Employee Guide

Racial discrimination in the workplace comes in many forms and sometimes may be hard to recognize even to those being on the receiving end of racial discrimination. These discriminatory behavior can come from the employer, coworkers and third parties outside your company, such as clients and vendors.

Here are some common examples:

1. 1. Harassing you in the form of racial slurs, labels or jokes, grouping you with other Asians, or consistently confusing you with other Asian employees, creating a hostile work environment
   2. Criticizing you for your interpersonal skills and style unrelated to your work performance (e.g., being described as “abrasive”, “aggressive”, “difficult to work with”, “not a team player”, “not likable” especially if you speak up or defend your rights on one hand, and descriptions of your leadership style as being too “timid”, “lacking leadership or charisma” playing into the stereotypical tropes of Asians as quiet, timid, docile, too deferential or too submissive, and using these characteristics in an adverse employment action against you
   3. Excluding you from meetings and communications that you should be invited to given your job function or excluding you from professional networks and networking events/opportunities and training
   4. Taking your hard work and skills for granted by resorting to stereotypes that all Asians are hard workers, smart, good at math, and thereby giving your more responsibilities and tasks without an increase in pay or job classification
   5. Giving you consistently the least desirable assignments, clients, tasks, etc. compared to similarly situated employees who are of a different race
   6. Paying you less compared to other employees (whether new hires or existing employees) of a different race with similar or lesser credentials, work experience and seniority
   7. Passing you over for a promotion that you believe you deserve for, demoting you below another employee of a different race with lesser qualification or transferring you to a less desirable position
   8. Terminating you while other employees of a different race with lesser seniority, skills or performance keep their job
   9. Hiring less qualified candidates of a different race over Asian candidates or engaging in other discriminatory hiring practices
   10. Unfairly disciplining you, making you follow certain dress codes or strictly enforcing workplace policies while permitting employees of other race to violate such codes or holding them to lesser standards
   11. Failing to investigate complaints, failing to protect employee from discrimination/harassment, and retaliating against employee after raising concerns
   12. Restricting your use of company resources

Gender discrimination in the workplace comes in many forms and sometimes may be hard to recognize. These discriminatory behavior can come from the employer, coworkers and third parties outside your company, such as clients and vendors.

Here are some common examples:

1. 1. Employment actions such as hiring, firing, pay, job assignment, promotions, layoff, training, benefits affected you negatively based on your gender, including your sex, sexual orientation, gender identity, gender presentation or pregnancy, regardless of whether any of these actions were sexual in nature (e.g., only one gender gets promoted on a regular basis; one gender is paid higher compensation for same or similar job responsibilities; one gender is left out of important meetings or business trips)
   2. Demand for sexual favors in exchange for employment benefit, or implied or actual threats of being overlooked for work opportunities or promotion if you say no to your boss’ advances (e.g., I will give you a promotion or a raise if you go out to dinner with me; getting to know me better outside of the office will help your career)
   3. Unwelcome sexual advances, either about sex or directed at you because of your sex, including sending suggestive texts, emails or notes
   4. Inappropriate touching, patting, pinching, rubbing, massaging or “accidentally on purpose” brushing up against another person, repeated hugs or repeated hand on the back
   5. Physically blocking someone’s movement, such as standing in their way
   6. Inappropriate gestures (e.g., licking lips, looking someone up and down, grinding hips, whistling, etc.) even if they are not directed at you
   7. Inappropriate sexual remarks, lewd jokes, sharing stories of sexual experiences, crude remarks, sexual comments about appearance, clothing or body parts, including repeated compliments of your appearance and commenting on attractiveness of others in front of you
   8. Regular hassling for a date or being followed by a co-worker in and outside the office
   9. Leaving unwanted gifts of a sexual or romantic nature
   10. Spreading sexual rumors about an employee
   11. Display of sexually offensive images, videos or words, including screensavers of a sexual nature or posters, or sharing inappropriate images or videos, such as pornography or salacious gifs with co-workers
   12. Intrusive questions about your sex life, sexual history or sexual orientation
   13. Retaliation for rebuffing sexual advances or reporting someone for sexual harassment
   14. Employer failing to properly investigate your complaints of discrimination or harassment
   15. Using stereotypes or making offensive comments about someone or because of their sex, sexual orientation, or gender identity

• Title VII of the Civil Rights Act of 1964 (“Title VII”) is a federal employment law which prohibits anyone in your company from harassing you, discriminating against you, or retaliating against you because of your race, color, national origin, sex, or religion. Note that most jobs in the U.S. are at-will means that an employer can typically fire an employee for any reason they want — except an illegal reason such as unlawful discrimination as provided for under Title VII. Under Title VII, you do not have to prove intentional discrimination, so long as you can show that a seemingly neutral practice unduly impacts employees in a protected class, even if such impact is unintentional.
• Section 1981 is a shorthand reference to 42 U.S.C. § 1981, which derives from Section 1 of the 1866 Civil Rights Act. While similar in protecting against unjust discrimination, Section 1981 differs from Title VII in that Section 1981 applies only to intentional racial discrimination, while Title VII applies to intentional discrimination and disparate impact discrimination on race, color, national origin, sex, or religion. Title VII also requires an EEOC charge to be filed before bringing their claims in court and has a cap on damages. Plaintiffs alleging racial discrimination will often allege Section 1981 and Title VII claims together (provided the plaintiff filed an EEOC charge and has received a right to sue letter from the EEOC). Section 1981 protection against discrimination in actions taken by the federal government, but also by the state governments and private individuals. See here to learn more about certain advantages of Section 1981 over Title VII.
• Nearly every state has anti-discrimination and anti-harassment laws which are similar to Title VII. These state laws may provide you with greater protections than Title VII, and often apply to companies with less than 15 employees.
• Many large cities also have their own anti-discrimination and anti-harassment laws which are similar to Title VII. These local laws may also provide you with greater protections than Title VII, and often apply to companies with less than 15 employees

• When you report discrimination, harassment and/or retaliation, your employer is under legal obligation to investigate your complaints in a timely manner and to take appropriate action.
• HR will likely interview you, the person(s) you are reporting against and potential witnesses to gather facts and evidence. HR may even hire a third party investigator. The investigation may last for weeks or even months. At the conclusion of the investigation, HR may report its findings and make recommendations to management which may result in disciplinary action or warning against the perpetrator under favorable circumstances to you.
• However, as many employees fear that reporting discrimination, harassment and/or retaliation may lead to further retaliation, HR and management’s response may not be satisfactory or agreeable to you. For example, HR may take little or no action, make excuses to justify the perpetrator’s behavior, blame you for the problem and possibly even place you on leave or terminate you. If you face any such situations after reporting your complaints of discrimination, harassment or retaliation to HR or your supervisor, it may be time for you to reach out to an attorney and SwAA can assist you through the process. Such adverse actions by HR after you file your initial complaint of discrimination may lead to additional retaliation claims that you may make against your employer.

• The legal system enforces strict time limits, known as statutes of limitations, for you to make claims under the court system.
• The time limit depend on laws in your city & state, and where you decide to file your complaint.
• Please consult an attorney to understand the time limits for your situation as soon as possible to preserve your right to legal action.