Labor and Employment

Race or Color Discrimination in Employment

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley
Federal law, and the laws of most states, prohibit employers from making employment decisions based on race or color.

Race and color discrimination have been illegal in this country since the Reconstruction Era. From the time Congress passed the Civil Rights Act of 1964, employers with at least 15 employees have been prohibited from making employment decisions based on the race or skin color of employees and applicants. Many state and local laws also prohibit race discrimination; some of these laws apply to smaller employers.

Unfortunately, however, this doesn’t mean that race discrimination has been eliminated from the workplace. Read on to learn more about race and color discrimination—and what to do if you believe you are facing discriminatory treatment.

What Is Race Discrimination?

When an employer refuses to promote African Americans to management positions, screens out Latino applicants, or fires an employee because “the company has too many Asians in public-facing positions,” that’s race discrimination. Race discrimination is prohibited at any point in the employment relationship, from applications, interviews, and hiring to benefits, promotions, discipline, layoffs, and severance packages.

Although employers are allowed to make decisions based on other protected characteristic (such as sex or religion) in certain limited circumstances, employers may never make job decisions based on race. For example, an employer can take advantage of a legal exception to the usual prohibition on sex discrimination and hire only women to work in a women’s fitting room or changing area, if that’s a “bona fide occupational qualification” (BFOQ)—meaning that only women can do that job in a way that does not invade the privacy of customers. However, there is no BFOQ for race. In other words, race is never an acceptable basis for job decisions.

What Is Color Discrimination?

Color discrimination occurs when an employer makes decisions based on an employee’s skin color. For example, an employer is not allowed to favor African Americans with lighter skin color for customer service positions, while placing African Americans with darker skin in the storeroom and back office.

Harassment Is Also Illegal

The same laws that prohibit race and color discrimination also prohibit harassment based on these traits. Harassment occurs when an employee is subjected to unwelcome conduct, based on race or color, that the employee either has to endure as a condition of employment or that is severe or frequent enough to create a hostile working environment. For example, an African American employee would have a racial harassment claim if a group of coworkers made racist comments about African Americans, told jokes about lynching, and hung a noose in the employee’s work space. (For more information, see our page on employment discrimination and harassment.)

What to Do If You Are Facing Discrimination or Harassment

If you believe you are being treated differently because of your race or color, talk to an experienced employment lawyer right away. You will need to take certain steps to protect your job and assert your rights. For example, you should begin keeping notes on every workplace decision or comment that appears to be discriminatory, including when it happened and who was involved. A lawyer can help you figure out how best to document your situation.

You should also use your employer’s complaint process to make your concerns known. The law prohibits your employer from retaliating against you for complaining about discrimination or harassment. Having a lawyer on your side will help you enforce this right—or, if necessary, complain that it has been violated.

Before you can file a discrimination or harassment lawsuit, you will also need to file a claim with the federal Equal Employment Opportunity Commission (EEOC) or your state’s fair employment practices agency. A lawyer can help you complete the paperwork, participate in the investigation, negotiate a settlement—or if necessary, file a lawsuit.

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