So You Think You’ve Been Discriminated Against Based on Your Race? Prove It.

We’ve all had that feeling we’ve rubbed someone the wrong way. This is a feeling that starts in our gut; it is our subjective understanding of the circumstances. Next, we try to objectively examine the way we are being treated relative to the treatment of others around us. We ask, is it me or are people of a different race being treated differently? This analysis is the same one demanded by Title VII of the Civil Rights Act of 1964 (Title VII) in racial discrimination cases. 

Racial discrimination is often manifested subtly and is difficult to detect.  It can also be extremely difficult to prove. However, one thing is certain, black Americans have faced discrimination in the workplace for the past 25 years. In fact, juries around the country are routinely awarding large sums of damages to African Americans who have demonstrated that they suffered racial discrimination in their respective workplaces. 

To prove race discrimination in the workplace, an employee must be able to demonstrate that they were subjected to an adverse job action based on their race. Generally, an employee has to prove race discrimination using direct evidence. An example of direct evidence would include, among other requirements, a memorandum, email or audio recording expressly stating something to the effect of: “Demote Jane because she is black; we only promote employees who are not black”. However only in rare cases does an employee actually have direct evidence of discrimination. Therefore, courts have accepted circumstantial (also known as indirect) evidence of discrimination. Where there is a sufficient amount of indirect evidence, the court will accept the entire compilation of evidence as proof of discrimination. An example of circumstantial evidence of racial discrimination in the workplace could include, among other requirements, a scenario where all the demoted employees were black, and all the promoted employees were white; without reason.

In order to prevail in a race discrimination lawsuit, the employee must demonstrate that:

  • They are in a protected class;
  • Qualified for a job or performing it adequately;
  • Were denied a job benefit or subjected to a negative job action.
  • The person who got the benefit or who was not subject to the negative job action, was of a different race or the company continued to search for qualified applicants. 

Proving a race discrimination case can be challenging. Additionally, there are strict timelines for reporting and filing racial discrimination claims. 

If you feel you have been discriminated against retaining the professional services of an employment law attorney will prove beneficial to assist you. 

Quick Tip: Monitoring Employees' Personal Communications

Generally the law gives employers broad rights to surveillance of their workplace, especially where company-owned devices are being used to communicate.

However, the federal Electronic Communications Privacy Act (“ECPA”) provides civil and criminal penalties for violators who intercept electronic communications such as telephone, email, voicemail, among others. Even the "business purposes" exception in the ECPA does not absolve employers who are only permitted to monitor on business-related communications but must cease surveillance as soon as they are aware that the communication is personal. From the outset, employers in contravention of the ECPA would be liable for equitable damages; additionally, in the 11th Circuit (which includes Georgia) actual damages, punitive damages, attorney fees and litigation costs are awardable at the Court's discretion.