Can I Sue My Employer for Racial Discrimination?

Racial discrimination is illegal and prohibited, especially in the workplace. When you feel you have been subjected to discrimination because of your race, you must be wondering, “can I sue my employer for racial discrimination?”

The answer is, yes, you can sue your employer for racial discrimination. Proving that your employer committed racial discrimination is a different matter and will require the expertise of an employment discrimination lawyer.

Most lawyers will accept a strong racial discrimination suit on contingency basis – which means they only get paid once you receive a settlement or favorable judgment. For this reason, do not wait until the last minute before consulting a racial discrimination lawyer on your complaint. The earlier you can get good legal advice, the better.

If you are looking into suing your employer for racial discrimination, we at the Law Offices of Albert Goodwin are here for you. You can call us at 212-233-1233 or send us an email at [email protected].

Have you been subjected to racial discrimination in your employment?

Racial discrimination in the workplace can take many forms. The conduct could be an intentional disparate treatment race discrimination or a disparate impact race discrimination. It is intentional disparate treatment when you have been singled out and treated differently in the workplace because of your race. It is disparate impact race discrimination when a policy is implemented by a company, which appears to be neutral and not race-specific, but when applied, only affects employees of a particular race.

Some examples of racial discrimination

If you are being laid off from the job due to retrenchment or reorganization, and you notice that other employees with the same position as yours who are newer in the company than you who are of a different color get to keep their position, there could be racial discrimination.

If you have not been considered for promotion despite having good performance reviews and other employees who are white who are newer in the company with lesser experience get the interview and/or the promotion, there can be racial discrimination.

If you have been working for the company for years and your boss has given you more responsibilities without increasing your pay, and you discover that your other colleagues, who are not minorities and have been given more responsibilities, get an increase in pay, there can be racial discrimination.

If you are an applicant for a position and you learn you were not accepted because the clientele of the company was not comfortable with interacting with an African-American person, there could be racial discrimination.

If you are all sales managers of the company with similar circumstances (similar sales, similar performance reviews, similar number of years with the company) and you learn you have lesser benefits than your white co-workers, there can be racial discrimination.

If there is a facially neutral company policy that requires no braids in the office but it only affects African Americans who braid their hair into dreadlocks, there is racial discrimination.

When you have been subjected to racial slurs by co-employees or co-workers tell racially insensitive or ethnic jokes in your presence, creating a hostile work environment, and the company has done nothing despite raising it in using the proper channels in the office, there can be racial discrimination.

Pursuing a racial discrimination suit against your employer using office procedure

When you feel you have been subjected to racial discrimination, you should first review the company policy or if you are part of a union, the existing collective bargaining agreement (CBA).

Usually, CBAs will require arbitration. Courts will dismiss your case for racial discrimination if you do not follow the CBA policy on pursuing arbitration first.

The company manual will also provide for a grievance procedure to address the concerns and complaints of the employees. The procedure often begins with raising it with your supervisor, and if there is no acceptable resolution, to the human resources department, who should act on your complaint. It is recommended that you use this procedure because if the company fails to investigate your claims despite raising it through this grievance procedure, they may be liable for punitive damages.

Pursuing a racial discrimination suit when internal company procedures fail

When the grievance procedure in the company does not provide for an acceptable resolution, you can now begin exploring suing your employer for racial discrimination.

In New York, acts of racial discrimination in employment is prohibited by federal law (Title VII of the Civil Rights Act of 1964), the New York State Human Rights Law, and New York City Human Rights Law.

Federal law vs. state law

Given the different statutes governing racial discrimination, you can file your racial discrimination suit with the Equal Employment Opportunity Commission (EEOC) for claims under federal law, the New York State Division on Human Rights (NYSDHR) for claims under New York State Human Rights Law (NYSHRL), and the New York City Commission on Human Rights (NYCCHR) for claims under New York City Human Rights Law (NYCHRL).

There is a work share arrangement between these agencies, so a claim filed with the EEOC can be considered cross-filed or dual filed with the NYSDHR and/or NYCCHR. The period to file a charge of racial discrimination with the EEOC is 300 days from the date of the discriminatory act. If you choose to exclusively file your claim with the NYSDHR or NYCCHR instead, the period to file the claim is one year from the date of the discriminatory act.

Filing a claim with the EEOC is required before filing a claim with the federal courts. On the other hand, filing a claim with the NYSDHR or NYCCHR will preclude you from filing a claim with the state courts. If you choose to file directly with state courts, you have three years from the time of the discriminatory act to file the complaint.

A racial discrimination lawyer will advise you on the best avenue to use with your racial discrimination claim, depending on the strength of your case, the time that has passed from the occurrence of the racially discriminatory conduct, and the damages prayed for. Most New York lawyers will advise you to file your claims under state law because the new amendments to the New York human rights laws adopt a more liberal approach in construing discriminatory practices.

