Race Discrimination

Rob Wiley: My name is Rob Wiley and today I'm talking with Austin employment lawyer Colin Walsh about race discrimination. So Colin Walsh, we've been dealing with race discrimination basically for the entire history of this country. Is it something that we've moved past, or do you still see cases in which employees are discriminated against in the workplace because of their race?

Colin Walsh: Unfortunately, we do still see cases where people are being treated differently because of their race. It is, unfortunately, still alive and well.

Rob Wiley: In terms of the discrimination that you see, it occurs in the workplace?

Colin Walsh: Sure, where we probably see it the most would be in promotion opportunities or benefits or in training opportunities, where people of a different race are not being given the same consideration for a promotion or to go and receive additional training to enable them to get that promotion. We'll see people being treated differently in terms of privileges of employment. Another one we see is, for example, vacation leave or sick time or something like that, where employees of a particular race are usually denied these benefits.

Rob Wiley: Well, and I think that there's oftentimes some sort of thing that happens at work that will lead to a discriminatory event. You know, a new supervisor comes in or some sort of breakroom-type discussion comes up about something like politics or Black Lives Matter, and then all of a sudden, it's like that employee has a target painted on their back. If an employee feels like they're experiencing discrimination because of race, what should they be doing?

Colin Walsh: Well that employee should definitely contact an employment lawyer, to figure out whether they are being discriminated against because of race. An employee, if he or she's suspicious of discrimination, is really in the best position to know whether or not they are being discriminated against or treated differently.

Rob Wiley: I think employees are pretty-good barometers of their workplace. If you're going to work every day and you feel like your employer is treating you differently or singling you out from other employees, there's a good chance that it's not just you, that really is going on. But of course with all discrimination cases, you're trying to prove what someone is thinking, which has its own issues. And, of course there's always direct evidence, and a lot of our laws were passed in 1964, and in 1964 you didn't have to look very hard to see direct statements of race discrimination. But today, so many things are done with a wink and a nod, how do you prove discrimination through indirect or through circumstantial evidence?

Colin Walsh: Well, the way you would prove race discrimination through indirect or circumstantial evidence would to be look at the way other employees are treated in similar positions. So, for example, if another employee is allowed to come in 30 minutes late every day but you, as somebody of a different race, are written up repeatedly for coming in 30 minutes late, that would be good circumstantial evidence that your race is the factor in the write-ups.

Rob Wiley: The most-important thing for an employment lawyer is to be able to cast doubt – that's the legal term – to cast doubt on the employer's stated reason for why they fired you or why they didn't hire you and there's a lot of different ways that you can cast doubt. First off, you could just disprove it. You know, if they said you were late but you weren't late that's one way to do it. Another way is, if you can show a selective application of the law or of the rule that only you got written up for being late but nobody else was. And then you can do other things that just cast doubt on the employer's reasoning. If they're saying you're being fired for performance but all your performance reviews were good, and they didn't give you a write-up or a verbal warning and it just became a surprise that you were terminated, I think that that undermines an employer's stated reason that it was performance as well. But that really is where the lawyering comes in, and getting into the case and seeing about how you can most forcefully argue that with an employer and get some kind of relief. I think that there are many ways in which we've seen race discrimination happen; people not being hired for jobs, people getting fired. A lot of times you get a new supervisor and that supervisor obviously has biases and prejudices, and then an employee finds themselves out of a job. One other thing that I wanted to touch on, obviously our race discrimination laws, they protect people who are minorities; African-Americans, Asian-Americans, Hispanics, but what about Caucasians? Are white people protected from race discrimination in the workplace as well?

Colin Walsh: Yes, they are protected from race discrimination. The law makes no distinction between which races are protected or not. It is against the law to discriminate against any race, including white people, or Caucasians.

Rob Wiley: There's a fairly short timeframe that someone has to take action if they think that they've been discriminated against.

Colin Walsh: Yes, the statute of limitations, the timeframe to take action, is very short. it's 180 days if you want to preserve your state law claims. If you want to bring a federal claim, you have 300 days.

Rob Wiley: And one thing that people need to be aware of is that oftentimes that clock starts ticking when you knew or should have known about the action. So if someone says you're going to be fired in a month your clock may start ticking when you got notified you're going to be terminated, not when the actual termination happens. So it's extremely important to talk to an employment lawyer as soon as possible. And of course, if someone suspects that they're going to be terminated because of race, there's no reason why you shouldn't get ahead of the ball and talk to an employment lawyer before that happens. Thank you, Colin.

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