Race Discrimination

Under the FEHA: It is unlawful for an employer that employs five or more employees to refuse to hire; to discharge or to terminate; to refuse to select or to bar or discharge an employee from a training program leading to employment; or to discriminate against the person in compensation or in terms, conditions, or privileges of employment because of the employee's race or color. California Government Code sections 12926(d), 12940(a).

Title VII uses language similar to that found in the FEHA to eradicate race discrimination in the workplace. Generally, Title VII, rather than the FEHA, applies to federal land located within California. Lockhart v. MVM, Inc. (2009) 175 Cal.App.4th 1452, 1457. In Equal Employment Opportunity Commission v. Wawona Property Management, Inc. dba The Redwoods in Yosemite, U.S. District Court for the Eastern District of California Case No. 1:09-CV-016903 LJO-SKO, an operations manager for a vacation rental company within Yosemite National Park expressed a disdain for the Latino employees, stating Mexicans had given him a headache and he did not like people of color. The operations manager verbally abused and unfairly disciplined longtime seasonal Latino employees. In settling the case, Wawona Property Management, Inc. agreed to pay $165,000 and implement a variety of anti-discrimination measures.

Although claims of discrimination based solely on one's skin color are sparse, such discrimination based solely on the color of one's skin is indeed a basis for a discrimination claim. Walker v. Secretary of Treasury, I.R.S. (ND GA 1989) 713 F.Supp. 403, 405-finding actionable under Title VII discriminatory acts by a dark-skinned black supervisor against a light-skinned black employee on basis of the employee’s lighter skin color. Thus, the FEHA protects employees from discrimination motivated by skin color in addition to protecting them from discrimination motivated solely by race. In addition, anti-discrimination laws protect not only minorities, but members of all races. Griggs v. Duke Power Co. (1971) 401 U.S. 424, 430-31.

An employee does not need to be aware of precisely why the defendant is discriminating against the plaintiff, "whether it was his accent, his skin color, his ancestry or his nationality." If an employee claims that he or she was subject to discriminatory hateful treatment because of his or her "membership in a group which is perceived" as different "when measured against other employees at his workplace, and which is not based on his birthplace alone," it is enough for the plaintiff to have a claim for racial discrimination under the FEHA. Sandhu v. Lockheed Missiles & Space Co. (1994) 26 Cal.App.4th 846, 857.

For example: the fact that a plaintiff is East Indian, which is normally considered Caucasian, does not preclude the Plaintiff from bringing an employment discrimination claim. Sandhu, supra, 26 Cal.App.4th at 858.

An employer's animus towards an employee's national origin or ancestry may be the basis for racial discrimination, even though national origin and ancestry are separately protected classes under the FEHA. California Government Code section 12940(a).

The protection given to employees extends to employees who are associated with members of a protected class. For example, in Watson v. Nationwide Ins. Co. (1987) 823 F.2d 360, 361-362, a Caucasian plaintiff brought a claim for discrimination based on the fact that she was given differential treatment by her employer because she married a black man.

To bring a claim for racial discrimination an employee needs to prove that the employee:

• belongs to a particular race,
• that the employee's job performance was satisfactory, or that the individual was qualified for the job which they were not hired for,
• that the employee was subjected to discriminatory conduct, (Ex: being discharged from work)
• and that other employees not of the same race were not subjected to the discriminatory actions of the employer. (Ex: others not of the same race retained similar jobs and the employee who is bringing the claim lost his or her position to an individual of similar qualifications to the employee but not of the same race). See L.A. County Office of the Dist. Atty. v. Civil Serv. Com (1997) 55 Cal.App.4th 187, 201.

An unpublished case, Clark v. City of Ontario, illustrates the hideous nature of race discrimination in the workplace. In 1986, the City of Ontario Fire Department hired Clark. Remarkably, at least up to the time that his employment was terminated in 2016, he was the last African American hired by the fire department. During his employment, Clark observed that Caucasian employees, who were similarly situated, were given preferential treatment as to job assignments, promotions, and compensation.

In 2002, the then current fire chief, Bowman, unfairly demoted Clark because Clark would not cooperate with Bowman's efforts to allow Sam's Club to sell fireworks illegally.

In 2011, Clark became fire chief. As fire chief, he wanted to hire more “firefighters of color.” Applicants were screened by a board. If approved by the board, they were interviewed. Some African Americans passed the screening step, but none passed the interview step. Clark asked to participate in the hiring process, but he was not allowed to do so.

In 2013, a new person became City Manager.

In July 2015, the city manager asked Clark to promote a battalion chief to the position of deputy fire marshal. Clark refused to do so, because the battalion chief in question did not meet the basic qualifications required for the position of deputy fire marshal.

Later in September 2016, the city manager and Bowman (who by that time was a city council member) discussed with Clark his refusal to promote the battalion chief. Bowman told Clark, “You need to go because you are not in touch with the culture of the Department anymore.”

From that point on, because Clark had refused to participate in the city manager's “illegal hiring practices” and other improper practices, the city manager and certain other City Council officials set out to terminate Clark’s employment.

In October 2015, the city manager demanded that Clark retire. Clark refused, so the city manager placed Clark on administrative leave with pay. In December 2015, without Clark's consent, the city manager announced that Clark was retiring that month. In reality, Clark remained on administrative leave.

Bowman always treated Clark differently from others. Bowman would yell at him, berate him, and call him a “mother fucker.” On March 14, 2016, when Bowman was talking to another city council member and the city manager, he referred to Clark with the N-word and as a “coon” and a “token Black.” The city manager told Bowman, “I will take care of this. I have a plan.”

On March 23, 2016, the city manager announced that the battalion chief Clark had refused to promote was being appointed as fire chief. The city council later confirmed the appointment even though Clark still had not retired nor been terminated. In June 2016, the City terminated Clark.

As required to pursue an FEHA claim, Clark filed a complaint with the Department of Fair Employment and Housing (DFEH), alleging discrimination, harassment, and retaliation. The DFEH issued him a right-to-sue letter.

Clark filed a lawsuit. The trial court dismissed the lawsuit on the ground that Clark alleged no facts showing that he was discriminated against based on his race. Clark appealed. On appeal, the City claimed that Bowman's racial statements were irrelevant because as a city council member Bowman could take official action only as one member of a majority of the board, and he had no official control over the city manager's hiring and firing decisions. Nonetheless, the Court recognized that one could infer that an individual city council member has substantial unofficial influence over hiring and firing decisions. Moreover, after Bowman made the discriminatory remarks, the city manager said, “I will take care of this. I have a plan.” The Court also noted that the term “token Black” was more than just a slur; it was a virtual confession of discriminatory intent. It showed that, in the mind of at least one city council member, having hired Clark, the City could get away with discriminating against other African American job applicants. This conclusion was bolstered by the fact for at least 30 years, except for Clark, the department did not hire a single African American in any position. The Court of Appeal concluded that the trial court erred in dismissing the case.

If you have experienced race discrimination at your workplace, or if you believe your employer or former employer otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.