Racial discrimination

For employers

What is race?

This is a simple question with no simple answer. It depends to a large degree on perspective and context. Ask ten people for a definition of race and you will likely get ten distinct answers. In general, however, most dictionaries define race as describing one of several very broad categories that are biologically arbitrary yet generally based on ancestral origin and shared physical characteristics (especially skin color). Ethnicity, by contrast, most often describes a person’s cultural identity, which may or may not include a shared language, customs, religious expression, or nationality. The US Census Bureau collects race information based on guidelines from the Office of Management and Budget, which requires at least five categories: White, Black or African American, American Indian or Native Alaskan, Asian, and Native Hawaiian or Pacific Islander. “Some Other Race” is also permitted. Interestingly, Hispanic and Middle Eastern are not included. Oregon statutes and administrative rules do not define the term "race", but guidance from the US Equal Employment Opportunity Commission (EEOC) states that race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features).

What is color?

As we can see from the somewhat loose definition above, race and color are interrelated. That is likely why charging documents coming from our Civil Rights Division and Administrative Prosecution Unit often allege race, color and national origin together in a single case. It is difficult to distinguish, for example, between discrimination against a person because they are African American, Black or Jamaican. Nevertheless, the EEOC defines discrimination based on color as treating someone unfavorably because of skin color complexion.

I have a sign in my shop that says “We reserve the right to refuse service to anyone.” Do I have a right to exclude someone who happens to be a person of color if they refuse to wear a face covering?

We all have a race and we all have a color, just as we all have a sexual orientation and a marital status. While civil rights legislation was enacted to protect those who have historically faced discrimination and harassment, those laws protect everyone. Our membership in a protected category does not give us greater rights than anyone else. That sign does not give a place of public accommodation the right to exclude customers because of their race or color — those are protected classes. Business owners may, however, exclude a customer who is rude and disruptive or who does not follow the dress code. Elsewhere, we discuss accommodations for those who cannot wear a face covering because of a disability, but signage does not give businesses a license to discriminate.

Tensions are running hot in our restaurant. Kitchen staff are not getting along, largely due to tension and clashes between employees wearing “Black Lives Matter” shirts and those donning “Make America Great Again” hats. We respect free expression but this situation is getting out of hand. What can we do to refocus and get people back on track?

It's not surprising that societal divisions have the potential to spill over to the workplace. There may not be a one size fits all response, however, most employers have the general ability to regulate speech in the workplace without violating employee’s rights. Private sector employers have broad power to restrict partisan political activity on the job and even public sector employers can put job-related limits on political advocacy.

That said, employees – regardless of the existence of a collective bargaining agreement – have the right to advocate for political issues that have a direct impact on their individual workplace. (For example, a 2017 NLRB ruled against In-N-Out Burger’s prohibition on buttons saying “Fight for $15” during a minimum wage campaign.)

While it might be tempting to jump ahead to implementing a sweeping politics-free zone or logo-free dress code, the issue here isn’t likely the logos. Further, Black Lives Matter sits at the intersection of society and several classes protected by law, namely race, color and national origin. Disciplining employees in connection with their membership in (or association with) protected classes could certainly result in liability.

Instead, a more constructive effort might begin with reiterating for all employees that mutual respect is critical to the success of your organization and that you expect every team member to contribute to a workplace free of inappropriate behavior. Beyond that, employees should understand that violations of your anti-discrimination policies (as required by the Workplace Fairness Act) will result in discipline, up to and including termination.