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Racial discrimination in the workplace

Racial discrimination in the workplace is any unfavorable treatment of one or more employees based on the target's race or perceived race.

Cynthia Shaiman Bamforth | Mar 29, 2019

HAIRSTYLE DISCRIMINATION

Federal, state and local laws have long banned workplace racial discrimination. A recent trend seeks to expand such protections to various race-based traits, particularly certain hairstyles. Under California’s now-pending Senate Bill (SB 188), workplace dress or grooming policies prohibiting natural hairstyles, including afros, braids and twists would be unlawful race-based discrimination: “In a society in which hair has historically been one of many determining factors of a person’s race, and whether they were a second class citizen, hair today remains a proxy for race.” The bill declares that “Eurocentric norms” have historically equated “blackness,” and the associated physical traits, for example, dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment. Thus, the bill reasons, “hair discrimination targeting hairstyles associated with race is racial discrimination.” New York City has already enacted the first-ever legal enforcement guidance against discrimination on the basis of natural hair and hairstyles that disproportionately impact Black people. Regardless of whether this initiative becomes actual law in California, employers should consider proactively modifying their dress code policy to eliminate any ban on natural hair or hair styles or requirements to straighten or relax naturally curly hair. See also: • How to Address the Employee Dress Code (September, 2018). • CA Labor Laws 2013: Religious Dress and Grooming and Employers’ Increased Duties To Accommodate (February, 2013). For additional assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin. Cindy Bamforth March 29, 2019

Jimmy M. Santos | Jan 20, 2018

WORKPLACE DISCRIMINATION BASED ON RACE, COLOR AND/OR NATIONAL ORIGIN

Are You Being Discriminated Against Because of Your Race, Color and National Origin ? Generally, New York is an "employment at-will" state which means that your employer can terminate you for a good or bad reason, or no reason at all. Similarly, you can resign "at-will" for any reason or no reason at all. However, a limit to the employment "at-will" rule is that employers are prohibited from engaging in unlawful discrimination under federal and state law and, if you live in NYC or other counties in NY with local county rules which prohibit employment discrimination. Depending of the number of employees your employer has, (e.g., under the NYS Human Rights Law, your employer must have at least 4 or more employees), your employer is prohibited from engaging in race, color and national origin discrimination in the terms and conditions of your employment. Oftentimes, employees believe that they are being subjected to employment discrimination, but the discrimination, although unfair, might be lawful because you are not in a "protected" category under the anti-discrimination statutes. However, if you believe that your employer is favoring and treating your co-workers (who are not of your race, color, and/or national origin) in a better way with respect to assignments, promotions, meting out discipline, and/or subjecting you (and possibly others of your race, color, and/or national origin) to a hostile work environment or harassment, then you may have a viable claim or claims for unlawful race, color and/or national origin discrimination and/or harassment. In that case, before being terminated, to corroborate your claims of unlawful discrimination or harassment, you should document what is happening at work on a daily basis. What Steps Should Be Taken If You Feel You're Being Subjected to Unlawful Discrimination In order to determine whether you have viable claims of discrimination or harassment on the basis of your race, color, and/or national origin and have not yet been terminated, you should take the following steps: 1. Consult an attorney who does employment discrimination before your situation at work becomes worse and you're at greater risk of being terminated; 2. Document the specific ways (e.g.s., handing out assignments, promotion opportunities, disparate pay, disparate pay raises, disparate discipline, etc) your employer are favoring your co-workers (of a different race, color and/or national origin than yours) on a daily basis in a log/ or diary type notebook. You should not tell anyone at work (or anyone else who could relay this information to your employer) that you are doing this, and you should maintain such diary or log in a hidden place while at work, and bring it home after your workday ends; 3. Take written notes if any of your managers or co-workers have used or are making any racial epithets, and/or any remarks (e.g. such as those reflecting stereotypes) concerning your or other co-workers' race, color and/or national origin; 4. Depending on what your attorney advises you to do so, you may want to record conversations you are having with those you feel are discriminating against you in a very discrete fashion (e.g., in New York, which is a "one-person consent" state, you can record such conversations just as long as you're a participant in the conversation); 5. Review your employer's handbook or other written employee policies to see if your employer has a specific procedure for complaining about unlawful discrimination or harassment, but do not make a complaint unless your attorney recommends you to do so since you could be then subjected to unlawful retaliation; and 6. Make a list of witnesses who can testify or give your attorney information which supports your case of discrimination. Again, if you think you're a victim of workplace discrimination on the basis on your race, color and/or national origin, (or based on any other "protected" basis, such as age, gender, disability sexual orientation, religion, etc), it's best to speak with an employment discrimination attorney as soon as possible to see if the discrimination or harassment can be rectified before you are terminated from your employment. NO ATTORNEY-CLIENT RELATIONSHIP OR LEGAL ADVICE Communication of information by, in, to or through this Web site and your receipt or use of it (1) is not provided in the course of and does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney. You should not act upon any such information without first seeking qualified professional counsel on your specific matter. The hiring of an attorney is an important decision that should not be based solely upon Web site communications or advertisements. Below are websites that provide additional information.

Cynthia Shaiman Bamforth | May 3, 2016

UNDERSTANDING CALIFORNIA’S EQUAL PAY ACT

California's long-established Equal Pay Act (the Act) requires California employers to pay their employees of the opposite sex the same for equal work. As previously covered in Fair Pay Act Aims to Level the Playing Field, the Act's amendments effective January 1, 2016 make it harder to justify unequal pay between male and female co-workers. For example, the amended Act eliminates the requirement that the comparative jobs in question must be located at the same establishment and it replaces a comparison of "equal" work with a comparison of "substantially similar" work. To help understand the amendments, on April 6, 2016, California's Labor Commissioner's Office prepared answers to frequently asked questions about the Act (FAQs). The newly issued FAQs define the term "substantially similar work" as mostly similar in skill, effort and responsibility and performed under similar working conditions. "Skill" refers to required experience, ability, education, and training. "Effort" refers to the necessary amount of physical or mental exertion. "Responsibility" refers to the degree of accountability or duties required in performing the job. "Working conditions" mean the physical surroundings (temperature, fumes, ventilation) and hazards. A "bona fide factor other than sex" must be job related, consistent with business necessity, and not based on or derived from a sex-based factor. Examples include education, training or experience. These FAQs also describe what an employer must do to defeat an Equal Pay Act claim; i.e., prove that a pay differential for "substantially similar work" was due to seniority, merit, a system that measures production, and/or a "bona fide factor other than sex." Additionally, the employer must show that it applied the above factor(s) reasonably and that such factor(s) account for the entire difference in wages. The FAQs also explain how, when and where an employee may file a claim to enforce the Act. In addition to carefully studying the FAQs, employers should ensure they base all compensation decisions -- including salary, bonuses and commissions -- solely on objective criteria that comport with the amended Act. Employers should also consider reviewing their employees' current or prospective pay structures with the help of a competent employment attorney. For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.