The EEOC only covers employers with at least fifteen (15) employees, while the new amendments to New York human rights laws covers all employers and eliminates the minimum coverage requirement of an employer to have at least 4 employees.

In addition, New York laws not only cover employees but also domestic workers, independent contractors, consultants, vendors, subcontractors, and persons providing services pursuant to a contract, where the employer knew or should have known the discrimination was happening.

Evidence to support your claims

Once you decide you want to file a claim against your employer, you should already begin gathering evidence without even saying anything to anyone. Document everything that is happening. If you experienced a racial slur, document it by sending an email to a friend or family member, describing what happened while it is still fresh in your memory. Print all email correspondence that would support your claim for racial discrimination. Keep pay stubs, employee reviews, schedules, texts, voice mails, and other related materials. You might not have access to these documents in the future without a court order once you file your claim for racial discrimination.

Racial discrimination can be proven by either direct or indirect evidence. Most companies are smart enough to refrain from being blatantly racially discriminatory. Most racial discrimination acts are subtle. For this reason, you need the help of a racial discrimination lawyer to ensure that you are gathering the correct documents and evidence for your case.

In New York, to establish a prima facie discrimination claim under NYCHRL, you must allege that: (1) that you are a member of a protected class, (2) that you were qualified for the position, (3) … [that] you were treated differently or worse than other employees …, and (4) that the … different treatment occurred under circumstances giving rise to an inference of discrimination. Laguerre v. City of New York, et. al., 2021 NY Slip Op 31810(U) (2021).

Once you have a prima facie case for racial discrimination, the company will present their own evidence that the motivation for the action was actually nondiscriminatory. It is now up to you to show at least one of the reasons proffered by the company is false, misleading, or incomplete. Bennett v. Health Mgt. Sys. Inc., 92 A.D.3d 29 (2011).

Your racial discrimination lawyer will work with you on the type of evidence you need to present to prove your claims.

Damages for racial discrimination

When you sue your employer for discrimination, you can ask for back pay, front pay, reinstatement, compensatory damages, punitive damages, liquidated damages, attorneys’ fees, and other court fees and legal costs.

Back pay refers to your wages, benefits, and bonuses that you would have earned without the discrimination.

Front pay refers to lost compensation that you could have received from the time of judgment until reinstatement.

Reinstatement refers to an order by the court directing your employer to re-hire you back to work if you were fired.

Compensatory damages are designed to compensate you for out-of-pocket expenses such as lost wages, the cost of finding a new job, emotional pain, and distress.

Punitive damages are meant to punish the employer for their gross negligence, recklessness or conscious disregard of your rights. This may be awarded when you first notify your employer of the discriminatory conduct, and the employer does nothing about it. This would reflect your employer’s gross negligence or conscious disregard of your discriminatory complaint.

Liquidated damages are usually granted in lieu of the other damages and range up to double the amount of back pay.

If you are successful in your discrimination complaint, attorney’s fees, court fees, and other legal costs are awarded in your favor, in contrast to the American rule that every party pays for their own attorney’s fees, regardless of who wins.

Why it may be better to file a racial discrimination claim under New York state law

The new amendments to the New York State Human Rights Law provides a more liberal construction than federal law on analyzing standards of discrimination.

For example, under federal law, you have to prove that the employer subjected you to a hostile work environment that is so severe or pervasive that it altered your terms and conditions of employment. Under New York state law, harassment does not need to be “severe or pervasive” anymore. Instead, employers cannot be held liable only if the conduct is of a level that a reasonable victim of discrimination with the same protected characteristic would consider it as petty slights or trivial conveniences. Thus, the standards are lower under state law to prove harassment.

In addition, under federal law, an employer can raise the affirmative defense that the employee failed to use the internal complaint procedure to report a harassment claim. Under state law, this defense is not available.

Moreover, there is a $300,000 limit for compensatory and punitive damages under federal law. Under New York State and city laws, there is no limit.

Because of the more favorable conditions provided for an employee under New York state law, it is recommended to file your racial discrimination claims under New York law rather than federal law.

Retaliation and possible effects of filing an employment discrimination claim

When you file a racial discrimination claim, the employer is prohibited from retaliating against you. Retaliation includes demoting you, giving you reduced hours, or firing you.

The employer, however, will try to find ways to make your life uncomfortable that would make you decide to just resign. On the other hand, your employer might try to justify firing you by saying your performance is poor. Your employer will try to discredit you and not give you a favorable reference when you try to find a new job, damaging future employment prospects.

To prevent this from happening, your lawyer should always advocate for a quick and amicable out-of-court settlement with a non-disclosure clause.

Suing your employer for racial discrimination is a major decision that can affect future employment prospects. You need to consult with a racial discrimination lawyer to ensure that your complaint is adequately supported with evidence and that you will be well represented in negotiations with your employer, and ultimately, with the applicable administrative agency or court. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

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