I am an employment discrimination attorney in Clark County, and I regularly work on race-related legal issues in the employment context.
If you live or work in Clark County, it probably did not take long to figure out that it is not a very diverse place. Based on the US Census Bureau, Clark County is 86.4% white/Caucasian, 2.3% Black or African American, 1.2% American Indian, and 4.9% Asian. The only minority category that barely breaks double digits is Latino/Hispanic at 10%. Therefore, it is likely, that if you work in Vancouver, Washington, or its surrounding areas, that your workplace looks similar to these statistics; predominately white. And, if you are not white, you are more than likely working in a workplace shaped by Caucasian workers or management.
Unfortunately, within this lopsided labor pool in this area, race discrimination still lurks, and regularly shows its ugly face. Recent examples of employment discrimination demonstrate that employers can and sometimes do pay the price for racism in the workplace.
For example, in 2016, a jury awarded $500,000 to the Plaintiff, Britt Easterly; $100,000 more than for what he was asking in a race discrimination case. One juror was quoted as saying “We wanted to make a point” why they had awarded so much for the disgusting discrimination that he endured.
Easterly, a jail guard, alleged a pattern of racial discrimination by jail managers and officers, with along other plaintiffs, alleged, “systemic and systematic disregard for the well-being of and fair treatment of the county’s African-American employees and applications for employment.”
Easterly claimed that he was denied training opportunities and that jail staff did little to deter inmates from using racial slurs, including the n-word. Additionally, Easterly discovered photos posted on doors in the jail depicting a large African-American man wearing a grass skirt, feathered headdress and dancing. The words, “871 on vacation?” were written on the top — his officer-assigned number.
A more recent case was filed in February 2020 in Clark County by African-American teacher Cora Haynes, alleging a pattern racially motivated hostility and ridicule. The lawsuit states that at the beginning of the 2016-2017 school year, “a white staff member complained to Principal [Amber] Lindley that Ms. Haynes talked ‘too Black.’
The Complaint further states that “[o]n multiple occasions in 2017 and 2018 when Ms. Haynes wore her hair in an afro or wore a black suit, white staff made jokes about it being ‘Angela Davis day’ and some would raise their fists toward her and yell ‘black power!’ On multiple occasions, white staff referred to her as ‘little miss black panther’ and ‘an angry black woman.’’’
“On one occasion in fall 2017, when Ms. Haynes had blond hair, a white staff person mocked her by referring to her as Black music artist ‘Mary J. Blige.’ On another occasion at the end of that school year when she wore her hair in curls, a staff person mocked her by referring to her as Black music artist ‘Whitney’ (Houston).’’
The lawsuit alleges that these incidents occurred throughout the school and even in faculty and staff meeting and that, to Haynes’ knowledge, Principal Lindley never took any corrective action against any of the “perpetrators.’’
These are just a couple of examples of the types of insidious racially motivated acts that can make an already imbalanced workplace a hostile one on the basis of race in Clark County.
What types of racial discrimination are illegal on the basis of race in Washington State?
In Washington, race discrimination in the workplace is governed by to main sets of laws: (1) federally under Title VII of the Civil Rights Act o 1964; and (2) in Washington under the Washington Law Against Discrimination (“WLAD”), RCW 49.60. For purposes of this article, I will focus on the WLAD, but Title VII is often similar in the analysis, but State courts have typically looked to federal Title VII case law for guidance when analyzing WLAD. Perry v. Costco Wholesale, Inc., 123 Wn. App. 783, 98 P.3d 1264 (Div. I, 2004).
Under the WLAD, it is an unfair practice for any employer to discriminate against any person in the terms or conditions of employment because of race. RCW 49.60.180(2), (3). To prevail on a racial discrimination claim under RCW 49.60.180, a plaintiff must prove that race was a substantial factor in the employer’s decision adversely to affect his or her terms or conditions of employment. MacKay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 310, 898 P.2d 284 (1995).
