my manager wanted to assign our hotel rooms based on race

A reader writes:

I’m asking this question on behalf of one of my former coworkers. My former company was a foreign language educational publisher whose staff was pretty diverse. All employees had a professional relationship with each other and well, race never factored into really anything.

The CEO is a different story. Before a major conference, she sent my coworker an email stating that the rooms must be “mixed up by race” and that “two Caucasians cannot stay in the same room together, one Caucasian must always be together with one Asian during all times at the conference, including going on lunch breaks, sharing rooms, and sitting next to each other on the plane.” The reason she gave for this was, as a foreign language company, she wanted us to “live our mission statement.” She also said something to the extent of “because I am a minority, I can make these decisions.” This was not the first time that she has made decisions based on race, but it was by far one of the more absurd.

My coworker–who was planning the conference and was in charge of “splitting up the races” –found this request to be over the top, unprofessional and potentially destructive for her career. She forwarded the email to a number of our colleagues, asking their opinions on how to best approach the CEO about the situation. In doing so, she accidentally forwarded the email back to the CEO, who was beyond angry. She called my coworker into the office, threatened to fire her for insubordination, and called her names (including the Chinese word for devil!). The CEO has refused to give her additional assignments, has generally told her that her life will be a living hell while she stays there, gossips about her to other employees, and even included her refusal to support the policy in her annual performance evaluation (it was 2 pages out of her 5 page evaluation!). During my last day, my exit interview was mostly my boss asking me about strategies for getting rid of that coworker and telling me how evil she is, despite my protests that, well … she’s a great coworker!

This is obviously all horrendous management, but is it legal? Was the initial decision to ask Caucasians and Asians to share rooms at a conference legal, and, were my boss’s subsequent retributions against a coworker who refused to do such a grey area thing illegal or were they just bad management? To complicate things, my coworker is on an H1B1 visa and is afraid that the visa will also be revoked if my boss does fire her for this incident.

Yep, it’s illegal — both the initial instructions to treat people according to their race, and the subsequent retaliation against your coworker for questioning it.

I suspect the reason you’re wondering if it’s illegal or not is that your manager’s initial instructions — while offensive and insulting on multiple levels — weren’t necessarily something that would have a negative impact on race over the other. Usually when we think of laws on this stuff, we’re looking for actions that will have an adverse impact on on a particular group. Asking people to share rooms based on race is problematic for many reasons, but can you argue that it has an adverse impact (versus just being offensive to deal with people by what race they are)?

I turned to an employment lawyer, Erik H., to explain exactly how the law would treat this case. He says:

To use a deliberately compelling analogy: Imagine that an employer segregates employer-provided parking lot buses by race. The employer requires whites to sit on the left, and blacks on the right. There are always enough seats for all races, and there’s no difference between the sides of the bus. There is no provable harm, right? After all, nobody is denied a seat. But the harm arises from the act of discrimination. The employer’s segregation would be illegal. The harm also arises from the implied threat of retaliation if you complain about it.

This is basically the same thing.

Also, when you have such a clear discriminatory intent, then as a practical matter it makes it a lot easier for the EEOC (or courts) to “find” a discriminatory harm, even if it’s fairly remote.

He also says:

Mandatory assignment of tasks, roles, roommates, etc. by race is a violation of federal law. I don’t know for certain whether or not the company is covered by the EEOC, but since you mention a “CEO” it is likely that they have at least 15 employees for EEOC purposes. (If you want information on EEOC coverage and what “15 employees” actually means, here is a link.)

Even if the company is not subject to federal jurisdiction, this behavior is almost certainly a violation of state laws (I’m not familiar with the laws of every state, but I’d be amazed if there was an exception.) State laws usually have lower qualifying limits for employer size.

… The retaliation is also illegal, and is its own separate issue. When an employer does something illegal and when it gets reported, the employer is not permitted to take adverse action against the employee. The actions you describe (illegal act followed by bad reviews and other punishment) are the classic elements of a retaliation claim and would support a civil suit against the employer. For example, if the employee was fired they might be able to get substantial damages.

Unfortunately, this is where theory runs into reality. There are a lot of illegal things that go on and which are never resolved fairly. These things don’t always work as planned, so you’ll need help—because unless the employee helps to preserve evidence and take appropriate action, there’s a chance that they will not get the results that they hope for.

This will almost certainly involve a report to the EEOC. However, the employee should immediately contact an employment attorney, as in “today, if possible.” [A good place to find employee-side specialists is the state arm of the National Employment Lawyer’s Association; try a Google search for “statename NELA.”] The attorney will help both with evaluation (and preservation) of the evidence, and also in helping the employee make the proper reports to government agencies. Do not use a work computer or a work phone to make this contact.

So there you go. Now, because your coworker is here on an H1B visa and concerned about losing her job and subsequently her ability to stay here, one option might be for you to report this to the EEOC yourself — and explain there’s a person being retaliated against who is in a vulnerable position, visa-wise. You could talk to your friend first to make sure she’s comfortable with you proceeding that way, but it really sounds like someone should speak up against this boss, who seems to think that her own status as a minority allows her to get a pass on discriminatory behavior — when it doesn’t.

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