Racial Discrimination Lawyer in Portland, Oregon

Race Discrimination in Oregon

Race Discrimination is Still a Serious Problem in Our Society

You might think that after more than 150 years since President Lincoln delivered his Emancipation Proclamation and over 50 years since Congress passed the Civil Rights Act of 1964, that our country’s days of racial oppression and injustice would be long behind us. Unfortunately, statistics and current events in the media demonstrate that we still have a long way to go.

There are numerous statistical studies over the past twenty years that not only demonstrate racism in the workplace still exists, but it may be getting worse. One recent study by the Pew Research Center in 2019 found that 76% of African Americans and Asian Americans report having experienced discrimination. The same study found that 58% of Hispanics say they experienced discrimination or unfair treatment. Meanwhile, about 67% of whites report having never dealt with any form of discrimination in their lifetimes. This lack of first-hand experience with discrimination may account for why only 37% of whites believe our country hasn’t done enough to ensure equal rights to people of other races.

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Worker being fired due to racism in the workplace

Oregon Race Discrimination Laws

There are several state and federal laws that protect Oregon employees from racial discrimination at work. While these laws all prohibit race discrimination in some form or another, there are important differences in these laws that may affect your rights and remedies if you have been subjected to race discrimination. For example, Title VII of the Civil Rights Act of 1964 is a federal statute that prohibits employers from making employment decisions on account of race, but it only applies to employers with 15 or more employees, so if you work for a small employer then you are not protected by that statute. It also requires you to file a complaint with the Equal Employment Opportunity Commission before you are allowed to file a case against your employer in court. The law also sets a maximum amount that a victim of discrimination can recover from his or her employer for certain types of damages, and those “damage caps” were set in the early 1990s and have never been adjusted for inflation or higher costs of living.

Another federal law, 42 U.S.C. § 1981, similarly prohibits race discrimination. This statute has some advantages over Title VII, such as no damage caps, no requirement to pre-file your case with the EEOC, and a longer statute of limitations. But it also has some disadvantages as well. For example, you can not bring a claim for “disparate impact” discrimination – a type of discrimination where an employer’s policy adversely affects members of a certain race – and it only covers discrimination on the basis of race, whereas Title VII protects other classes of minority employees.

For a long time, Title VII and § 1981 were the primary statutory rights that allowed employees to fight racial discrimination and harassment in the workplace. Many states eventually passed similar laws “prohibiting” discrimination, but most state laws did not leave employees with any effective remedies when the laws were broken. The lack of meaningful remedies left these laws largely aspirational.

Over the past two decades, we have seen significant transformations in both state and federal workplace discrimination laws. In the federal context, there has been a steady erosion of employee rights under the federal statutes, which many legal scholars and commentators attribute to the political appointment of certain judges who are not inclined to allow these cases to proceed to trial. Many cases brought under these federal laws are summarily dismissed by federal judges based on a number of judicially-created legal doctrines and theories, and the judge’s own view of the facts. This can be frustrating for employees because the federal statutes were designed to allow victims of discrimination to tell their story to a jury and let their peers decide if the employer violated the law. But now, an astounding 87% of employment discrimination cases are dismissed in whole or in part by federal judges who are inclined to decide discrimination cases for themselves.

Fortunately for workers, the regression of federal laws has been offset in large extent by progressive legislation enacted in some states. Oregon is one of the states where such legislation has been passed.

Section 659A.030 of Oregon’s statutes prohibits discriminatory employment practices and provides broad protections and real remedies for victims of race discrimination. There are several key features to this statute that are particularly helpful for fighting workplace discrimiantion. For example, it applies to every employer in Oregon, has no maximum caps on the employee’s remedies, does not have a pre-filing requirement, and has a much longer statute of limitations than Title VII.

Below is a summary of some of the key distinctions between state and federal laws prohibiting race discrimination. However, employment discrimination laws are constantly evolving, and nothing in here should be taken as legal advice for your specific situation. If you think you have been treated unfairly based on your race, you should consult with an Oregon race discrimination attorney to review the facts of your particular case and determine which statute best applies to your situation.