Under the WLAD, race discrimination can be shown by demonstrating that based on race, an employee was treated differently or impacted differently on the basis of race. For a disparate impact claim, the plaintiff must show facially neutral employment practices that affect one protected class more harshly than another and which cannot be justified by business necessity. Fahn v. Cowlitz County, 93 Wn.2d 368, 379, 610 P.2d 857 (1980). To establish a prima facie case of disparate impact, the plaintiff must prove (1) a facially neutral employment practice that (2) falls more harshly on a protected class. Oliver v. Pacific NW Bell Tel., 106 Wn.2d 675, 679, 724 P.2d 1003 (1986).
Here are a few examples of disparate treatment:
- A restaurant hires African Americans, but only employs Caucasians to be wait staff, while African Americans are put in positions like washing dishes or bussing tables;
- A trucking company does not hire Asian Americans as truck drivers because the Caucasian hiring manager believes Asians are bad drivers and more prone to get in accidents;
- A technology company hires people of different races, but does not promote Latino/a Americans, and there are text messages circulating among white managers discussing that “illegal immigrants” are a problem in the United States.
The key is being able to demonstrate a pattern of race discrimination by showing that certain groups of people are being treated differently on the basis of race.
What is a hostile work environment?
Racial discrimination can also be proven by showing a “hostile work environment” based on race. In order to show a prima facie case of the hostile work environment based on race a plaintiff must show (1) the harassment was unwelcome; (2) the harassment was because of race; (3) the harassment affected the terms or conditions of employment; and (4) the conduct is imputable to the employer. Washington v. Boeing Co., 105 Wn. App. 1, 19 P.3d 1041 (Div. I, 2000)
To determine whether the employer’s conduct was sufficiently pervasive to alter the conditions of employment and create an abusive working environment,
courts look at the totality of the circumstances. Davis v. West One Automotive
Group, 140 Wn. App. 449, 458, 166 P.3d 807, 812 (Div. III, 2007). Whether harassment is sufficiently severe or pervasive is a question of fact. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367 (1993).
In order to prove hostile work environment, the claimant must provide evidence to show that the bad actor’s conduct was sufficiently severe or pervasive. These are two separate elements. A single incident may be sufficient to create a hostile work environment if it is sufficiently severe, however, the incident will need to be extremely offensive. See: Little v. Windermere Relocation Inc., 301 F.3d 958 (9th
Cir. 2002). If you have only one incident of harassment, make sure it is very severe and attributable to the employer.
For example, in Davis v. West One Auto. Group, the court found that the employee’s alleged humiliation and self-diagnosed mental sickness from “racially charged” workplace comments raised an inference that condition resulted from hostile work environment), 140 Wash.App. 449, 457, 166 P.3d 807 (2007) ,review denied, 163 Wash.2d 1040, 187 P.3d 269 (2008). But casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law. Washington v. Boeing Co., 105 Wash. App. 1, 10 19 P.3d 1041, (Ct. App. 2000).
Verbal harassment can be enough to show a hostile work environment based on race. For example, in Alonso, employees, including Alonso’s supervisor, used the racially derogatory “Spics” to refer to some Mexicans. Alonso v. Qwest Communications Co., LLC, 315 P.3d 610, 178 Wash. App. 734 (Ct. App. 2013). Coworkers also characterized Alonso and his speech as like that of a “ghetto Hispanic,” implying that he spoke incorrect English. And, coworkers openly mocked Alonso’s speech, to the point that another employee confronted Martinez in Alonso’s defense.
The court found that the bullying was so pervasive that other employees noticed and sympathized with Alonso; one coworker opined that Alonso’s treatment was so bad that “[i]t was evident in the way that Ben Martinez treated Joseph Alonso that he did not like him and that he was trying to make Joseph’s working conditions so poor that Joseph would quit.” Id. at 140. Because of the severity of this unbridled bullying and harassment, this hostile work environment amounted to an adverse employment action.
Some other common hostile work environment cases can be proven by showing evidence of the following:
- Racist jokes;
- Using phrases such as “you people” or “boy” in reference to African Americans;
- Discrimination based on hairstyle;
- Racial slurs;
- The use of blackface;
- Racist drawings or cartoons; and
- Threats related to race.
Although many acts of discrimination are not always overt and blatant, actions such as these are completely unacceptable in the workplace, and no one should have to deal with these types of behavior.
