Color Discrimination

Workplace color discrimination against employees violates the State Law Against Discrimination, N.J.S.A. 10:5-1, as well as the federal Title VII of the Civil Rights Act of 1964. While most people understand that workplace race discrimination is unlawful, they do not understand that discrimination in employment because of color is also illegal and different than race discrimination. New Jersey’s color discrimination attorneys of Lenzo & Reis are experienced in understanding the differences between the two types of claims and successful in pursuing justice for workers discriminated against on the basis of their color.

Race discrimination occurs when someone is discriminated against because they are African-American, Asian, Latino, or any other race, including white. Discrimination on the basis of color is different in that it involves discrimination (meaning treating someone less favorably) because of the complexion of their skin. That means that an employer who treats, for example, dark skinned African-American or Latino employees less favorably than light skinned African-American or Latino employees (or vice versa) because of the tone or color of their skin is not engaging in race discrimination but is engaging in unlawful color discrimination. The New Jersey color discrimination attorneys of Lenzo & Reis have handled claims of color discrimination where supervisors of the same race as their subordinates discriminate against employees with lighter and/or darker skin color. We have seen and handled various such claims.

Like any form of discrimination, illegal workplace color discrimination takes many shapes and forms. In its broadest terms, color discrimination involves targeting employees for less favorable treatment because of the color of their skin. Some specific examples of color discrimination known as adverse employment actions directly impact employees’ pay and/or continued involvement and may involve actions like

• imposing harsher discipline on employees of one skin color than another,
• giving workers of a particular skin color lower pay increases than their similarly performing peers of a different skin color,
• targeting employees of a particular skin color for firing or termination,
• refusing or failing to hire employees because of their skin color,
• paying employees of particular skin colors less than their peers who are of another skin color,
• making demotion decisions based on skin color,
• refusing or failing to promote employees because of their skin color,
• transferring employees to less desirable work locations,
• giving workers less favorable work assignments, and
• assigning sales accounts to employees based on their skin color.

Unlawful color discrimination may also involve more subtle actions or conduct that does not directly affect pay or continued employment but is nonetheless just as hurtful, demoralizing, and harmful such as

• calling out performance when employees with a different skin color are not similarly criticized,
• making fun of employees because of their skin color,
• displaying offensive symbols, pictures or signs based on skin color,
• frequent or particularly bad teasing, negative comments,
• making fun of, and
• generally treating employees more harshly because of the color of their skin.

Sometimes workplace decisions are not motivated by conscious discrimination but rather by unconscious discrimination – biases that exist outside of our control and that sometimes we do not even realize we harbor. Implicit bias often results in supervisors or managers systematically yet unknowingly favoring particular groups of employees over others. In fact, studies have shown that unconscious bias often invades hiring, promotion, pay, and other benefits’ decisions affecting workers and even the type of performance evaluations and feedback given to employees. Even though implicit bias exists in the unconscious, it is still against the law. In fact, the New Jersey Supreme Court in 1993 made clear that employees are not required to show that their employers “intentionally discriminated or harassed” them or even “intended to create a hostile work environment.” Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993).

To prove discrimination on the basis of color, employees must be able to establish that they were subjected to harsher or less favorable treatment because of the color of their skin. How that is done depends on various factors such as whether there is direct evidence (meaning smoking gun evidence) of discrimination or not and whether the employee was subjected to an adverse job action or a hostile work environment. It is important to understand that our courts do not require employees to have direct evidence of discrimination. In fact, both the New Jersey Supreme Court in Zive v. Stanley Roberts, Inc., 182 N.J. 436 (2006) has recognized that employees seldom have smoking gun evidence of discrimination. That is because employers who knowingly discriminate are not likely to leave written records revealing their unlawful intentions or tell anyone that they are taking unlawful actions. Chipollini v. Spencer Gifts, Inc., 814 F. 2d 893 (3d Cir. 1987); LaMontagne v. American Convenience Products, 750 F. 2d 1405, 1410 (7th Cir. 1984). In the end, proving the existence of discrimination on the basis of color involves the same methods as those used for different forms of discrimination and yet proving color discrimination can be a bit more factually nuanced.

Given that many cases of color discrimination do not involve direct evidence (meaning smoking gun evidence) of discrimination, the courts impose what is known as the burden-shifting methodology enunciated by the Supreme Court of the United States in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). That methodology was adopted by the New Jersey Supreme Court in 1978 in Peper v. Princeton University Board of Trustees, 77 N.J. 55 (1978). The way that works is that employees claiming that they were subjected to adverse employment action such as an illegal firing or demotion because of color discrimination have to establish that:

1. they are in a protected class (meaning they have a particular skin color),
2. they were qualified to perform their job duties,
3. they were subjected to an adverse action (like being demoted or fired), and
4. the discriminating employers sought to hire people for those jobs.

Once the employee establishes the existence of those facts, the employer is required to provide a legitimate reason for its actions. Then the employee must then show that the employer’s reason is not credible and/or not the real reason for its adverse employment decision. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999); St. Mary's Honor Ctr., 509 U.S. 502 (1993).

If there is direct evidence (smoking gun evidence) of color discrimination, courts do not use the McDonnell Douglas methodology but, instead, use the framework set out in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Under that framework, the employer must prove that even if its actions were motivated by discrimination, it would have made the same employment decision regardless. Starceski v. Westinghouse Electric Corp., 54 F.3d 1089 (1995).

The New Jersey Supreme Court in 2002 articulated a different set of standards to prove unlawful harassment, or what is commonly referred to in legal circles as a hostile work environment in Shepherd v. Hunterdon Developmental Center, 174 N.J. 1 (2002). To prove the existence of a hostile work environment based on color, employees need to establish that

1. the behavior would not have occurred if not for his or her color,
2. the conduct was either severe or pervasive,
3. a reasonable person of the employee’s color would believe that the conditions of employment have been changed and the working environment is abusive or hostile.

While some of these methods of proving color discrimination or harassment may seem overwhelming or even confusing, this is exactly what the experienced New Jersey color discrimination attorneys of Lenzo & Reis are so good at doing.

New Jersey’s color discrimination attorneys at Lenzo & Reis know how to put an end to discrimination and obtain justice for employees discriminated against on the basis of their color. We have not only been able to put an end to workplace discrimination for some clients but we have also gotten high value and even multi-million dollar settlements and verdicts for other clients discriminated against at work. We can help you, too.

If you are being or have been discriminated against at work because of your color, contact the experienced New Jersey discrimination attorneys at Lenzo & Reis either by phone at 973-845-9922 or by completing our online form by clicking here.

We proudly represent employees throughout all of New Jersey including Hoboken, Jersey City, Morristown, Somerset, and Hackensack.