Prove Racial Discrimination in the United States

In the United States, it is illegal to discriminate in employment practices on the basis of race. Title VII of the Civil Rights Act of 1964 (Title VII) is the federal statute that outlaws discriminatory practices. If you think you are being discriminated against on the basis of race during recruiting, hiring, or promotion, you can take certain actions to prove your case. Start by identifying the boundaries of racial discrimination. Then you can gather evidence, file a charge with the Equal Employment Opportunity Commission (EEOC), and even go to court.

Steps

Identifying Racial Discrimination

1. Hire an attorney. As soon as you suspect you have been the victim of racial discrimination, contact an employment law attorney. Look for an attorney that specializes in discrimination cases. To find a qualified attorney, contact your state bar association. Every state should offer a lawyer referral service. For example, in California, you can get individual assistance that will guide you through the process. After answering some questions, you will be referred to a qualified attorney in your area.
   • Before you hire an attorney, conduct initial consultations with your top choices. Ask them about their experience, your potential case, and fee arrangements.
2. Define race. Race is not defined under Title VII. However, the Office of Management and Budget (OMB) provides five racial categories, which include American Indian or Alaska Native, Asian, African American or Black, Native Hawaiian or other Pacific Islander, and White. Furthermore, Title VII generally encompasses:
   • Ancestry;
   • Physical characteristics (e.g., skin color, hair, facial features, height, and weight);
   • Race-linked illnesses (e.g., sickle cell anemia);
   • Culture (e.g., name, dress, grooming practices, accent, and manner of speech);
   • Perception; and
   • Association (e.g., a white person being discriminated against because they are married to an African American).
3. Look for disparate treatment discrimination. Race cases generally fall within a category called "disparate treatment discrimination," which occurs when race is a motivating factor in how you are treated. If race was all or part of the employer's motivation for their decision, they are violating Title VII. In addition, the employer can not make a racially motivated decision based on business concerns (e.g., concerns about employee relations, or a perceived negative customer reaction).
   • The statute covers both conscious and unconscious motivations (e.g., stereotypes you might not know you hold). The discrimination against you does not have to be overt, or even known to the employer, in order to be actionable.
   • An example of this type of case may involve a white employer not hiring a black applicant because of the color of their skin.
4. Recognize disparate impact discrimination. Less common race cases take the form of "disparate impact discrimination," which occurs when a neutral policy or practice has a negative impact on certain racial groups. In addition, you must be able to show that the policy or practice is not job-related or that there is a less discriminatory alternative that the employer has refused to adopt.
   • An example of this type of case may involve an employer with a strict no beard policy. Assume that employer fires an African American driver for having a beard. However, the African American driver suffers from pseudofolliculitis barbae, which is a skin condition that occurs primarily in African American men. As a result of the condition, the driver cannot shave at all. If the driver challenges the policy, the employer would have to prove the policy is job-related and a business necessity.

