Therefore . . .
A lot of people think that race discrimination in employment is largely a thing of the past.
A 2012 poll by the Associated Press found that 56 percent of Americans explicitly expressed anti-black prejudice.
It's not. It's just not as blatant, and employers have gotten a lot better at disguising it.
Just think it through. A good percentage of the general population continues to harbor deep seated prejudices against certain minority groups.
If you have any doubts, just take a look at the comments on YouTube, Yahoo and other internet sites. If 25 percent of the general population has racial prejudices, and I think that number, if anything, is low,
then 25 percent of corporate managers and owners of small businesses will be biased. Those biases manifest themselves in employment related decisions every day of every week, in every city in this country.
Scientifically speaking, there is no such thing a human race. Over the years, the term has been used to mean different things. When I was young, it was common to hear that there were three races: white (Caucasian), brown (African) and yellow (Asian). This idea persists to some extent. It is wildly erroneous. Skin color is a function of melanin, which itself is caused (over generations) by prolonged exposure to the sun. Thus, indigenous peoples in any of the tropical regions have dark skin, whether it be Central and South America, Africa, the Indian subcontinent or Australia.
Groups of people who live near each other tend to resemble each other. This is unremarkable. It is inevitable that when one group of people have regular contact with another, children will be born with a parent from each group.
Historically, people did not move around much. People tended to spend their lives pretty much where they were born. Until recently, transportation was not accessible to the masses, and geographical barriers kept peoples apart. That is how physical differences amongst people evolved. Originally, when modern mankind first emerged, everybody looked alike.
The world is shrinking, and people are having more and more contact with each other. This country is the great melting pot. Originally, most of the "melting" was among different types of Europeans, but that too is changing as the demographics of the country change. Hopefully, we will eventually lose this nonsensical idea of race.
A new manager comes into the department and starts to crack down on certain employees of a particular skin color or ethnic group. New hires do not have the targeted skin color and are not from the targeted ethnic group.
A company is dominated by individuals of a particular ethnicity. Employees who are not of that ethnic group are rarely promoted to important positions and generally receive inferior pay and work assignments.
The company announces layoffs. Employees of a certain skin color or ethnic group are disproportionately among those laid off. Or, the lay off may affect only a single person within a department or group of employees, and the decision is influenced by the skin color or ethnicity of the person let go.
Almost immediately after being hired, a new employee finds that her manager is hostile and rude to her, but not to others in the department. The manager finds fault with her work and seems to be setting her up to fail. This often happens in large corporations where employees are hired by H.R. and not department managers.
Employees of a certain ethnic group or skin color are given all the hard and dirty assignments, and the easier and clean assignments are given to the favored ethnicity/skin color
Under Federal Law, you can only sue if you have suffered an "adverse employment action." Getting fired, not getting hired, not getting a promotion and getting demoted are all adverse employment actions. What about a poor performance review? What about a first written disciplinary write up in a progressive discipline system? What about being assigned to a different location?
I'm not going to spend a lot of time talking about "adverse employment actions," because New York City Law takes a different approach. In NYC, you can sue over anything other than "petty slights and inconveniences." What are "petty slights and inconveniences?" Great question. The answer is whatever the judge thinks is not worth suing over.
I get a lot of calls from employees who want to know what they can do about "petty slights and inconveniences" that they have suffered at work. These are not people looking to get rich -- they have been treated poorly. People are very sensitive to being treated unfairly. Unfortunately, the law is not particularly sympathetic, and often the only solution offered is "like it or leave it."
One of the hardest things to explain to clients is the process known as summary judgment. Summary judgment for defendant results in the dismissal of a case without having a trial. A case can be dismissed on summary judgment if the judge decides that there is not enough evidence for the employee to prove discrimination.
What does that mean, not enough evidence? It means that even if everything that the employee claims happens were true, it would not prove discrimination. A typical example would be along the lines of this: an employee of a certain race is fired and replaced by a person of the favored race. Since this appears discriminatory on its face, the employer is required to explain why it did that. The employer states that the fired employee was late 42 times and had a pattern of last minute absences on Fridays and Mondays. After being warned several times, the employee failed to improve. These are legitimate reasons to fire an employee, therefore it no longer appears discriminatory on its face.
At this point, the employee has to come up with something or his case will be dismissed. What could that be? Well, for example, if he could show that there were three employees of the favored race that had even worse attendance records and they were not fired, then it appears that race might have something to do with it after all. Why was one employee fired and not the others?
To answer this question, there ought to be a trial. Often, however, there is not. In the example given above, the employer will usually be given a chance to explain why the other employees were not fired, and so on. All too often, the employer is given chances to offer multiple layers of explanations. This is wrong. That is what a trial is for.
Why do judges do this?
In a word: institutional bias. Most judges are predisposed to believe that businesses do not discriminate. There are several reasons for this. One is that judges tend to come from what we used to call the "establishment." As such, they have an inherent (i.e., subconscious and sometimes conscious) bias toward the status quo. Humans naturally take sides. Us versus them. If you are a member of the establishment, the status quo is "us" and anything that seeks to change the status quo is "them." We are hard wired to believe that the "us" are right, and the "they" are wrong.
Business and businesses are a cornerstone of the status quo. In a discrimination case, we are usually attacking a business, and a business usually represents the establishment, the status quo.