Race, National Orientation Discrimination, Harassment or Retaliation

Title VII of the Civil Rights Act of 1964 and Section 1981 are both federal laws prohibiting discrimination based on race, but they differ in their scope and application.

Title VII broadly prohibits discrimination based on race, color, religion, sex, and national origin in employment, while Section 1981 focuses specifically on racial discrimination in the making and enforcement of contracts, including employment contracts.

It is unlawful to discriminate against any employee or applicant for employment because of race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about the abilities, traits, or performance of individuals from certain racial groups.

Racial discrimination can take the form of failing to hire, train, mentor, or promote a racialized person. Racialized persons may find themselves subjected to excessive performance monitoring or may be more seriously blamed for a common mistake. And, normal differences of opinion or failing to get along with a co-worker may be treated as more serious when a racialized person is involved.

DISCRIMINATION BASED ON RACE

To establish a claim of discrimination based on race, the employee must be able to demonstrate (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside their race.

An adverse employment action means you must have suffered some harm with respect to an identifiable term or condition of your employment, such as termination, demotion, decrease in pay, a transfer, or reassignment with different responsibilities.

HOSTILE WORK ENVIRONMENT/HARASSMENT BASED ON RACE OR NATIONAL ORIGIN

A hostile work environment based on race or national origin involves unwelcome conduct or statements based on race or national origin, such as ethnic slurs or derogatory remarks, that create a hostile work environment or affect job performance.

A hostile work environment claim involves widespread and/or severe harassment that creates an intimidating, offensive, or hostile atmosphere, thereby interfering with the employee’s ability to perform their job. Courts hold that to establish a hostile work environment based on race or national origin, the harassment must rise beyond simple teasing, offhand comments, or isolated incidents that are not very serious. Harassment is illegal when it is frequent, severe, and/or results in termination, demotion, or other adverse employment actions that affect an employee’s job benefits, such as a transfer, reduction in hours, or change in work schedule.

When deciding whether the harassment rises to the level of creating a hostile work environment, courts look at the totality of the circumstances, including the frequency of the harassing conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. A hostile work environment is one “pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere.”

Generally, an isolated incident does not constitute a hostile work environment unless it is severe and/or physically threatening in nature. Hostile environment claims typically involve repeated conduct that often occurs over a series of days, weeks, months, or even years.

IF YOU ARE EXPERIENCING DISCRIMINATION OR HARASSMENT BASED ON YOUR RACE, YOU SHOULD REPORT IT IN WRITING.  IT DOES  NOT HAVE TO BE FORMAL AN EMAIL IS FINE.  UNDERSTANDABLY, IT IS SCARY AND MANY EMPLOYEES DON’T REPORT IT BECAUSE THEY FEAR RETALIATION.  HOWEVER, IF YOU DON’T REPORT IT, YOU MAY NOT BE ABLE TO BRING A CLAIM. MOREOVER, IF YOUR EMPLOYER RETALIATES, THEN YOU HAVE A STRONGER CLAIM BECAUSE YOU REPORTED IT. YOU SHOULD USE THE WORDS “RACIAL DISCRIMINATION” OR “HARASSMENT BASED ON YOUR RACE” IN YOUR COMPLAINT TO YOUR EMPLOYER

RETALIATION BASED ON RACE

If a manager, supervisor, or administrator terminates you, demotes you, reprimands you, or takes any other type of materially adverse action against you for reporting that you are being discriminated against or harassed based on your race or national origin, you may have a claim against your employer for retaliation.

It is illegal for an employer to retaliate against you because you reported discrimination or harassment based on your race. Reporting harassment and/or discrimination is a protected activity. It is helpful to your claim if your employer’s retaliatory conduct occurs close in time to your complaint of sexual harassment or discrimination.

The Courts take a broad view of what constitutes retaliation. Retaliation can be subtle or blatant.  It consists of any negative action taken by an employer that would deter a reasonable employee from raising concerns or reporting discrimination or harassment.

Below is an inexhaustive list of examples of Retaliation.  However, retaliation is not limited to what is set forth below and can consist of many things:

• Reprimanding the employee shortly after they report harassment or discrimination.
• Changing the employee’s schedule
• Denying the employee training opportunities
• Denying the employee a promotion
• A reduction in pay
• A reduction in hours
• Giving an employee a performance evaluation that is lower than it should be
• Transferring the employee to a less desirable position ot location
• Subjecting the employee to increased scrutiny
• Leaving the employee out of important meetings
• Constantly criticizing the employee

Retaliation does not need to be employment or workplace-related if it stems from you reporting harassment or discrimination based on your sexual orientation or gender identity. Examples of non-related retaliation include:

• Your employer takes action against a family member.
• Your employer disparages you to others.
• A false report to the authorities.
• It can continue even after your employment ends.

Unfortunately, reporting harassment or discrimination does not shield you from discipline or discharge if your employer has legitimate reasons. But your employer must have a non-retaliatory and non-discriminatory reason for their actions. Your employer cannot make up a reason to terminate you when the real reason is discriminatory or because you reported harassment or discrimination. The burden is on the employee to demonstrate that the employer’s reason for terminating you is a pretext, meaning a dishonest reason not based on facts.

In order to pursue a claim for race or national origin under Title VII

• Your employer must have at least 15 employees, and
• You must also file a charge of discrimination with Equal Employment Opportunity Commission (EEOC) or the South Carolina Human Affairs Commission (SCHAC) within 300 days of the alleged discriminatory conduct. It is preferable to have an experienced employment lawyer draft your charge. However, you don’t need a lawyer to file a claim with the EEOC or SCHAC. You can file a claim with these agencies on your own. See https://www.eeoc.gov/how-file-charge-employment-discrimination  Or go to the SC Human Affairs Commission website. https://schac.sc.gov/employment-discrimination/how-file-employment-complaints.

However, if you are bringing a claim under 1981, you do not need to meet these prerequisites.