Can my employer ask about my race?

posted by Daniel Stevens  |  Mar 11, 2019 1:59 PM [EST]  |  applies to California

 

Can an employer ask an employee or an applicant about their race?  The short answer is technically no. In some states, it is legal for an employer to inquire about an employee or an applicant’s race.  California is one of the few states in America that prohibits race-based affirmative action. This means that an employer is not permitted by the law to ask an employee or an applicant what their race is in order to decide whether to provide employment opportunities or not to a particular individual. A Discrimination Attorney in California may be able to provide legal advice to an employee or applicant if he or she was discriminated against based on their race.  Below there are some points to consider when dealing with race discrimination in the workplace.

 

What is race discrimination?

 

Discrimination laws, in general, were enacted to create equality in the workplace.  The laws are meant to prevent employees that belong to a protected class or bear a protected characteristic from being discriminated against because of their differences.  Race is considered protected under the law.  

 

Race discrimination in the workplace is where an employee is treated differently from other employees in a negative way based on the employee’s race.  Race pertains to an employee’s ethnicity or ancestry.  These laws that prohibit race discrimination do not only apply to long-established groups of minorities, but to all groups of employees and applicants. In other words, the laws are to protect “race” and “color” in general and is not meant to only protect certain groups exclusively.  Although race and color may coincide and appear to be interchangeable concepts, the law identifies them as separate claims in a discrimination case.  In federal court, the laws that regulate race discrimination identify employment decisions based on stereotypes to be unlawful.  For example, an employer who refused to hire an applicant based on the fact that the employee was born and raised in Mexico and based on the assumption that  “all Mexicans are lazy” would be considered under federal laws as race discrimination.

 

Examples of race discrimination would include name-calling, teasing, ostracizing an employee, denying the employee benefits, reducing the employee’s pay, deducting the employee’s work hours, reprimanding the employee for bogus reasons, or termination.  An applicant who is denied employment based on their race is also considered race discrimination and an applicant may be entitled to recovery in that situation. 

 

Another example of racial discrimination may be if an employer requires that all employees only speak English while at work.  In other circumstances, an employer may be found liable for race discrimination if he or she makes a decision about whether to hire someone or not based on the applicant’s accent.  The only way an employer may negative liability for not hiring an applicant based on the applicant’s accent is if the accent substantially interferes with the main roles of the position.

 

Going back to the original question of whether an employer can ask about an employee’s race, if an employer were to do that, it would be considered as race discrimination.  Race should not be considered when hiring an employee as this does not make employment opportunities equal to all individuals. Keep in mind that all cases depend on the circumstances and would need to be determined on a case by case basis.  In order to ultimately determine if an employee or an applicant should take legal action, he or she should seek advice from a Discrimination Attorney.

 

Taking legal action

 

First and foremost, in order to begin legal proceedings, an employee or applicant must first confirm whether or not he or she even has a claim.  The way in which an employee or applicant can confirm whether he or she has a claim against an employer or organization is by consulting a Discrimination Attorney.  A Discrimination Attorney is a type of legal professional who handles cases where an employee or applicant may need legal representation against an employer or organization.  A Discrimination Attorney is the type of lawyer who can look over a set of facts and the surrounding circumstances to determine whether an employee or applicant has a claim of discrimination. 

 

Once an employee or applicant arranges a free consultation with a Discrimination Attorney, the attorney may ask certain questions such as how long was the employee employed at their job, when did the discrimination begin, why did he or she feel they were being discriminated against, how many employees are at the company, have any other employees been discriminated against and how, has this particular employee made a formal complaint, have any other employees made a complaint, and specific details on how and why the employee felt as though he or she was discriminated  against. By collecting these details, the Discrimination Attorney can advise the employee or applicant on whether he or she should continue in pursuing a claim of discrimination. 

 

Anti-discrimination laws and policies have expanded and matured over the years through the establishment of state and federal statutes. An employee can find what their rights are and what laws are in place that prohibits discrimination under California’s Fair Employment and Housing Act (FEHA) and Title VII of the Civil Rights Act of 1964. Depending on the circumstances an employee or applicant may have the choice of either filing their suit under either the Fair Employment and Housing Act or Title VII.  This is also a decision to discuss with a Discrimination Attorney. 

 

Taking legal action against an employer or organization is a hefty decision to make but by having a face-to-face meeting with a Discrimination Attorney, an employee or applicant can have a more educated decision in deciding to proceed.  Plus, there are firms that offer free consultations which provide employees or applicants with the freedom to explore their legal options without paying any up-front costs.  Again, in California, it is considered race discrimination for an employer to ask an employee or applicant about their race and it is unlawful for an employer to treat an employee adversely based on his or her race.

 

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