Racial minorities seeking legal recourse for racial discrimination in the workplace often find that, if the law offers any remedies at all, there are insurmountable obstacles to obtaining justice. Any reforms in workplace laws must recognise the long-standing pervasiveness of systemic racism. This essay aims to spark discussion on the reforms needed in anti-discrimination laws within workplaces that are definitely not characterised by post-racial sentiments.
Legal recourse is beyond the grasp of many aggrieved employees. More specifically, employees who seek justice for racial discrimination in the workplace may find themselves in an unenviable position. They are often abandoned in the chasm between the stated purposes of anti-discrimination laws and the limited ways that those laws may actually operate in practice. The laws may not offer sufficient remedies for the hardships the employees have endured. That is, if any remedies are even available at all. Many employees who have been discriminated against find that the law actually offers no sufficient remedies. Even when remedies are available, employees must often overcome apparent insurmountable obstacles to get their cases heard.
Racial discrimination in the workplace mirrors that which exists in the larger society. Therefore, it has the power to impede employees’ opportunities for advancement; deny employees the security of income stability; and cause employees significant emotional distress. Employees who are racial minorities, in other words non-white employees, and have experienced racial discrimination in the workplace often find that justice is beyond their reach.
Title VII (and similar state and local laws) is designed to protect employees in certain “protected classes” from unlawful discrimination. But legal recourse still remains beyond the grasp of many minority employees. This disturbing observation points to the need for employee-centred reforms in employment law.
Reforms in employment law must recognise that, even in a constantly changing world, systemic racism is still prevalent. Meaningful reform must make allowances for these modern realities. Reforms in workplace protections must recognise that the workplace, like the larger society in which it exists, is not post-racial.
Reform must include revamping laws and opening access to the legal system and the ability to obtain legal representation. Additionally, the workplace itself must change, and employers must have serious incentives, to prevent the perpetuation of discrimination in the workplace.
Reform in the Law
Many employment laws are written from a perspective that discrimination will be explicit and immediately recognisable. As a result, when employees cannot immediately point to overt acts of discrimination, their legal claims are often discarded.
Anti-discrimination statutes such as Title VII seem straightforward and simple. For instance, Title VII, codified at 42 USC § 2000e, et al provides that:
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, colour, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, colour, religion, sex, or national origin.
Attempting to bring a claim for discrimination based on race, pursuant to Title VII or similar statutes is far from simple. A plaintiff can prove racial discrimination by direct or indirect (circumstantial) evidence. However, to prevail on a racial discrimination claim, a plaintiff must prove that race was a “motivating factor” for any adverse employment action (i.e. termination, demotion, etc.).1 On the surface, this motivating factor standard may appear to be relatively uncomplicated. In practice, however, minority plaintiffs continuously find that this standard means that justice remains out of reach.
Systemic racism is so entangled within the larger society that its pervasiveness is often overlooked. Racial bias is a seamless part of the fabric of a society – a society which the workplace then mirrors. Consequently, claims of racial discrimination are often met with rebuttals steeped in implicit biases which, in defending against discrimination, actually rely on racial stereotypes or other forms of discrimination.
Imagine an African-American employee who claims that racial discrimination is the reason that she has been terminated. This employee’s claims include allegations that her work was unfairly criticised. The employee may also note that she was isolated from any meaningful interactions with her supervisors and other colleagues. In this case, the employer will likely rebut the plaintiff’s claims by alleging that the plaintiff did, in fact, have poor performance. The employer may characterise the employee as being unable to grasp the responsibilities required by her job; or even argue that the employee is unwilling to do the job. The employer may respond to what the employee calls isolation with arguments that the employee simply does not fit in with the employee’s culture.
Rampant implicit bias may cause a judge or jury to accept the employer’s aforementioned defenses. This will mean an acceptance of stereotypical notions about the particular African-American plaintiff. Because racial discrimination is so engrained, it is unrealistic to assume that finders of fact – judges and juries – have not been impacted by such bias.
Anti-discrimination laws must recognise that the same racial discrimination to which many employees are subjected, also exist in the implementation of the laws designed to provide protection from such discrimination. Reforms must recognise that, in many instances, racial discrimination is the status quo. When legal claims are made, the laws, as written, assume that something occurred that would not ordinarily occur. However, because racial discrimination is so prevalent, evidence of discrimination is often viewed as normal. Racial discrimination is not an anomaly; therefore, it is easy to disregard claims that challenge the long-accepted workings of society. Any reform must specifically denounce the acceptance of discriminatory stereotypes and acknowledge the existence of implicit biases.
