Discrimination at Work
By Harmeet Dhillon
“The Model Minority … overachievers … affluent and successful ethnic group …” Somehow the stereotypes of success, high academic achievement, strong work ethic, and economic success conflict with the reality that Indian Americans have always been prime targets for employment discrimination in the U.S. workplace. While Asian immigrants do not bear the heavy legacy of several generations of slavery and segregation as do their African American counterparts, they suffer from forms of discrimination that other minorities do not bear – such as generic xenophobia, prejudice against those who are “taking American jobs,” and mistaken identification of South Asians with the perpetrators of terrorism against the U.S. after September 11, 2001.
Moreover, while Indian Americans suffer discrimination in the workplace every day, as a community they are uniquely reluctant to challenge discrimination, file complaints with the federal Equal Employment Opportunity Commission, file lawsuits, or even speak out in public about disparate treatment. Despite generations of Indian American participation in every aspect of civic life in the U.S., there still remains a feeling of shame about being a participant in a lawsuit – as if by bringing one’s grievances before the courts, one is admitting to some wrongdoing. It is culturally unacceptable to go to the courts to correct a problem, particularly if it involves the employer/employee relationship.
This attitude of reluctance to pursue the civil rights granted by federal, state, and local law in a way makes Indian Americans (together with other Asian Americans who share a cultural aversion to the courthouse) especially attractive targets for employers inclined to discriminate – because they predict that they can get away with it. For Indian Americans to enjoy equal rights in the U.S., they must acknowledge the fact that employment decisions are often completely independent of a person’s individual qualifications or ability to perform a job. They must also acknowledge that they are, in fact, frequent targets of discrimination, something that is often difficult for the proud psyche of first and second generation immigrants who have overcome many hurdles to earn their place in society, to accept.
A recent report by the Discrimination Research Center focusing on the temporary or “temp” employment market found that in California – the most ethnically diverse state in the nation – “South Asian job applicants received significantly fewer responses from temporary employment agencies throughout California than comparably qualified individuals of any other race or ethnicity.” In this study of approximately 6,200 resumes from individuals with identifiable ethnic names, South Asian men and women received fewer responses from temp agencies than whites, African Americans and Latinos. Temporary employment has exploded in the wake of corporate belt-tightening and a desire to “outsource” many functions that previously were filled by fully salaried positions. Today over 10 million Americans find employment through temp agencies, often in positions that will lead to permanent employment. So this study documenting serious discrimination in the temp market against Asian Americans is a telling indicator of broader and more troubling issues facing Indian Americans in the workplace.
What can an employee or prospective employee who feels he or she has been discriminated against in the workplace do to address his or her grievances? Workers are protected by a web of overlapping local, state and federal regulations, most important of which is the landmark Title VII of the Civil Rights Act of 1964, which prohibits employers with fifteen or more employees from taking any of the following actions against an employee on the basis of race, national origin, gender or religion:
It is also illegal to ask certain questions about a potential employee’s marital status, sexual preference, credit history, childbearing plans, parental status, and childcare arrangements. Indian American women may suffer from the stereotype that their husbands and children will come before their jobs, and be asked such questions during interviews. Not only should prospective employees refuse to answer such questions during interviews, but they should also avoid volunteering this information. Remember – these issues are nobody’s business, strange as that may seem to those of us raised in communities where everything seems to be everybody’s business!
One common misconception about employment discrimination laws is that sexual harassment is only punishable if an employer tries to force an employee to have sex in exchange for keeping her job or a promotion – so-called “quid pro quo” harassment. But it is also illegal for an employer to create, or tolerate, a workplace environment that persistently makes employees feel uncomfortable, harassed or pressured on the basis of gender; for example, a workplace filled with posters of scantily clad women, suggestive sexual comments, foul language or gestures, or inappropriate questions about an employee’s sexual proclivities or practices. It is important to note, however, that the test for this type of discrimination is not whether a hyper-sensitive and very conservative woman would feel harassed or offended by the workplace environment, but rather whether the average, reasonable woman would be offended. Sometimes merely expressing the fact that one is feeling harassed or threatened by certain comments or conduct may correct the problem; what is merely friendly chit-chat by American standards may wrongly be perceived as undue sexual harassment by a first generation immigrant, and communication is a key first step – as in most relationships – toward correcting a misunderstanding.