Gathering Evidence

1. Determine what to look for. Evidence in race discrimination cases can be hard to come by. A lot of times you will not know why an employer made the decision they did. However, you should generally look for the following:
   • Race-related statements made by the employer. These statements may be overt racial slurs or may be hidden code words.
   • Comparative treatment evidence. This is any evidence that helps you show that you were treated differently than similarly situated people of a different race.
   • Relevant background facts. Racial discrimination does not occur in a vacuum. Look for evidence of how the employer has treated other employees. You might find a pattern of race-related attitudes or a poor work environment. An example of this may include evidence that the employer allows their employees to make racial jokes without repercussions.
   • Relevant personnel policies. If the employer follows a relevant personnel policy, it may be evidence that there was no racial motive. However, if that employer did not follow an applicable policy, it may be evidence there was a racial motive.
   • The decision maker's race.
   • Statistical evidence.
2. Contact witnesses. To find the evidence you are looking for, start by contacting potential witnesses. These people could be current employees, friends of the employer, or the employer herself. When you talk with witnesses, especially the employer, you and your attorney need to gauge their credibility. If the employer's explanation does not seem believable, the evidence of racial discrimination is much stronger than if the employer is believable. Credibility can be undermined if an explanation does not match the facts or if it is vague.
3. Collect documents. Request documents or get access to documents that you think will help your case. You should, at the very least, obtain the following:
   • Your personnel file. These documents will include your application and any notes the interviewer took; any internal documents discussing your application; your employment contract; your job description; performance reviews; award; and letters of reference.
   • Documents relating to damages. Get your salary information, including fringe benefits, so you can calculate the amount of damages you should be awarded. Try to find W-2s, 1099s, 401(k) plans, and health insurance information.
   • Party statements. These documents may take the form of emails, internal memoranda, notices of termination, meeting notes, and exit interview notes.
   • Rules, policies, procedures, handbooks, and manuals. You will use these documents when the employer tries to justify their actions. For example, if an employer justifies their actions saying your performance reviews were sub-par, you will want to know what procedure they have in place for performance reviews, and whether those procedures were followed.
   • Other charges and suits. You may be able to find evidence of past lawsuits against the employer you are investigating. If there are cases out there, you may be able to get information from those cases. One great example would be copies of depositions.
4. Request statistical data. Statistical evidence can help you prove an employer's pattern or practice of racial discrimination (i.e., racial discrimination is standard operating procedure). Statistical data can be hard to come by unless the employer is required to file EEO-1 Reports. These reports must be filed if the private employer has 100 or more employers. A number of federal employers are required to fill out these reports as well.
   • EEO-1 Reports require employers to divulge racial information about their employees. It includes different job categories and how many individuals from different races fulfill those roles. The employer will then compare the current year's information to information from past years.

Filing a Charge of Discrimination Against a Private Employer

1. Prepare your charge in a timely manner. If you think you have enough evidence to substantiate a claim of racial discrimination, you will need to file a charge with the EEOC. If you are filing a charge against a private employer, you need to file a charge within 180 days from the day the discrimination takes place.
   • This time-frame may be extended to 300 days if a state agency enforces a similar race discrimination law.
   • These time limits will generally not be extended.
2. Access the EEOC's Online Assessment System. While the EEOC does not accept charges online, they do have an online assessment system that will help you determine if filing a charge is right for you. Once you complete the assessment questionnaire, you can print out the results and use it to begin the filing process.
3. File your charge in person or by mail. EEOC charges must be filed in person or through the mail. The best way to proceed is by visiting a local EEOC field office near you. Bring any information you think will help the EEOC understand your case. If you are filing through the mail, send the following information to your local EEOC office:
   • Your name, address, and telephone number;
   • The name, address, and telephone number of the employer you are filing a charge against;
   • The number of employees employed there;
   • A short description of what you think constituted racial discrimination;
   • When the events took place;
   • Why you believe you were discriminated against; and
   • Your signature.
4. Agree to mediation. If both you and the employer agree to mediation, you can try and resolve the issue before an investigation occurs. If mediation works, you may be able to resolve the case without having to go any further.
5. Have your charge investigated. The EEOC will investigate your charge in various ways depending on the facts of your case. They may visit your employer, talk with you and other interested parties, and they may review documents. The investigation process can take six months or longer.
   • If an employer will not cooperate with the investigation, the EEOC may issue administrative subpoenas in order to force the employer to cooperate.
6. Act appropriately after your charge is investigated. If the EEOC does not find a violation of the law, they will issue you a Notice-of-Right-to-Sue. This notice gives you the ability to sue in a federal court. If a violation is found, the EEOC will attempt to settle with the employer. If no settlement is reached, your case will be referred to the EEOC's legal staff. They will decide whether to file a lawsuit on your behalf. If they do not file a lawsuit, you will be given a Notice-of-Right-to-Sue.

