How Discrimination Based on Color (“Colorism”) Differs from Racism and How It Can Be the Basis of a Successful New York Discrimination Lawsuit

For those who are not Latino or African American, it may be easy to assume that all Latinos or African Americans fall monolithically into one group. This is not true, and it is one reason why the law in New York protects people based on not only their race, ethnicity, and/or national heritage, but also their color. Discrimination based on color (or “colorism”) is very real and, if it has happened to you at work, then you should reach out as soon as possible to an experienced New York City employment discrimination lawyer.

Back in March of this year, Pew Research surveyed more than 3,300 Latinos across the USA about issues of skin color and discrimination. Last month, the study results revealed that nearly 2/3 (62%) of those surveyed said that having darker skin color was a disadvantage, with more than half (57%) saying that darker skin color affected their daily lives.

According to one Latino man’s lawsuit from a few years ago, that precise problem of workplace colorism was egregiously on display right here in New York City when he worked at one of the Upper West Side’s most famous Italian restaurants.

R.P. was a Dominican man with dark skin. According to the lawsuit he filed in Manhattan, he endured forms of harassment that likely ring familiar to many African Americans. The man’s coworkers allegedly placed ape stickers on his work locker, and frequently did a “monkey dance” around him that consisted of “placing their hands at their sides while jumping around,” the New York Post reported.

In addition to the alleged harassment’s egregiousness, it also occurred pervasively, according to the lawsuit. R.P. allegedly endured being called a derogatory Spanish word for “monkey” every day since he started at the restaurant. According to R.P.’s court documents, at least one of the harassing coworkers was also a Latino man.

It is important to recognize that color discrimination, while it may often overlap with issues of race, ethnicity, and/or nationality discrimination is distinct from those, and color discrimination may occur even if all of the players are of the same race/ethnicity. Say, for example, a hotel manager frequently fills job openings with light-skinned applicants but routinely rejects dark-skinned applicants. That may represent a violation of federal, state, and city prohibitions against discrimination, even if the manager, the new hires, and the rejected applicants were all Latinos (or African Americans or Asian Americans.)

Burden of Proof Depends on Whether Yours is a Federal, State, or City Case

In your color discrimination case, you’ll need several things for success. What proof you’ll need depends on whether you advance claims under federal, state, or city law (or all of the above.)

For example, federal law says that, for you to have a winning case, the discrimination you endured must have been “severe” or “pervasive.” Slurs invoking race and/or color can be “severe” even if rare. A lawsuit from the federal Fourth Circuit generated a ruling that two uses of the slur “porch monkey” were enough to meet the “severe” standard in an African American woman’s Title VII case. In the Third Circuit, whose rulings directly control lawsuits in neighboring New Jersey, the appeals court ruled that just a single use of a phrase involving the “N word” was enough to count as “severe.” In the Second Circuit, whose rulings directly control federal cases here in New York, the appeals court ruled in 2017 a supervisor’s single instance of calling the plaintiff an [expletive]ing N-word was enough to give the worker a viable case based on severe discrimination.

Here in New York, the law does not include a “severe or pervasive” requirement. (New York State eliminated it in 2019, and New York City had already eliminated it years earlier.) In New York, you have the burden of establishing that you suffered harassment or discrimination at work. Once you do that, then the burden shifts to your employer (or whomever you sued) to prove to the court that the alleged misconduct amounted to nothing more than “petty slights” or “trivial inconveniences.”

Whether the discrimination you endured at your job was the result of your race, your ethnicity, your national origin, your skin color, or some other protected characteristic, you’ll need the right legal team to get everything you deserve from your discrimination lawsuit. Get in touch with the diligent New York workplace discrimination attorneys at Phillips & Associates. We’ve helped countless people harmed by race and color discrimination at work, and we’re here to be the powerful and effective advocate you need. Contact us online or at (866) 229-9441 today to set up a free and confidential consultation and find out what we can do for you.

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