Federal and state laws also protect employees against age discrimination (against those over the age of 40), and some jurisdictions also protect against discrimination on the basis of sexual orientation. The Family Medical Leave Act prohibits employers with over 50 employees from discriminating against covered workers for taking time off to care for a new child or family medical requirement. One of the newer and lesser known forms of employment discrimination laws protects “whistle-blowers” who report health, safety or corporate ethics/financial violations.
What should you do if you feel that you may have been discriminated against in violation of one or more of the laws discussed above? First and foremost, keep a record of what has occurred – such as copies of threatening notes, emails or voice messages. Also consider keeping a diary or log of incidents of harassment. Check your company’s employee handbook, if there is one, to see what the company’s policy is on reporting incidents of potential harassment. Take steps to make sure that your employer is made aware of your concerns; employers will often take such claims seriously, investigate them, and correct the problem. If your supervisor is the one causing the problem, go over his or her head to report the problem, or report it to a human resources officer. Ask the company to keep a record of the fact that you made a complaint, and keep a record yourself -- it is illegal under many of the laws mentioned above to retaliate against an employee for making a claim of harassment.
If you still feel that you are being discriminated against, seek legal help. Many state and county bar associations have referral services for the public seeking assistance with employment discrimination claims. If you feel that you have been discriminated against on the basis of religion, contact a religious civil rights group such as the Sikh American Legal and Educational Defense Fund, or the Becket Fund. Many temples and community centers have legal clinics where members can seek free legal advice from volunteer lawyers at scheduled times. There are numerous civil rights organizations such as the Asian American Legal and Educational Defense Fund, the American Civil Liberties Union, and the Lawyers Committee for Civil Rights, which may be able to provide assistance, information, or a referral to a lawyer who may help you. In addition, there are specialty bar associations such as the National South Asian Bar Association, whose members may be able to help. Information on all of these groups is widely available on the Internet.
Taking legal action under most of the federal and state statutes against discrimination can be a multi-step, and often time-consuming, process. One must first file a claim with the applicable state or federal agency, setting forth the facts concerning discrimination, which should be done promptly. If the agency chooses not to take any action, it will inform you of this fact, permitting you to file your own lawsuit in court. Again, lawsuits must be filed within a specified time after the discrimination takes place, or the employee will lose the claim. You should consult a lawyer in your state about the time limit that applies to your claim. Sometimes employment disputes may be more quickly resolved through mediation or arbitration, depending upon your employment contract or collective bargaining arrangement through a labor union or industry practice. Again, an attorney is your best resource for assessing what steps to take to best pursue your claims.
Choosing to take legal action to correct employment discrimination may seem like a big step. But remember that generations of Americans of all colors and creeds have fought hard for the rights of employees, and those rights are for the enjoyment of all, including Indian Americans. As taxpayers and law-abiding citizens or residents, we are all entitled to equal treatment under the law, and the United States legal system provides justice for those whose claims are valid and who act on them in a timely and persistent way. Employees who win their discrimination claims may be entitled to damages for lost pay and physical or emotional distress, reinstatement, or even a publicly announced change in policy by their employer. But they will also win something else – the dignity of stepping forward to report a wrong, insisting upon being treated with equality and respect, and often vindicating not only one’s rights but also the rights of others similarly situated. Don’t let cultural reticence and outdated stereotypes about participating in the litigation process prevent you from enjoying all of your rights under the law.
Harmeet K. Dhillon is an attorney admitted to practice in New York and California. Her practice includes employment discrimination, civil rights, entertainment and business law in state and federal courts throughout the country and abroad.
Disclaimer: The views and opinions expressed in these columns are solely those of the writers and do not necessarily represent those of the editor/publisher.
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