What do I do if I am experiencing race discrimination at work?
If you believe that you are experiencing race discrimination at work, the most important thing is to be able to show through evidence or testimony of witnesses that you indeed were the subject of race discrimination. Here are a few ways to start building a case:
- Collect Evidence. Common examples of evidence that you would need are photos, notes, emails, copies of documents, text messages, voice mails – anything that can show that the discrimination is based on race. If you are wanting to record a conversation, note that the other party has to be aware and consent that you are recording. See RCW 9.73.030. The main focus for you should be, “how could I prove to a jury, aside from my own testimony, that I was the victim of racism at my job?” For example. Let’s say a co-worker drew a racist cartoon. In order to prove the discriminatory nature of it, it would be wise to keep the drawing, take a picture of it, or make a photocopy, so that when you need to prove to a jury, you can show exactly what happened.
- Document what is happening. Aside from actual evidence, you should contemporaneously record the dates and times of when you observed discriminatory behavior, and the substance of what happened. Keep a journal and keep tracks of dates and times. Memories fade and it is often hard to recall exactly when and how something happened. Take notes during or immediately after something happens to preserve as much of the incident as possible, so that you have a record, and you can recall key details later, such as in a deposition or at trial.
- Witnesses. If they are available and willing, witnesses can support you and your story, to corroborate your account of race discrimination. If at all possible, get the witnesses to confirm in writing as to what they witnessed. Again, memories fade, people often will change their stories later, or they themselves may be afraid of retaliation. If you can, get them to write down what they witnessed so that you can preserve their account as well. Find out if they have complained about similar behavior to management. Again, if you can rely on more than just your own words to convince a jury that you were the victim of racism, your case will be much stronger. Therefore, if witnesses are willing and able to back you up, recruit them and get statements from them.
- Report the Racist Behavior in Writing. This is the hardest part for many people because they are often afraid of being retaliated against or losing their job. But it is very important to report the discriminatory conduct in writing to a manager, human resources representative, or someone designated to receive such a complaint, and keep a copy of what you submitted. In your complaint, request that the discrimination stop. This is because if you report the behavior, and the company does not take steps reasonably calculated to end the behavior, this may make a claim for hostile work environment even stronger. Do not let the racism continue to go on without documenting what is happening and reporting it to management or human resources. If the employer refuses to address your concerns or takes adverse action against you, it will be much easier to prove retaliation by showing that you complained in writing. If you don’t report it writing and save a copy, it will be much harder to protect against and prove retaliation.
- Perhaps Confront the Harasser. If you are comfortable, and you feel it is safe to do so, confront the harasser and ask them to stop. You will want to do this in writing as well. Do not engage in any retaliatory behavior or engage in any discrimination, but many times if you ask the person to stop, they may realize what they are doing and stop. For example, let’s say your manager calls you “boy” and refers to African Americans as “you people” during a safety meeting. In that instance, it might be a good idea to tell the person that you find it offensive that he uses such terminology, to ask him/her to please stop and then write that person an email later just to confirm that you spoke: “As I told you this morning at our safety meeting at 9am, you called me ‘boy’ and referred African-Americans as ‘you people.’ I find such terminology offensive and as I said this morning, please stop using such words.” Once you do this, print out the email that you sent. If you want, you can also forward such an email to management or human resources. Again, you may not feel comfortable confronting someone, but this may help solidify a record of evidence and you will be able to control your narrative in the future and prove your story later to others, including a jury if necessary, especially if you are the only witness to such behavior.
- Contact an Attorney. If you feel that you are the victim of race discrimination in the workplace, contact an attorney sooner rather than later. Attorneys can often help put you in a much better position if you contact them before the employer takes adverse action against you. If you or someone you know is the victim of unwanted and egregious race discrimination in the workplace, contact a lawyer that can help you to formalize a plan to correct unwanted race discrimination, as it is your substantive right to be free from harassment in the workplace.
Colin McHugh is an experienced plaintiff-side employment attorney and has represented individuals in Washington state, federal, and administrative courts in matters including but not limited to race discrimination, sexual harassment, whistleblower claims, and more. For more information, go to his bio here.
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Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue you should consult an attorney.