If you have been fired recently (within the last three years), and you think you can prove the motivation was, at least in part, your race, then you may have legal recourse under the Washington Law Against Discrimination. But what do we mean by race? And how do you prove that your termination was motivated by your race, since most employers do not advertise racist views?
What is Race?
Interestingly, race is not actually grounded in biology: not one characteristic, trait or even gene distinguishes all the members of one so-called race from all the members of another so-called race. Race is therefore a social concept. It is also a fairly modern social concept.
Ideas about race are acted upon. Our nation has engaged in policies that promote some “races” over others: for example, slavery and the genocide of Native Americans are obvious examples.
We know that some people treat people differently because of a perception that they are a member of a racial group, such as American Indian, Asian, Latino, White or Black. There are also perceived distinctions within these generally understood racial groups, for example, based on nationality. Judgments about such people, based on their so-called race, are acted upon, including within the employment context.
How do I prove race motivated the decision to fire me?
Under the Washington Law Against Discrimination, an employee must prove that race was a “substantial factor” in the decision for fire him or her. A “substantial factor” means a significant motivating factor in bringing about the employer’s decision. “Substantial factor” does not mean the only factor or the main factor in the challenged act or decision.
There are two types of evidence that can be shown to prove this. The first is direct evidence, such as evidence of your manager using a racial slur against you when you were being fired. The second is circumstantial evidence, such as evidence that a particular manager fired you and 3 other employees of the same race while retaining poorly performing employees of another race.
In most situations, perhaps the most important piece of evidence relates to your performance as an employee. If you have been performing well, as demonstrated through objective, measurable, and reliable standards when compared to other similarly-situated employees of a different race, then you have the foundation for a successful claim. That is because most employers generally rely on an employee’s performance to justify terminating him or her.
However, employers are justified in terminating employees for workplace policy violations. For example, if you have missed scheduled work for several days without any justifiable excuse, then your employer is likely justified in terminating your employment even if you were the best performing employee.
As mentioned in prior blog entries, most employment is “at will” in Washington State. That means most employers are free to terminate an employee for any reason or no reason, so long as the termination is not motivated by an unlawful reason, such as being based on racial animosity.
It is therefore critical for you to provide evidence that the termination was based on your race.
What evidence do I need?
In addition to evidence that you have not violated workplace policies and have been a good performer, evidence that the decision used to justify firing you is false, is extremely helpful. For example, if your employer claims you were fired because you were late, but you can prove that you were not, and the employer knew this, then it is clear that you were fired for some other reason, perhaps because of your race.
Likewise, even if you were late, but others or a different race who have also been late but have not been fired, provides circumstantial evidence of racial animus.
On the other hand, if the decision-maker who hired you is also the same perform who fired you, then you will have a very difficult time proving your case when that person knew of your race at the time of hire.
Finally, you may believe you were fired because of your race, but find it difficult to prove this. However, based on knowing that you were treated differently during your employment, even based on just small things, like not being invited out socially when others were, or how people interrupted you, or generally treated you with less respect, you might be able to show that you were indeed treated differently even if the decision-maker did not consciously know it him or herself. This type of unconscious racism is called Implicit bias, and it is very real and destructive. If an employer fires you based on your race, even if he or she isn’t consciously aware of this, this is still unlawful.
What remedies can I get if I can prove I was fired because of my race?
Successful employees who can prove that race was a substantial factor in the decision to fire them are entitled to their wage loss, emotional distress, and having the employer pay their attorneys’ fees and litigation costs (federal laws also may allow for the recovery of “punitive” damages, which are meant to punish the employer). Your wage loss is measured by how much you would have earned if you would have remained employed, versus how much you have been able to earn since your termination. Emotional distress damages reflect the emotional pain and suffering that arose because of the termination and its aftermath. The employer will also be required to pay your attorney’s fees and the costs of the lawsuit if you win.
How should I proceed now?
If, after reading this short article, you think you may have been fired because of your race, you should speak with an experienced employment attorney right away. Please feel free to contact our office for a free consultation.