Discrimination and the Workplace

By: Leland C. Abraham, Esq.

One of the least discussed national topics is discrimination in the workplace. Discrimination on the basis of race, national origin or sex occurs more than most Americans are led to believe. A few nuggets of knowledge concerning employment discrimination may help those who have been subject to discrimination protect themselves in their respective places of business.

Racial discrimination occurs when an employer makes job decisions on the basis of race. This occurs even when an employer adopts neutral job policies that disproportionately affect members of a particular race.

There are federal and state laws that prohibit race discrimination in every aspect of the employment relationship, including hiring, firing, promotions, compensation and any other terms or conditions of employment. For example, an employer commits racial discrimination when it refuses to hire blacks, promotes only whites, requires only Latinos to submit to drug tests, or refuses to allow Asian-Americans to interact with customers. An employer that discriminates on the basis of physical characteristics associated with a particular race, such as hair texture or skin color, also commits discrimination.

There are even employment practices that may seem neutral on the surface, but they are in fact discriminatory. For example, height requirements may eliminate a disproportionate number of Asian Americans or Latinos. Also, an employment policy that requires men to be clean shaven may discriminate against black men who are more likely to suffer from pseudofolliculitis barbae (a painful skin condition that is exacerbated by shaving). Most employers are aware that the majority of black men do not shave because of this condition. Rules or policies that have a disproportionate impact on a particular race will only pass muster, or be legitimate, if the employer can show that the negative impact that the policy has on the race adversely affected has a legitimate work related purpose. In short, there has to be a real work reason for the policy and it can’t be arbitrary.

Another arena of the employment process where discrimination is often present is in the area of promotions. There are many instances in which employees of color are passed over for promotions in favor of their white counterparts. Many of these employees of color state that their work performance is at the same quality of production as their colleagues who receive promotions. If this is true, the only difference between the employees of color who were passed over for the promotions and their white colleagues who received the promotions is race. If race is the deciding factor, this is a clear case of discrimination.

There are times, when the work conditions become so hostile that an employee is forced to leave his place of employment. When this happens, the employee will still have an action available to him called “constructive termination.” Constructive termination occurs when the conditions at the place of employment become so extreme that an employee cannot possibly remain employed with such an employer. The Equal Employment Opportunity Commission (EEOC) states that there are an increasing number of constructive termination suits that it prosecutes.

Whatever your profession, there has been someone of color who has experience some form of discrimination that paved the way for you to have the opportunity to employed. In honoring those who have paved the way, make sure that you don’t have to be subject to the same form of discrimination that they had to endure.

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