How Can I Prove Racial Discrimination Against My Employer?

To prove race discrimination, you must be able to show that you were subjected to a negative job action because of your race. Although there are still cases in which direct evidence of discrimination exists — a “smoking gun,” such as a memo telling managers not to hire applicants of a particular race — these are rare. More often, an employee has to prove race discrimination using indirect evidence.

Race discrimination might include segregating employees of a particular race in certain jobs, making decisions based on stereotypes about race, treating an employee differently for associating with people of a particular race, making decisions based on conditions that correlate to race, or making distinctions based on skin color. Here are some examples:

• A department store chain routinely channels white employees to sales jobs, while Latino employees are placed mostly in restocking and warehouse positions.
• A delivery company refuses to hire Asian applicants as truck drivers; the hiring manager believes Asians are poor drivers and more likely to get in accidents.
• A consulting firm doesn’t promote a white employee whose husband is Lebanese; the firm’s principals often bring their spouses when they entertain important clients, and they are afraid their clients will feel uncomfortable around an Arab American.
• A restaurant chain has many African American employees; however, the chain routinely assigns lighter-skinned African Americans to wait tables and seat customers, while African Americans with darker skin are channeled to jobs washing dishes and busing tables.

Harassment based on race is also illegal. For example, if employees tell racist jokes and threaten an employee because of his race, that would constitute illegal racial harassment.

In rare cases, an employee will have direct evidence of discrimination. For example, the company owner may have sent hiring managers an email saying, “I’ve noticed that most of our customer service positions lately have been going to Latino employees; let’s put a stop to that, or we’re going to drive away our more affluent customers.” Or, a manager may have told an employee, “as long as I’m making the decisions, this company is not going to have anyone Black in management.” Thankfully, however, situations like these are increasingly few and far between.

So what can you do if you believe you were discriminated against but you don’t have this type of direct evidence? You have to prove your case indirectly. To start, you must prove a prima facie case of discrimination. Prima facie is Latin for “on its face” or “at first glance.” If you file a lawsuit, you will have to be able to make this showing in order to force your employer to present some evidence. In a race discrimination lawsuit, a prima facie case has four parts:

• You are in a protected class.
• You are qualified for a job or performing it adequately.
• You were denied a job benefit (for example, you were not hired) or subjected to a negative job action (such as termination or demotion).
• The person who got the benefit was of a different race or the company continued to search for qualified applicants.

For example, if you were denied a promotion and you believe it was because you are Chinese, your prima facie case would consist of proving that you were qualified for the promotion, you didn’t get it, and the person who got it is not Chinese.

Once you present this evidence, the employer must produce some evidence that it had a legitimate, nondiscriminatory reason for its decision. In the above example, the employer might claim that you lacked the necessary skills, licenses, or experience for the promotion.

After the employer presents this evidence, you ultimately bear the burden of proving that the employer’s decision as discriminatory. The most common way to do this is to prove that the employer’s explanation is a pretext for discrimination. Again, using the promotion example, you might present evidence that the person who was promoted actually had less experience than you, that you had the necessary qualifications for the job, and that the company has never promoted a Chinese person to its managerial ranks.

As you can see, it can be a challenge to prove race discrimination. A lawyer can help you figure out what evidence might exist to prove your claims and how you can get it. Lawyers also have a number of legal tools they can use to gather evidence in a lawsuit. Along the way, a lawyer can help you explore settlement options with your former employer. If that doesn’t work, the lawyer can ultimately present your claims and argue your case in court.