Reform in Access to the Law
Even when the law offers viable options for recourse, employees who have cognisable claims may not necessarily be able to pursue them. Legal services are expensive. If employees are facing discrimination in the workplace, they likely have concerns about job and income security. These employees are likely not in a position to pay for expensive legal services.
For racial minorities, the difficulties involved in finding an attorney may be magnified. Research by the American Bar Foundation indicates that, in employment discrimination cases, racial minorities are unable to access legal counsel at the same rate as whites. In a press release detailing the results of a study on race and legal representation in employment cases, the American Bar Foundation notes that, “racial disparities in representation mean that the groups most affected by discrimination lack the resources to mount effective challenges through the courts”.2 The results of the American Bar Foundation’s study are detailed in Race and Representation: Racial Disparities in Legal Representation for Employment Civil Rights Plaintiff authored by Amy Myrick, Robert L. Nelson, and Laura Beth Nielson.3
The American Bar Foundation’s study notes that finding an attorney is a “complicated and time consuming process”.4 Employees searching for an attorney will likely have jobs or other family obligations. Therefore, they may lack the “material and emotional resources” to invest in finding a lawyer, while still fulfilling other obligations.5
Even if a minority employee gains access to an attorney, there is no guarantee that the attorney will take the case. Bias on the part of attorneys also excludes minority employees from being able to access the legal justice system. Being well-versed in the applicable laws, attorneys who represent employees are familiar with the obstacles faced by minority employees, and this knowledge may result in a refusal to represent minority employees.
Anti-discrimination laws impose very specific limitations on the amount of damages that a plaintiff can recover. Damages can be based an employee’s salary. Income disparities mean that non-white employees will, therefore, recover less for damages for lost wages. Low-income employees, who are overwhelmingly minority employees, are significantly impacted by a calculation of damages that considers the employee’s salary.
Anti-discrimination statutes such as Title VII base amounts for compensatory damages such as emotional distress and punitive damages on the number of employees that a company has – with such damages ranging from $50,000-$300,000. The triers of fact decide damages for emotional distress. There must be an acceptance of a plaintiff’s argument that workplace discrimination negatively impacted her emotional well-being. Discriminatory ideas that minorities are somehow mentally strong; are accustomed to discrimination; or are simply being dramatic may cause a judge or jury to refuse to award significant damages for emotional distress.
Employment laws also require employees to mitigate their damages. This means that even if an employee is unlawfully terminated, the onus is on that employee to find another job. For minorities, this can mean a constant cycle of discrimination. Minority employees may face the same discrimination in trying to obtain alternative employment that they faced before being terminated. If an employer can successfully argue that an employee did not sufficiently mitigate her damages, the employer escapes some liability for damages. Even more, once an employee is able to obtain a new job, she is no longer entitled to lost wages. In essence, anti-discrimination laws lessen an employer’s financial liability by requiring a terminated employee to find new employment, and then reducing the employer’s liability once the employee complies.
When an attorney takes a case on contingency, the client does not have to pay for the services of the attorney, but the attorney will get a percentage of any monetary amounts obtained by the employee. The clients whom attorneys agree to represent on a contingency basis can also point to a form of bias that excludes minorities from obtaining legal representation.
Attorneys taking cases on contingency have to believe that those cases will eventually result in some [significant] monetary reward. Attorneys recognise that the largest monetary awards will go to those employees who earn higher salaries. Attorneys also know the difficulties involved in order to prevail on a racial discrimination claim. Attorneys may therefore, refuse to offer representation to clients whose cases do not appear to involve readily apparent egregious racial discrimination.
Attorneys may refuse to offer representation to those employees who do not meet certain other discriminatory criteria. The American Bar Foundation study points out that the screening methods of attorneys can favour some clients for reasons unrelated to the merits of a case. Attorneys may choose clients based on their ability to compellingly “sell” their cases or the client’s connection to someone who can vouch for them. The study points out that these methods may particularly work against African-American employees who are statistically poorer, and as a result of possible educational disparities and segregation in low level jobs, may have more difficulty at selling their cases.6
The American Bar Foundation found that attorneys may also relate an employee’s demeanor to whether claims of discrimination are true. Attorneys may perceive a minority employee as simply trying to “work the system”. Or minority clients may be viewed as “difficult” to work with, or even unlikely to present well to a judge or jury.7
The legal profession is one of the least diverse professions in the United States – with eighty-eight percent of attorneys being white.8 Therefore, most minorities who seek legal representation will most likely encounter an attorney who is white. The negative impact of implicit bias in these interracial encounters between attorneys and minorities seeking representation cannot be overstated.
