Many employees live in two worlds. In one, you are told that laws require employers to ensure you don't face racial harassment, hostility and intimidation from co-workers, clients, managers and supervisors. Most workplaces conduct mandatory training to attempt to clean up everyone's behavior and publish page after page in handbooks about how to conduct yourself appropriately.
In the other world are the people who seemingly never get the message, who don't control their comments or behavior and yet are very adept at skirting the consequences.
The right thing to do is to say something, even if the racism isn't directed at you. Here's how you should handle racial discrimination at work:
Recognizing racial discrimination
Anyone can be a target of workplace racial discrimination, which, in general, takes two forms: Direct and indirect.
- Direct racial discrimination is overt and clear, such as racial slurs or jokes, harassment, bullying or physical threats
- Indirect racial discrimination is subtler, and includes race-based inequities in pay, job classification, promotions and layoffs. Being denied certain benefits, such as training opportunities or the ability to work flexible hours, if those are extended to your peers and not to you, could also be fundamentally racist
Racial discrimination can also arise in other forms of work-related communication: Through offensive text messages, in social media post entries and even on screen savers.
You also need to be very careful in not being too quick to call something racial discrimination. For example, a co-worker’s comment that, “Thai food is always too spicy” in and of itself isn’t evidence of racism. It is if that same co-worker uses derogatory language against Asians when she says it, or there is a pattern of comments and actions that demonstrate an agenda.
We often encounter victims of workplace racial discrimination who feel they should endure it to avoid making things worse for themselves. They are afraid to voice their concerns to management or human resources because they fear they are putting their job at risk.
But it’s far worse to say nothing. The perpetrator’s racist acts could multiply, and their nature may become more intense. If you tactfully raise your objection and concern, your employer will hopefully act to remedy or prevent the discrimination and change your work environment. If that does not work, then you will have taken the step necessary to place your employer on notice of the discrimination.
Documentation is your strongest ally. We always encourage people to document everything about the incident. If, say, someone makes a racially derogatory comment to you, you should put that in writing to your employer at the earliest opportunity. First, take notes and try to include as many details as you can — what racial comments were made, who was present when it happened, what anyone’s response was — anything you believe is relevant.
There is no right or wrong way to do it, just write down as much as you recollect, type it up and save the notes at home. Don’t keep these on company equipment, or in your desk or locker, because if the company does retaliate, you might never see your notes again.
Next, you should look at the employee handbook and see what it says about discrimination and harassment. It should spell out the complaint procedure, including who you should approach. The handbook may direct you to your manager, to a higher-ranking supervisor or to a designated person in human resources. In some cases, the person you are supposed to report the incident to may have been the perpetrator or otherwise involved. In that case, go to anyone you feel safe and comfortable with in upper management, HR, or even the company owner.
You should ideally put your complaint in writing before the meeting — documenting as much as possible and saving a copy of the complaint for yourself. At the meeting, you explain to the person that you believe you have been the subject of racial discrimination, and you slip the paper to them.
Once you raise that claim, the company should act to ensure that you are retaliation-free moving forward. However, that may not always be the case, so continue to document each step, including what transpired in your meeting, and write detailed notes if you suffer any heightened anger or hostility from the perpetrator, co-workers or managers.
We understand that most employees don’t complain because they fear being retaliated against or fired. That, however, should be the least of your fears. You should act against discrimination and report any and all wrongdoing, and you should not continue to work in an environment that is intolerable. There’s also never a wrong time to contact an attorney if you feel you’ve been racially targeted, but the sooner the better. The attorney can advise you on what materials you may need to gather and other steps to take to support your claim.
One last word
We generally recommend that you also seek the advice of counsel before you contact a state or federal employment agency regarding your claim. While the federal EEOC and your state’s Fair Employment Practices Agency investigate employee complaints of racial discrimination and seek to protect your interests, it is important for you to have obtained counsel through an attorney before you decide that use of any governmental agency is appropriate for your claim or even your best option.
Raymond Babaian is the founding partner of Valiant Law. During his 15-plus years in practice, he has gained expertise in litigation of employment, general liability, class action, construction, products, and general business litigation matters.