The media makes it sound like racial discrimination continues to plague America’s workplaces, and the truth of the matter is that it does. But discrimination isn’t as blatant as racial slurs being used against individuals or employers blankly stating that they’re not going to hire an individual because of his or her race. In many instances racial discrimination in the workplace is much more subtle.
Racial discrimination and disparate impact
One common but often overlooked form of racial discrimination that occurs in the workplace is the implementation of policies that have a disparate impact. What this means is that an employer has a practice or policy that at first glance appears to be racially neutral and nondiscriminatory. When that practice or policy is put into use, though, the impact of it disproportionately affects those of a certain racial group. For example, a requirement that applicants for a position possess a certain IQ or education level may, depending on the circumstances, form the basis of a disparate impact claim.
To succeed on a workplace discrimination claim of this sort you’ll have to have evidence of disparate impact. Statistics can be helpful here, but you’ll want to be proactive in gathering the additional evidence you may need. This means obtaining a copy of your employer’s policies or an employee handbook, and writing down any instances that may be discriminatory in nature. When taking notes, be as detailed as possible. Try to write down when and where the event occurred, what happened, and who was involved. You’ll also want to record the names and contact information of witnesses who may be able to speak to the discriminatory behaviors and practices.
Your employer’s defense
Your employer may have several defense options at its disposal. To start, it may try to challenge your statistics that suggest that its practices do in fact have a bigger impact on a particular class of individual of a certain race. If you succeed in showing a disparate impact, though, then the burden will shift to your employer to demonstrate that the policy or practice in question is related to the job or is necessary for the business to operate. Even if your employer shows that the practice or policy is necessary for the business to operate, you might be able to succeed on a disparate impact claim if you can show that your employer failed to consider and implement less restrictive policies that are non-discriminatory in practice.
Don’t overlook the importance of expert testimony
Because disparate impact cases rely a lot on statistics, you may need an expert on your side to help you show a judge or jury the extent of the disparate impact. But before you can develop testimony and charts and graphs that clearly show the discriminatory practice, you’ll need to gather information.
This is where the discovery process can be beneficial, which is the process where you request documents from your employer and other relevant third-parties. Depositions, which is the taking of sworn testimony prior to trial, can also help direct your strategy and lock in witnesses’ testimony so that you can better prepare for settlement negotiations and trial. All of this information can be helpful to an expert who is tasked with assessing the true extent of disparate impact.
Don’t be afraid to stand up for your rights
You have a lot of rights as a worker. Don’t let your employer take advantage of you. Instead, if you think that you’ve been subjected to some sort of discriminatory practice then you should think about taking legal action. Experienced legal professionals like those at our firm stand ready to help assess and build your case to give you the best possible chance of success, which potentially means finding accountability and recovering compensation.