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What Evidence Do I Need To Show Race Discrimination At Work?

by | Jan 10, 2023 | Employment Discrimination, Employment Law, Federal Law Update, Race Discrimination, Wrongful Termination |

How do I prove a race discrimination case against my employer?

A claim for race discrimination under Title VII of the Civil Rights Act of 1964 can be established in two different ways, either through direct or indirect evidence. Race discrimination can be proved by either direct or circumstantial evidence, and an employee “need only prove one or the other, not both.” Hedrick v. W. Rsrv. Care Sys., 355 F.3d 444, 453 (6th Cir. 2004) (quoting Kline v. Tenn. Valley Auth., 128 F.3d 337, 348–49 (6th Cir. 1997)).

This brings us to the United States Court of Appeals for the Sixth Circuit’s recent decision in Laborers’ Int’l Union of N. Am., Loc. 894 v. Kenny/Obayashi V, No. 22-3141, 2022 WL 17489126 (6th Cir. Dec. 7, 2022), which dealt with an appeal of a district court’s holding that required the employee to prove his case using indirect thought the McDonnell Douglas burden shifting test. The employee, Alpha Souare, a Black man who immigrated to the United States from Guinean, argued that the District Court should have considered the following as direct evidence:

  • Night shift foreman Terry Quinn’s alleged statement: “I don’t give a fuck about blacks. It’s my way or the highway.”
  • A foreman only known as Curtis’s alleged statement: “shit, ain’t no African going to be on this ship.”
  • A completely unnamed, bald supervisor’s alleged statement: “this is not an African job.”

The United States Court of Appeals for the Sixth Circuit held that the trial court erred by refusing to consider the direct evidence approach, but that does not mean that the employee prevailed. Read on to understand what evidence is needed for a race discrimination case and why you need to be careful to select the best employee’s rights lawyers possible.

How is the McDonnell Douglas burden shifting test used to prove race discrimination?

Because most employers do not overtly engage in racially discriminatory conduct, courts typically use the burden shifting analysis first developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Known as the McDonnell Douglas test, an employee must initially present evidence on four different prima facie elements. The first three relate to the employee, who must show that he/she/they was (1) in a protected class based on race; (2) subject to an adverse employment action; (3) qualified to perform the job. The fourth element will depend on the type of discrimination claim being asserted. In a wrongful termination case, the fourth element requires proof that the employee was replaced with someone outside the protected class or that the employee’s termination allowed the retention of an employee outside the protected class. Likewise, in a failure to promote case, the employee must present evidence that the promotion went to another worker of a different race. In a disparate treatment discrimination claim, the fourth element requires evidence that similarly situated employees were treated differently.

If the employee presents each evidence of each of these elements, the burden shifts to the employer to provide a legitimate reason for taking the action in question – obviously, one that is not based on race. At that point, the employee can so that the given reason was false, not really believed by the employer, or not a sufficient reason to actually motivate the action taken. This is called pretext.

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What is direct evidence of discrimination?

“Alternatively, [employees] can establish a prima facie case by presenting direct evidence of discriminatory intent.” Nguyen v. City of Cleveland, 229 F.3d 559, 562–63 (6th Cir. 2000).

Direct evidence of discrimination is evidence that “does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003). To prove the case of race discrimination, direct evidence “must establish not only that the plaintiff’s employer was predisposed to discriminate on [a protected basis, such as race], but also that the employer acted on that predisposition.” Hein v. All Am. Plywood Co., 232 F.3d 482, 488 (6th Cir. 2000).

Importantly, especially to this case, it is not enough to show that the racially discriminatory statements were made, but the employee must present evidence that the discriminatory statements came “from decisionmakers” or were tolerated by those decisionmakers to support a claim of discrimination. Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009). More specifically, “discriminatory comments can qualify as evidence that a particular decision was discriminatory if the speaker was ‘in a position to influence the alleged decision.’” Griffin v. Finkbeiner, 689 F.3d 584, 595 (6th Cir. 2012) (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 355 (6th Cir. 1998)).

And this is where the United States Court of Appeals for the Sixth Circuit held that Souare’s case fell apart:

The only individual that Souare has identified with any kind of decision-making authority is David Chastka, the person who helped him get hired by Kenny/Obayshi in the first place. But the record is clear that the bald supervisor who gave Souare his paycheck and told him not to come back—and who allegedly said, “this is not an African job”—was “not David Chastka.” There is no evidence or even argument that this supervisor had any decision-making authority over Souare’s termination. Moreover, Souare testified at his deposition that when he emailed Chastka following his termination, Chastka responded that “he was not there at that time.” And Souare agreed that Chastka “didn’t discriminate against [him] or harass [him] in any way.” On this record, Souare has not sustained his burden.

To be sure, the statements Souare identifies are racist and xenophobic, and do not belong in the workplace. But isolated remarks made by non-decisionmakers do not qualify as direct evidence of discrimination.

Laborers’ Int’l Union of N. Am., Loc. 894, at *2.

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How do I get the evidence to prove my race discrimination case?

You may have a good deal of evidence from what you already know or have in your possession, but you do not need to have all of the evidence before you meet with an attorney or even file a lawsuit. A good lawyer can use discovery during the litigation to get information and documents that you don’t have and might not even know about.

In this case, Souare’s lawyers could have asked the employer to identify all of the foreman and supervisors by name and look those people up online so that he could have identified them by picture. Souare’s lawyers could have requested personnel files and deposed as many managers, supervisors or HR representatives as necessary to get that information. That did not happen in this case and the United States Court of Appeals for the Sixth Circuit took the opportunity to point out the lawyers’ shortcomings:

Souare bears the ultimate burden of proving his discrimination claim, which requires facts that might support a finding that the individuals who made the alleged statements had decision-making authority or otherwise influenced Kenny/Obayashi’s decision to terminate Souare. See Geiger, 579 F.3d at 620-21; Griffin, 689 F.3d at 595. To satisfy that standard, Souare points only to his claim that the speakers held the titles of “foreman” and “supervisor.” Despite the district court’s extension of the discovery deadline, Souare took only one deposition, and opposed summary judgment primarily by citing to written discovery responses that he did not sign. Kenny/Obayashi deposed Souare, but Souare never deposed the foremen or supervisor who were said to have made the statements. Nor does the record contain the supervisor’s name or official role.

Laborers’ Int’l Union of N. Am., Loc. 894, at *2 (footnote omitted).

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How do I find the best lawyer to help me with a claim for racial discrimination?

Best Race Discrimination Attorney Answer: If dealing with race discrimination or harassment because you are Black at your workplace, call the right attorney now. Race discrimination takes many forms and may involve harassment, unfair discipline, wrongful termination , disparate treatment discrimination, demotions, and/or being paid less. When you call Spitz, The Employee’s Law Firm, you will get a free and confidential consultation with experienced race discrimination lawyers who will help you to figure out the best way to pursue your potential legal claims. (Read: What is the Spitz No Fee Guarantee?). Our Ohio, Kentucky, Michigan, and North Carolina employee’s rights attorneys are here waiting to help you.


The race discrimination and wrongful termination information on this racial discrimination blog and on this employment law website are for educational purposes only and not top provide direct legal advice to you. If you are still have questions about being racially harassed, wrongful fired or other employment issue, pick up the phone and give us a call. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.

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