Title VII42 U.S.C. § 1981ORS 659A.030
# of Employees15 or more1 or more1 or more
Pre-filing required?YesNoNo
Damage CapsYesNoNo
Limitations period

180 or 300 days to file complaint with EEOC (depending on the state)

90 days to file lawsuit (after receiving permission from the EEOC)

4 years5 years
Types of race discrimination prohibited

Disparate treatment

Disparate impact

Harassment

Retaliation

Disparate treatment

Retaliation

Disparate treatment

Disparate impact

Harassment

Retaliation

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What Is Racial Discrimination?

Race discrimination is when someone is treated differently based on their race. Race discrimination often manifests itself when managers make employment decisions, such as hirings, promotions, disciplinary actions, or terminations. If an employee’s race was a substantial factor in any of these decisions, then the employee experienced racial discrimination.

Another common form of racial discrimination occurs when an employee is subjected to unwelcome harassment based on race. This type of harassment becomes illegal racial discrimination when it results in a hostile work environment. To result in a hostile work environment, the unwelcome racial conduct must be so frequent or egregious that it results in an adverse employment action or creates an intimidating or abusive working environment. 

Importantly, the unwelcome conduct need not be overtly racial, such as using racial slurs, although that can certainly create a hostile work environment. The hostile conduct may also be “racial” in the sense that it is only being directed at one or more employees of a certain race. For example, in one recent racial harassment case our firm has handled, our two black construction worker clients were routinely assigned to the worst jobs, were excluded from team meetings, were called derogatory (but non-racial) names, and were not given the same tools and equipment given to their white coworkers. Although our clients were not fired and did not lose any pay, this was still considered race discrimination because our clients were subjected to different treatment that created a hostile work environment based on their race. 

It is also illegal to discriminate against an employee due to the employee’s “color.” Some people think of race and color as the same thing, but they are slightly different. Race discrimination involves discrimination based on the physical characteristics (such as skin color, hair texture, facial features, and other biological attributes) associated with people of certain recognized races. The different types of races that have been included in the U.S. Census surveys include:

  1. White
  2. Black or African American
  3. American Indian or Alaska Native
  4. Asian
  5. Native Hawaiian and Pacific Islander
  6. Hispanic

Discrimination based on “ethnicity” is also a close cousin to race discrimination. The word “ethnicity” most often refers to a group of people that share common identity-based beliefs, customs, languages, and cultures. Examples of ethnic groups could include Irish, Latino, Cajun, Sioux, etc. 

Race, color, and ethnicity are overlapping but distinct concepts. An employee being harassed based on appearance might be subjected to all three forms of discrimination. For example, an employee who is insulted about being an “Irish ginger” could be said to have experienced discrimination based on race (because “ginger” physical characteristics are predominantly found in whites), color (because pale skin is commonly associated with people of Irish descent), and ethnicity (because the Irish are an ethnic group who share common ancestry, identity, and culture). 

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What Are Some Examples of Race Discrimination?

These are some common ways that employees might be harassed based on race:

  • Failing to hire – An employer refuses to hire applicants of a certain race. Sometimes this is because of the business owner’s own racial biases, but it could also be due to the racial preferences of the business’s customers. In either case, it is illegal.
  • Failure to promote – An African-American employee with excellent performance reviews, significant tenure, and an excellent academic record is repeatedly passed over for promotions in favor of white employees with less seniority and worse job performance. This might well be race discrimination.
  • Termination – If a manager or supervisor fires an employee based on race, that is illegal discrimination. Most of the time, employers do not announce an intent to discriminate, but their actions may reveal that race discrimination is at play. For example, an employer who fires an Asian employee missing two days of work, but allows white employees to miss as much or more work without getting fired has treated the Asian employee differently and engaged in race discrimination.
  • Unfair discipline – Similar to the discriminatory firing example above, it is also illegal to discipline employees differently based on race. Infractions by employees of one race must be handled similarly as infractions by others. Of course, not all workplace violations or infractions are exactly the same, but if they involve the same company policy or are of similar seriousness, the employer should handle the situations in a fair and consistent manner. But sometimes that does not happen due to biases and prejudices that may influence a manager or supervisor’s decision-making.
  • Harassment – Derogatory remarks, hostile attitudes, racial slurs, and insulting jokes based on someone’s race or color may be illegal if they create a hostile work environment.
  • Associational discrimination – This is a form of race discrimination that occurs when an employer treats someone differently not because that person is a certain race or has a certain skin color, but because of that person’s relationship with members of another race or ethnic group. An example might be a white woman with an African-American husband who gets mistreated by a manager who has expressed that he is against inter-racial marriages.

