Law Office of Nicole Conger Pllc Race Discrimination


Many people believe that younger generations in America are more tolerant and open-minded so that racism will somehow end on its own once these younger generations hold more power. While it is true that younger generations are more tolerant than the older ones, racism is unfortunately not going anywhere any time soon.

In employment cases, race discrimination typically surfaces when an employee is either seeking to move up to a more lucrative position at a company, transfer, or even as a first time applicant, for a supervisory role. These individuals bring a vast array of experiences to the table including training, coaching, certificates from trade schools, degrees in night school, associate degrees, bachelors’ degrees, masters’ degree and even doctorates’ degrees in Executive Level positions. The irony that many still face, is that in virtually each case, the successful applicant is a White man who is less qualified.

Federal and Texas law prohibit employers from discriminating against employees because of their race, ethnicity, color, or national origin. Discrimination can happen in many ways: an employer may fire or refuse to hire a person; give an employee less favorable treatment, fewer job or promotional opportunities, or less pay than others; or subject an employee to harassment or racial or ethnic slurs. The law also prohibits employers from using policies or practices that may not be intentionally racist, but that have the effect of treating minority employees or applicants less favorably than whites. For example, many written examinations, promotional policies, and criminal or credit screening policies have been shown to have a discriminatory impact on certain racial groups.

The EEOC (the federal agency that enforces Title VII) states that discrimination involves treating someone-an applicant or employee-unfavorably because he or she is of a certain race or because of personal characteristics associated with race.

“Reverse-race” discrimination can also occur when the victim and the person who inflicted the discrimination are the same race or
color. The term “color” usually refers only to skin color, pigmentation, or complexion. The term “race” usually refers to both
physical characteristics and ethnological classifications that include facial features, hair texture, and skin color.
Race discrimination also can involve treating someone unfavorably because the person is married to (or associated with) a person
of a certain race or color.

“National origin” discrimination involves treating people-applicants or employees-unfavorably because they are from a particular
country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if
they are not). These cases may proceed under the EEOC and are governed by Title VII and the IRCA.

The Immigration Reform and Control Act of 1986 (IRCA). The Act makes it illegal for an employer to discriminate with respect
to hiring, firing, or recruitment, based upon an individual’s citizenship or immigration status. The law prohibits employers
from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation, or government
contract. Employers may not refuse to accept lawful documentation that establishes the employment eligibility of an
employee, or demand additional documentation beyond what is legally required, when verifying employment eligibility.
Contact The Law Office of Nicole Conger, PLLC to see if your rights are on the line.

When confronted with a discrimination claim, employers rarely admit that the issue was about race. Instead, employers usually try
to rationalize their behavior by picking apart an employee’s qualifications or performance.

One of the first things to determine is whether the employer is being equally abusive toward all employees or just certain
employees. An example could include a white male employee being rewarded as “outspoken,” while a black female employee might
be considered “uppity,” or out of line, for the same behavior. Indeed, women of color face biases unique to their racial or ethnic
background as well as their gender. This is also true in other protected categories, including age, gender, and similar LGBT related

The Texas Labor Code and Title VII both prohibit employers from discriminating against employees in hiring, firing, pay, promotions,
suspensions, training, and any other term or condition of employment. Harassment based on race includes racial slurs, offensive
comments, or jokes based on race. Additionally, the law also prohibits the use of racially charged symbols or comics in the
workplace. A racially neutral employment policy may also violate the law if it has a negative impact on the employment of one race
other that of other races.

Workplace discrimination can be as overt as moving an employee off of a key assignment, or failing to promote them even though
they are qualified. There are different manifestations of racial discrimination in the workplace. It can take the form of harassment
as well as being denied promotions and raises.

Employers can also commit illegal discrimination in a more subtle fashion. The term “implicit bias” is where someone of one race
may unconsciously treat someone from another race differently. There are “micro-aggressions,” or tone-deaf comments about a
person’s race or ability, like expressing surprise at how articulate an employee is.

