“Does this sound like I have a case of discrimination?”

Question: I am an African American woman. Recently, my boss has stated some very negative things about my race, right to my face. For example, she stated that she feels that black women emasculate their men by being overly aggressive. I objected to this gross racial generalization.

I went through proper procedures, and all “heck” broke loose. First, management tried to dissuade me from filing a complaint. When that didn’t work, certain high-level employees tried to intimidate me. When that didn’t work, one of the Human Resources managers came to our offices and investigated what happened. The investigation didn’t come to any conclusion.

Then they tried to set me up by placing me on a “final warning.” Instead of the “final warning” being handled confidentially, as company policy requires it to be, my boss told people in our office and even outside our company what happened.

I’ve been employed by this company for nearly three years, and have all excellent performance reviews – well, at least until I stood up and objected.

I am thinking of filing a complaint with the Equal Employment Opportunity Commission (“EEOC”) and our local Labor Board. Any thoughts?   

         Charlotte, North Carolina

Answer: T.T., from what you have told me, it would seem you have a good case of illegal retaliation in response to your complaint of race discrimination, under both state and federal laws. I am not sure you have a case for race discrimination, which is different than retaliation. Let me share with you my thinking:

First, illegal discrimination and illegal retaliation for objecting to discrimination, are two separate (though related) violations of law. It’s like speeding and driving while drinking: they may be related, but they are not the same thing. And just like speeding and driving while drinking, you can be found innocent of one, but guilty of the other. In other words, a person could be found not to have discriminated, but they could be found guilty of retaliating against an employee who – even incorrectly – reported discrimination.

Second, from the words that came out of your boss’s mouth, she seems to have a negative view of African American women, and a troubling need to tell you about it. That would suggest to me that she may well, indeed, not like you at least in part because of your race. However, from what you have reported, this was an isolated, single mention of your boss’s view of African American women. At least from what you wrote, I see no long-term, continual course of such conduct. Your past good reviews suggests that your boss has found you to be an excellent performer. A single comment does not, in itself, make a case of race discrimination in employment.

Third, since you received excellent performance reviews in the past, and a decidedly negative one now – after you made an objection to the open expression of racial animosity – there would seem to be illegal retaliation here. Retaliation in the law requires the presence of three distinct elements: (1) engaging in a legally protected activity (here, your complaints about the racially hostile language); (2) a negative employment action (here, your final warning); and (3) a “causal link” between number (1) and number (2) (here, it seems that your sudden poor rating was a result of your complaint.) 

For these reasons, I think that you have, at the least, a “prima facie” (Latin words for “at first view, before full investigation”) case of illegal retaliation. I urge you to file a formal complaint with the federal E.E.O.C. as well with the North Carolina Department of Labor “Employment Discrimination Bureau,” or “EDB.” Both agencies can perform the full investigation your facts and circumstances warrant. You can find assistance at www.nclabor.com/edb.

Discrimination is rooted in ignorance. We should not deny it, or be intimidated by it, but rather confront it, head on, with both respect and determination. It is the only way to defeat it, and defeat it we must.

Retaliation for standing up and objecting to discrimination is, to my mind and in the law, a worse violation of the law. It is not rooted in ignorance, but rooted in intentional vengeance. It is doubly important to stand up against illegal retaliation.

I hope this helps you in your decision about what to do. If this has been helpful, please tell at least one or two friends about our blog . . . we would so very much appreciate that.

        Best, Al Sklover   

© 2010 Alan L. Sklover, All Rights Reserved.