 

How Do You Prove Race Discrimination?

In Oregon, to win a discrimination case you must prove that your race was a substantial factor in the unfair treatment that you received. But discrimination is inherently tied to someone’s privately-held biases and beliefs, so it can be difficult to prove. Sometimes we have a “feeling” that discrimination is at play, but in the eyes of the law, gut feelings and instincts are no substitute for evidence. So what kind of evidence does a race discrimination lawyer look for? Generally, evidence of discrimination falls within two types: (1) direct evidence, and (2) circumstantial evidence.

Direct Evidence

Direct evidence of discrimination is evidence that reveals a discriminatory motive or bias behind the decision or conduct at issue. It is called “direct” evidence because it directly establishes a discrimination without having to draw any inferences about what happened. This type of evidence typically takes the form of a verbal or written admission that the action taken towards an employee is due to his or her race. Think of a “smoking gun” email where a manager admits that he wants to get rid of black employees because “it’s getting too dark in here.” Or telling a minority employee that they are being let go because the company’s clients prefer to work with whites. In either scenario, the evidence directly establishes that the employee’s race was at least part of the reason for the employee’s dismissal from the job. 

Direct evidence can be established by:

  • Overt or subtle racial comments made while informing an employee of an employment decision
  • Witness testimony from someone who may have heard a decision-maker express a discriminatory reason for taking action against an employee
  • Written memos or emails showing a discriminatory animus for an employment decision
  • Audio recordings capturing racial biases of those involved in the discriminatory or harassing conduct at issue 

CAUTION: Many states have laws against recording others without their consent. Oregon allows for recordings without consent in some circumstances, but it is a criminal offense to record someone without notice or permission in other circumstances. You should consult with an attorney before you attempt to record someone at work to avoid any criminal or civil penalties.

As you might imagine, most people who are inclined to discriminate these days don’t openly announce their racial biases and prejudices. Most employers and managers are sophisticated enough and even trained to avoid leaving a trail of direct evidence that might link an employment action to a discriminatory motive. For this reason, most employment cases are proven through circumstantial evidence.

Circumstantial Evidence

Circumstantial evidence is simply evidence of the circumstances surrounding an employment decision which raises a presumption that race discrimination played a role in the decision. Circumstantial evidence can be just about anything that is not a direct statement or admission of discrimination. 

Because every case is different, there are no hard and fast rules for how to prove a case through circumstantial evidence. All that is required is that you provide sufficient evidence from the circumstances around you to show that your employer acted in a discriminatory manner. 

Here are some questions typically ask when we are evaluating whether there is enough evidence to prove a race discrimination case circumstantially:

  • Were you qualified for the position you held?
  • Were you meeting the legitimate expectations of the position?
  • Did you receive any positive performance reviews, pay raises, or other recognition for your job performance?
  • Do you have any disciplinary actions in your employment history?
  • How long was your tenure of employment?
  • Did your employer replace you with someone who is not your same race?
  • Were you treated differently than your coworkers who are not your same race?
  • Did any other employees of your same race experience similar mistreatment?
  • Did your employer follow its policy in its dealings with you?
  • Did your employer apply its policy differently towards you than other employees who are not of your same race?
  • Have any other employees complained of race discrimination?
  • Did any co-workers or managers make any derogatory remarks or insulting jokes about people of your race?
  • Did any co-workers or managers make any statements about negative stereotypes associated with your race?
  • Has anyone made any racially threatening comments?
  • Has anyone ever displayed any racially offensive symbols or pictures?
  • If you broke a rule, does the punishment fit the crime, or did your employer overreact to a relatively minor infraction?
  • Does your employer have an anti-discrimination policy and provide training on the policy?
  • What are the workforce statistics? Are people of your same race underrepresented in your employer’s workforce?
  • Did your employer give you conflicting or inconsistent reasons for the adverse actions taken against you?
  • Did your employer give you false reasons for taking adverse actions against you?

