Demographic changes in the United States may lead to more varied claims of race discrimination in employment, especially with regard to employees who come from the growing population of mixed-race families.
The U.S. Census Bureau reports that the "multiracial population" of the nation surged 276 percent in the past decade, up from 9 million people to 33.8 million. In addition, the Hispanic or Latino population, which includes any race, rose 23% to 62.1 million in 2020. In contrast, respondents who self-identified as White (and not any other race) accounted for 204.3 million people and 61.6% of all people living in the United States in 2020, down from 223.6 million and 72.4% in 2010. Further data on the Census is available here. Some of these changes are likely due the Census Bureau's refinement of its questions and methods, and cultural changes relating to racial identity. Nevertheless, the data reflect a dramatic shift in how Americans identify themselves racially.
Why does this matter in the field of labor and employment law? A recent decision by the U.S. Court of Appeals for the Third Circuit (covering Pennsylvania, New Jersey, Delaware and the U.S. Virgin Islands) drives home the answer.
In Kengerski v. Harper, decided this summer, a captain with the Allegheny County Jail filed an internal complaint to the warden about a recently promoted co-worker who had made racist comments about the captain's relative. Specifically, the captain alleged that after he disclosed to the co-worker that his grandniece was biracial, the co-worker made racist comments (referring to the grandniece as a "little monkey") and sent harassing texts and photographs with comments and "offensive stereotypes." Stunningly, the defendant tried to explain away the monkey comment as a harmless "zoomorphism" (defense fail). Seven months after the employee complained, the county fired him. He filed suit under Title VII of the Civil Rights Act of 1964, claiming the county terminated him in retaliation for complaining about the racial harassment regarding his grandniece.
The primary question before the Court of Appeals was whether Title VII protected him against retaliation under these facts, since he was not being targeted based on his race (White). First, the Court held that "harassment against an employee because he associates with a person of another race, such as a family member, may violate Title VII by creating a hostile work environment" – agreeing with four other appellate courts who have so ruled. In other words, even if the employee is not being harassed because of his race, he is still protected from "associational discrimination" relating to his relationships with people of other races or mixed racial backgrounds. Second, the Court noted, "Title VII protects all employees from retaliation when they reasonably believe that behavior at their work violates the statute and they make a good-faith complaint."
Under the case's facts, therefore, the employee could meet the elements of a retaliation claim under Title VII and the Third Circuit reversed the district court's grant of summary judgment and remanded the case for a decision on the merits.
So what lessons can we take from this case and the multi-racial trend?
- Employees are protected from harassment and discrimination not just based on their own race, but also that of their family members and those with whom they associate;
- Employers can expect more employees to claim protected status from these relationships, tracking the dramatic increase in multi-racial Americans;
- Any offensive racial comment or harassment should be prohibited at work, regardless of whom it targets; and
- There is no "safe harbor" (and there never was) for White-on-White offensive racialconduct or comments, even if directed at another race.