Reforms that will make it easier for minorities to get legal representation in employment cases must start with the attorneys who practice in this area. This is not to suggest that plaintiff’s attorneys should not be concerned about making money or should take all cases. But anti-discrimination attorneys must recognise the ways that bias impacts their own work – and work to address the discriminatory actions in their own practices.
Collectively, attorneys must encourage more diversity in the legal profession. More specifically, more minority attorneys will mean greater likelihood that minority employees will find attorneys who find them credible, take them serious, and will offer them a chance to at least gain access to the legal system.
Reform in the Workplace
It would be too idealistic to assume that workplaces would eradicate discrimination simply because it is the right thing to do. Instead, employers must have substantial incentives to address racial discrimination.
Tying the damages that an employer may have to pay solely to an employee’s salary and/or the size of an employer is not sufficient incentive to address or cure discrimination. Employers may decide that such costs are simply a necessary risk of doing business.
Reforms in anti-discrimination laws should consider more significant consequences for those employers who have been found to engage in racial discrimination. For instance, anti-discrimination laws can, in addition to allowing the award of damages to individual plaintiffs, can also impose financial sanctions on employers. If significant enough, these sanctions can provide employers a tangible incentive to address and cure racial discrimination. Sanctions collected from employers may also aid in solving the barriers that minorities face in attempting to access legal assistance. These sanctions could support programs which offer legal assistance to those employees who would not otherwise be able to obtain it.
Attempts by employers to eradicate discrimination must move beyond the obligatory diversity training session. Employers must take a serious interest in eliminating racial discrimination from the workplace. But the change in workplaces is not likely to happen without some outside influence.
Work to do in Workplace Law
Consultations with minority clients often involve some discussion of the harsh reality that racial discrimination creeps into those places that extend far beyond the workplace. The disturbing reality is that discrimination even pervades the very justice system that is supposed to offer protections. The intersection of racial discrimination from so many angles means, particularly in the employment context, the risk of continuing financial insecurity and income instability. These compounded discriminations means a high risk that minorities will be unlikely to gain the financial strides necessary to eliminate a history of income disparity with whites. These risks are simply too great.
A legal system that offers no adequate recourse or resources to racially marginalised employees is no system of justice. Legal reforms must close the gap between what the law says and what the law does. Stronger protection for employees; the availability of more significant damages; and better access to legal representation are all needed to ensure that minority employees do not endure multi-level instances of discrimination.
About the Author
Phillis H. Rambsy is a partner with the Spiggle Law Firm, which has offices in Arlington, Virginia, Washington, DC, and Nashville, Tennessee. Her legal practice focuses on workplace law where she represents employees in matters of wrongful termination and employment discrimination including racial discrimination, pregnancy discrimination, and other family-care issues such as caring for a sick child or an elderly parent. To learn more, visit: https://www.spigglelaw.com/team-member/phillis-rambsy/# or connect via Twitter or Instagram: @blackbellesouth
1. For a discussion of the “motivating factor” standard see E.E.O.C v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (June 1, 2015). The Court in this case notes that Title VII prohibit making a protected characteristic (i.e. race, religion, gender) a “motivating factor” in an employment decision. This case is a religious discrimination case involving the refusal to make accommodations for an employee’s religious practices. However, because Title VII includes prohibitions against racial and religious discrimination, the standards would be the same in a racial discrimination case brought pursuant to Title VII.
2. See “New Study Examines Racial Patterns of Lawyer Use in Employment Discrimination Cases”, www.americanbarfoundation.org/news/4023.
3. Myrick, Amy, Nelson, Robert L, & Nielson, Laura Beth (Fall 2012). “Race and Representation: Racial Disparities in Legal Representation for Employment Civil Rights Plaintiffs” N.Y.U. Journal of Legislation & Public Policy. 15(3): 705-758.4.
4. Id. at 736
6. Id. at 743-744
7. Id. 745-746
8. See Rhode, Deborah L. (2015, May 27). “Law is the least diverse profession in the nation. And lawyers aren’t doing enough to change that.” Washington Post, https://www.washingtonpost.com/posteverything/wp/2015/05/27/law-is-the-least-diverse-profession-in-the-nation-and-lawyers-arent-doing-enough-to-change-that/?utm_term=.0f8a9e4f1f71