Some people believe that cases with “direct” evidence are stronger than “circumstantial” cases, but that is not necessarily true. The law does not value one kind of evidence over the other, and circumstantial cases can be far more compelling than cases involving direct evidence. We have found that the old adage “Actions speak louder than words” holds true in race discrimination cases. 

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Compensation for Victims of Race Discrimination

Racial biases can cause real and substantial harm when they influence decisions and behavior in the workplace. One economic study estimated that workplace discrimination costs workers and businesses $64 billion dollars a year. Workers affected by discrimination bear costs in the form of fewer promotions and job opportunities, less pay than other workers, and lost wages in the event of a firing. Likewise, businesses absorb costs of discrimination through higher employee turnover, additional recruitment and training costs, loss in employee morale, and the costs of litigation.

If you prove that you were a victim of race discrimination, the law allows you to recover compensation for the harm that your employer caused. The law refers to this kind of financial remedy as “damages.” These are the primary categories of damages available in race discrimination cases:

  • Back pay – This compensates you for the lost wages or other payments that you would have received had the discrimination not occurred. It is calculated as the difference between what you were making before your firing or demotion, and what you actually received through later employment. In failure to hire cases, your back pay damages would be based on what you would have earned had you received the job, less anything you earned at other jobs.
  • Front pay – This is similar to back pay, but instead of looking at how much pay you lost in the past, it looks at how much you are likely to continue losing into the future. Discrimination can completely alter someone’s career trajectory and have a long-lasting impact on an employee’s earnings over the course of a career. To avoid long-term financial devastation, sometimes the court will order the defendant to reinstate you to your position instead of awarding front pay (if you are willing to be reinstated). 
  • Compensatory damages – These are often referred to as “emotional distress” damages are designed to compensate you for all the ways the discrimination harmed your emotional well-being and impacted your life. You are not required to obtain medical treatment to seek these damages. This is typically proven through testimony by you or those close to you who can describe the humiliation, mental anguish, loss of dignity, financial distress, and other struggles you endured as a result of your encounter with race discrimination.
  • Punitive damages – These are damages that the law allows you to seek in order to punish your employer for egregious or reckless conduct. The purpose of these damages is to send a message that the employer’s conduct is reprehensible and will not be tolerated in our community. 
  • Attorney’s Fees – If you win our race discrimination case at trial, the court will usually award you attorney’s fees. This is unusual in our legal system, where parties ordinarily pay their own attorney’s fees, win or lose. But in civil rights cases like those involving race discrimination, our state and federal legislatures have passed specific laws allowing you to recover attorney’s fees because they wanted you and your attorney to have an extra incentive to pursue these kinds of cases so that the purpose of the law – eradicating discrimination – would be accomplished.
  • Costs/Expenses – If you win your case, you can also seek reimbursement for any costs of bringing suit. Court costs and litigation expenses are typically advanced by your attorney and deducted from any recovery your attorney is able to get for you. If you prevail at trial, the court can make the defendant pay your costs so you keep more of your recovery.

Not all of these damages are available in every case, and the amounts can vary widely depending on the specific facts and circumstances of your case. Additionally, many of these damages are not susceptible to precise calculation. If you want to know the fair value of your case, you should consult with an attorney who has significant experience obtaining settlements and jury awards in race discrimination cases. 

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Contact a Portland Discrimination Attorney To Discuss Your Case

If you have suffered from race discrimination at work, consulting with an attorney would be a prudent decision. Discrimination needs to be reported and prosecuted, otherwise it will continue to occur. By standing up for your own rights, you also stand up for others.

Kevin A. Jones regularly consults with employees facing race discrimination in Portland, OR and the surrounding areas. If you would like to talk to him about your situation, please call or email us to set up a time to talk. There is no charge to have a discussion about your case. In your consultation with Kevin, he will offer a sympathetic ear, listen carefully to your story, explain the law and your legal rights, and give you an honest, forthright assessment of your claims. 

If Kevin thinks you have a case, he will discuss your options for next steps, weigh the pros and cons of each, and let you make an informed decision that is best for you. If he can’t take your case, he hopes to at least give some peace of mind and perhaps point you in a better direction. 

Call, email, or text us to get the process started. The longer you wait, the more difficult it will be to help you. 

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