:

• Americans with Disabilities Act (ADA)
• Age Discrimination in Employment Act (ADEA)
• Family Medical Leave Act (FMLA)
• Equal Pay Act
• Fair Labor Standards Act

When You Need Legal Advice

Racial discrimination cases are fact-sensitive and take time to review. A local employment attorney who understands discrimination claims can help you with the process. Working with an expert in employment law can help you achieve the best outcome possible.