Often, Human Resources and hiring committees are contentious when an employee actually advocates for diverse candidates. Some
discriminatory behaviors surface when candidates are dinged for not being fast enough to solve problems, not having internships at
prestigious companies, or those who took too long to finish their degree. Employers are also bold enough to assert that a potential
employee or new hire did not carry the right “cultural fit.”  Behind the scenes, this too often means someone who is similar to the
person doing the hiring.

The Civil Rights Act of 1866 is often referred to as Section 1981, codified as Section 1981 in the 42nd volume of the United States
Code. Long before it was codified, however, it was a law that changed the entire landscape of rights for African Americans in the
United States.

The Civil Rights Act of 1866 provided a long list of rights that were once reserved only to white men. Section 1981 gave certain
protections for persons of color, including the right to make and enforce contracts. Traditionally, this includes employment
contracts as well. This law works in conjunction with Title VII of the Civil Rights Act of 1964, as amended. Section 1981 specifically
prohibits employment discrimination based on race. It is framed in the context of contracts, but it reaches to virtually any aspect of
employment, including harassment allegations. Though these rights extend to virtually every area, they provide critical rights to
employees whose employment contract has been violated by their employer in some manner. “Contractual” relation may include
independent contractors, subcontractors, freelance workers, or part-time at-will employees.

In many ways, Section 1981 is more extensive than Title VII as it applies to all employers and does not require 15-employee
threshold. Section 1981 also does not maintain a “cap” on compensatory damages as a remedy in any form.

On a broader level, both statutes outlaw employment discrimination based on race. Five key differences exist between these two
related laws that can make or break your case.  Contact The Law Office of Nicole Conger, PLLC to determine if your rights have been
violated. She articulates the most persuasive arguments for her clients in these cases.

Title VII, but not Section 1981, prohibits disparate impact discrimination. Title VII outlaws intentional discrimination based on
race and other protected characteristics during the hiring process. It also prohibits using hiring practices that are neutral on
their face (such as written tests), which have a discriminatory outcome: disproportionately excluding African-American, and
other protected classes of applicants.

Under the “disparate impact theory,” even if the employer did not intend to exclude protected groups, if the practice
ultimately has the effect of rejecting an excessive number of otherwise qualified, the illegal employment practice may violate
Title VII. In contrast, Section 1981, only prohibits intentional discrimination.

Section 1981 does not require an EEOC Charge to be filed. To file a Title VII lawsuit in court, an employee must fist have
“exhausted their administrative remedies” by filing a Charge of Discrimination with the Equal Employment Opportunity
Commission (EEOC), within either 180 or 300 days depending on where the employee works. This distinction, in Section 1981,
is particularly important if an employee missed the deadline to file an EEOC Charge because the employee may still be able to
assert a claim under Section 1981.

Section 1981 carries a longer Statute of Limitations. Claims asserted under Section 1981 though have a significantly longer SOL
for filing a lawsuit. An employee may file a Section 1981 within 4 years of the violation. 

Section 1981 has no maximum cap on damages. If an employee wins their Title VII employment discrimination case, a cap will
apply on the amount of damages that the jury can award.  Under Title VII, the most that an individual employee can receive
for compensatory damages (to compensate for emotional distress and out of pocket expenses for medical treatment) and
punitive damages (designed to punish an employer for particularly malicious or reckless discrimination) is $300,000.

Other forms of monetary damages, including back pay and front pay, are also available under Title VII and are not subject to a
cap. However, no cap on monetary damages exists for a lawsuit brought under Section 1981.
Section 1981 applies only to race discrimination. Title VII covers more classes of people.

To determine if you are a victim of race discrimination or retaliation, contact The Law Office of Nicole Conger, PLLC today. She
passionately discusses and creates options, remedies, and demands, depending on where her clients are in each stage of an
employment case.

Free Case Evaluation

The Law Office of Nicole Conger, PLLC
Austin Office
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Suite 213
Austin, TX 78730

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Call: (512) 413-4260