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The Black Lives Matter (“BLM”) movement, born out of the unjust acquittal of Trayvon Martin’s murderer, George Zimmerman, organizes against state-sanctioned violence targeting Black communities across the United States. Co-founded by Alicia Garza, Patrisse Cullors, and Opal Tometi, BLM is “an ideological and political intervention in a world where Black lives are systematically and intentionally targeted for demise. It is an affirmation of Black folks’ humanity, our contributions to this society, and our resilience in the face of deadly oppression (Black Lives Matter).” The BLM movement has not only organized against police violence terrorizing Black communities, it has exposed the deeply embedded racial inequities permeating all aspects of American society upheld by white supremacy and the carceral state.
The workplace is no exception. The demand to end state-sanctioned violence perpetrated against Black lives has also sparked conversations surrounding systemic injustice and oppression in our workplaces. Black, Indigenous, and People of Color (“BIPOC”) routinely experience racism in the workplace, from disparate treatment to physical violence. Economic justice is inextricably linked to racial justice. BIPOC communities deserve to live and work free from racial injustice and violence. This is a protected right.
This summer’s protests against police violence towards Black lives – ignited by the police murders of George Floyd, Breonna Taylor, Elijah McClain, Tony McDade, and countless others – led to a national outcry for justice, accountability, and liberation. Many employers participated by taking a public stance against racial injustices; some for the first time. Employers were forced to turn introspectively and confront their active participation in systemic oppression and racial injustice. As a result, some made commitments to providing tools to identify and unlearn unconscious racial bias, to workplace diversity, and to establish better practices in addressing incidents of racial harassment and discrimination.
However, strides forward continue to be threatened. On September 4, 2020, President Trump issued a Memorandum for the Heads of Executive Departments and Agencies directing them to identify and end all contracts or agency spending related to training on critical race theory and white privilege, calling the training “divisive un-American propaganda.” The timing – days before our nation’s holiday commemorating the achievements of the labor movement in advancing racial, economic, and social equity in America, and after months of continued protest demanding racial justice and police accountability – was deliberate.
The memorandum’s assessment on the divisive impact of anti-racism training is incorrect. Employers who provide anti-racist education can identify and dismantle barriers to equity. They are better equipped to prevent and remedy racial discrimination and harassment, creating safer environments where workers of color can thrive. Employers communicate they value their BIPOC employees when they work to disrupt racism and their own racial biases, leading to improved morale, more open collaboration, and increased workplace safety for BIPOC employees. As more workplaces take this key first step, it is critical that we fight against efforts, such as the memorandum, aimed to reverse it. As we await President-Elect Biden’s inauguration, we hope for a new, inclusive, and forward-thinking national agenda and the establishment of stronger protections for BIPOC workers.
We commend employers across the nation who have participated in these collective efforts. But, more work is needed to end racism. Black workers and workers of color continue to be discriminated against and targeted with workplace violence, especially so in workplaces where employers perpetrate or fail to correct acts of racial harm. California laws, such as the Fair Employment and Housing Act, the Ralph Civil Rights Act, the Equal Pay Act, and the Labor Code, may aid the pursuit of justice and healing.
The Fair Employment and Housing Act
The Fair Employment and Housing Act (“FEHA”) prohibits workplace discrimination and harassment based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status ….” (Government Code section 12940.) This includes discriminatory hiring practices and disparate treatment during the employment relationship (e.g. unequal opportunities for advancement or the assignment of unfavorable duties outside of the job description to only employees of a certain race). Workplace harassment likewise takes many forms, from racially insensitive jokes to the unambiguous and overt use of derogatory slurs. Whatever the harasser’s intent may be, it does not nullify the harmful impact of harassment. Employees have the right to a workplace free from racial harassment and discrimination.
For more information about the FEHA, please visit the California Department of Fair Employment and Housing website.
The Ralph Civil Rights Act
The Ralph Civil Rights Act affirms that individuals have the right to be free from violence or threats of violence based on “sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status ….” (Civil Code section 51.7.) The Act’s broad protections extend to the workplace. Employees who are subjected to or threatened with violence may have a claim. Workplace violence is not limited to physical altercations; it includes verbal or written forms of violence like the use of racial epithets and hate symbols (e.g. swastikas). Regardless of profession or work culture, California law is clear: everyone has the right to live free from violence. Employers have the duty to provide a safe workplace and protect workers from violence or threats of violence.
For more information about the Ralph Civil Rights Act, please visit the California Department of Fair Employment and Housing website.
The Equal Pay Act
The California Equal Pay Act (“EPA”) was amended January 1, 2017, to add race and ethnicity as protected categories. Prior to this, only equal pay claims based on sex were permitted. As amended, the EPA prohibits employers from paying an employee differently than an employee of another race, ethnicity, and/or gender for “substantially similar work.” Some employers may argue that the pay difference was not deliberate or intended to be discriminatory. But discriminatory intent is not required and a lack of intent does not negate the adverse impact. Unconscious biases and systematic oppression must be corrected and employers held accountable. That is why employers cannot rely on prior salary information as justification for discriminatory differences. Employees who are aware of or suspect that they are being unfairly compensated on the basis of their race, ethnicity, and/or sex should seek legal consultation.
For more information about the California Equal Pay Act, visit the California Department of Industrial Relations website.
California Labor Code Section 1101
Under California Labor Code section 1101, employers are prohibited from making, adopting, or enforcing any rule, regulation, or policy that forbids employees from engaging or participating in politics. Black Lives Matter is a political and social movement advocating for the protection of Black lives from police brutality and violence inflicted on Black communities. Though many employers issued statements of commitment in response to the police murder of George Floyd, others remained silent or prevented their employees from wearing or displaying statements of their own solidarity, such as buttons or virtual backgrounds, with the movement. If your employer forbids or prevents you from participating in the movement, or attempts to control or direct your political activities or affiliations, you may have a claim.
The California Civil Rights Law Group envisions a society free from racism and identity-based discrimination and harassment. Racism in the workplace not only jeopardizes the economic capacity to secure a livelihood, but insidiously impacts all areas of our lives: relationships, mental and physical health, joy, a sense of safety, and more. Racially discriminatory and harassing conduct, including unequal pay, violence, racial slurs and comments, are preventable. If your employer fails to protect you by preventing or correcting discrimination or harassment, the California Civil Rights Law Group is here to help get you the justice you deserve. We believe Black lives matter everywhere, including at work.
If you have experienced racial discrimination or harassment at work, contact us today for a free consultation with a member of our team.