Racial or ethnic discrimination at work can have terrible consequences. Reduced pay and benefits, the threat or reality of termination, exclusion from important meetings or assignments, and lost promotions can cause financial and emotional harm.

Yet there are many misconceptions about race discrimination law. First, there are ideas about how narrow discrimination law can be. Second, there are wrong perceptions that an employee has to be fired to be discriminated against. Third, there are misconceptions about the need for a “smoking gun” as to a racist motive.

Discrimination on Race in the Workplace: What Is It?

Race discrimination is not necessarily its own separate area of law. The Civil Rights Act of 1866 and the Enforcement Act of 1870 referred to race or color. The Civil Rights Act of 1964 referred to discrimination on the basis of race, color, national origin, religion, or sex. Not understanding the scope of discrimination law can be one misconception people have about it.

Race, for purposes of federal law, involves the familiar categories developed by the Office of Management and Budget in 1977: Black or African-American, Hispanic or Latino/Latina/Latinx, Asian-American or Pacific Islander, Native American or American Indian, and White.

Color is a little different. Color can vary even within a race. Therefore, for federal purposes courts have said that color discrimination where the hue of the employee’s skin is the cause of the discrimination, such as when a “dark-colored African-American individual is discriminated against in favor of a light-colored African-American individual.”

National origin sometimes relates to race or color, but sometimes does not. The federal racial categories are sometimes linked to the origin of a person’s family or ancestors, in terms of nationality or continent. As a result, race may overlap sometimes with nationality or ethnicity. Ethnicity relates to language and culture as well as identity, including a cultural heritage that helps form one’s identity.

Religion, creed, sexual orientation, military status, migration status, citizenship status, marital or parental status, gender, gender identity, and disability status are also protected from discrimination under New York law.

Race Discrimination in the Workplace Examples

The second misconception is that a worker has to be fired to have a discrimination case.

There are several types of race discrimination in the workplace. One which is commonly discussed is different treatment or “disparate” treatment. It happens when someone is treated differently than someone else similarly situated, and race was a motivating factor, or a significant reason other than the merits why the two persons were treated differently or disparately.

The different treatment can concern workplace issues other than getting fired or laid off. It can be about pay, benefits, promotions, positions, transfers, time off, or other terms and conditions of employment.

Another type is disparate impact discrimination. It was developed for instance in which an apparently neutral standard or criterion has an effect which is strongly connected to the race of the persons, such as employees, to whom it is applied.

A third type is racial harassment. It happens when an employee, customer, or other protected person is subject to unwelcome verbal or physical conduct based on race that is severe or pervasive enough to make the employment unattractive or painful, and to bring about an abusive work environment.

Cases of Race Discrimination in the Workplace

The last misunderstanding that sometimes exists is how much evidence a person needs to be compensated for discrimination in the workplace.

The law recognizes that an employer or supervisor who is engaged in discrimination often will not admit this openly. Therefore, circumstantial evidence and cross-examination may be used to prove a case.

In other words, when an employee can say on information and belief that discrimination is a plausible explanation for how their employer behaved, then the court should not dismiss the case based on the employer’s statements until the employee has an opportunity to interview witnesses and see the employers’ documents in a process called discovery. An employee is not required to explain specifically how the discrimination happened or what exactly was in every decisionmaker’s mind.

It is only when no jury could reasonably find that the plaintiff’s group status was not even a part of the employer’s or supervisor’s motive, that the case should be dismissed before trial. An employee who is filing a lawsuit can avoid this by providing evidence that the defendant admitted to discriminating directly or by using coded language, or indirectly because the supposed explanation for why the employee was treated differently that the employer gave was a false excuse.

As one court stated: “[E]mployment discrimination is often accomplished by discreet manipulations and hidden under a veil of self-declared innocence. An employer who discriminates is unlikely to leave a ‘smoking gun,’ such as a notation in an employee’s personnel file, attesting to a discriminatory intent.” The courts understand this and work with employees to allow them to amend their complaint, if necessary, or seek documents or witnesses from the workplace.

In essence, an employee should be prepared to offer some evidence that at least one of the reasons offered by the employer or supervisor for treating other employees of a different group identity better was a “false, misleading, or incomplete” explanation for what happened in the workplace.

Next Steps

If you have reason to suspect that you have been discriminated against or treated in a hostile manner at work, you may benefit from a free consultation on the topic of discrimination.