Filing a Charge of Discrimination Against a Federal Employer

1. Contact an EEO counselor. If you want to file a charge against a federal employer, you need to contact an EEO counselor at the agency you applied with or worked for. You must contact the EEO counselor within 45 days from the day the discrimination occurred. The EEO counselor will offer alternative dispute resolution programs, but if you cannot settle the dispute, you will need to file a formal complaint.
2. File a formal complaint. You will file a formal complaint with the help of your EEO counselor. Once you do, the agency will decide whether to investigate the claim or dismiss it. If the agency investigates the claim, they have 180 days to do so.
   • When the investigation is completed, the agency will issue a notice allowing you to request a hearing in front of the EEOC or ask the agency to issue a decision concluding whether discrimination occurred.
3. Ask the agency to issue a decision. If you ask the agency to issue a decision and they find that no discrimination took place, or if you disagree with a part of the decision, you can appeal to the EEOC or to federal court.
4. Request a hearing. If you want a hearing, you must request one within 30 days of receiving the investigation findings. At the hearing, you will plead your case in front of an administrative law judge. The judge will make a finding and order relief if discrimination is found. The judge's findings and order will then be sent to the agency and they will decide whether to uphold the decision or not.
   • The agency will have 40 days to make their final decision.
5. File an appeal. If the agency declines to follow the administrative law judge's decision, you will be able to appeal to the EEOC. You must do this within 30 days of receiving the agency's decision. The EEOC will review all the materials and make a determination.
6. Request reconsideration. If you do not agree with the EEOC's determination, you can ask for a reconsideration. Your request will only be accepted if you can show there was a mistake of fact or law. This request must happen within 30 days of receiving the appeal decision.
   • If a reconsideration is granted, the decision that comes out of it is considered the final agency action.

Going to Court

1. File a lawsuit. If you have exhausted all administrative remedies and you are still not satisfied, you may be able to file a lawsuit in federal court. In most cases, to file a federal lawsuit, you must have received a Notice-of-Right-to-Sue. You must file your lawsuit within 90 days of receiving this notice. During the administrative process, you may be able to file a lawsuit if:
   • 180 days have passed since you filed your complaint and the agency has not filed a decision and no appeal has been filed; or
   • 180 days have passed since you filed your appeal with the EEOC and they have not issued a decision.
2. Offer direct evidence. Direct evidence is extremely rare in racial discrimination cases. However, if you have it, offer it in court. Direct evidence is an action or statement that directly reflects a discriminatory attitude. If you have direct evidence, there is an automatic finding of discrimination against the employer.
   • An example of direct evidence would be a recording of the employer saying you are being fired because of your skin color.
3. Make a "prima facie" case of racial discrimination. If you do not have direct evidence, you will need to offer circumstantial evidence in court. To make a circumstantial case in court, you will need to first make a prima facie case of racial discrimination.
   • If you are suing under a theory of disparate treatment, you will need to show: (1) that you are a member of a protected racial class; (2) that you applied and were qualified for the job; (3) you were rejected; and (4) the employer continued to solicit applications with qualifications equal to yours.
   • If you are suing under a theory of disparate impact, you will need to show: (1) the existence of a disparity; (2) the disparity was caused by a specific policy or practice; (3) that the challenged policy was not justified; and (4) that less discriminatory measures were available and would have been just as effective.
4. Allow the employer to respond. The employer will have a chance to rebut your prima facie case in court. To do so, the employer must provide a non-discriminatory and legitimate reason for the challenged action. The employer must simply articulate a reason, they do not have to prove it was the actual reason for the decision.
5. Discredit the employer. You will then have an opportunity to discredit the employer's reasoning. You can do this by proving the employer's reasoning is not factually correct or that it was not the true reason for their decision.
   • If you can do this, you will win your federal lawsuit and will receive a judgment in your favor.

Sources and Citations

See also

• Talk About Race
• Stop Being Racist
• Deal With Racism
• Tell if You Are a Racist
• Overcome Racism
• Deal With Racist Parents
• Deal With Someone Who Calls You a Racial Name