This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

Labor/Employment

Sep. 27, 2022

Does disaggregation reveal race-based disparities among Blacks and African-Americans in the workplace?

In The Color of Wealth in Los Angeles report, it was estimated that Black Americans in Los Angeles have a median wealth of $4,000 compared to the $72,000 by African-Americans who have immigrated to the U.S.

Rodney S. Diggs

Partner, Ivie, McNeill, Wyatt, Purcell & Diggs

444 S Flower St Ste 1800
Los Angeles , CA 90071

Cell: (213) 489-0028

Email: rdiggs@imwlaw.com

Howard Univ SOL; Washington DC

"Intersectionality has given many advocates a way to frame their circumstances and to fight for their visibility and inclusion." Kimberlee Williams Crenshaw, many of whom credit as the pioneer of critical race theory, took a serious look at the way the intersectionalities of our identities must always be considered in order to truly understand a person's experience in the world, which includes in their workplace.

Now, with the addition of a new provision to the California Government Code, Black and African-American employees may be able to further advocate for themselves by identifying unique discriminatory patterns and practices by their employers based on sub-classifications of Black or African-American that are at the intersection of the individual's larger Black identity.

Amendments to Senate Bill 189

Senate Bill 189, signed into law on June 30, seemingly carries the spirit of the idea that identities are layered, multi-tiered, and require unique distinction with the addition of California Government Code Section 8310.6. Section 8310.6 imposes mandatory reporting guidelines on state employers requiring them to collect and record specific ancestral and ethnic demographic data on Black and African-American employees, allowing the state to determine the origins of Black and African-American employees beyond what has, to many, become a forced melting pot of "Black."

Section 8310.6(a) reads, in part: "...when collecting demographic data as to the ancestry or ethnic origin of persons hired into state employment, shall include the following additional collection categories and tabulations for Black or African American groups, including, but not limited to, all of the following: (1) African Americans who are descendants of persons who were enslaved in the United States. (2) Blacks who are not descendants of persons who were enslaved in the United States, including, but not limited to, African Blacks, Caribbean Blacks, and other Blacks. (3) Unknown or choose not to identify."

The disaggregation of Black and African-American ancestral and ethnic groups may therefore empower employees by revealing disparities between those who are descendants of slaves and those who are not under Section 8310.36. In The Color of Wealth in Los Angeles report, it was estimated that Black Americans in Los Angeles have a median wealth of $4,000 compared to the $72,000 by African-Americans who have immigrated to the U.S. De La Cruz-Viesca, Chen, Ong, Hamilton, and Darity, Jr. (2016). The Color of Wealth in Los Angeles. Duke University, The New School, the University of California, Los Angeles. Thus, disaggregating the general enigma of "Black" may help to close the wealth gap that exists within the community by ensuring all Blacks are receiving equal wages and opportunities in the workplace.

How Does this Impact the Landscape of Race-Based Discrimination and Harassment Complaints in the Workplace?

In short, it does not - at least not from a legal standpoint. The empowerment of Black and African-American employees to file a protected complaint alleging discrimination based on sub-categories within the larger Black community cannot come without the introduction of more disaggregated ancestral and ethnic categories into the Fair Employment and House Act (FEHA), Gov. Code, § 12940, et seq.

Without amendments to FEHA, many Black employees will be left with the same fight if it appears Blacks as a whole are not being discriminated against in their workplaces when in reality, an employer is exhibiting disparate treatment to only one or more subcategories of Black. As currently written, FEHA does not include provisions for discrimination based on ethnicity - only race, ancestry, color and national origin. Gov. Code, § 12940(a). Ethnicity connotes shared cultural traits and a shared group history. Ethnicity has also been thought to group those who descend from a particular group, in this case, lineal descents of slaves. Thus, FEHA should begin to reflect varying realities in the workplace when it comes to discrimination against Black and African-American ethnic subgroups.

Section 8310.6's Limitations

The most obvious limitation of Section 8310.6 comes from its limited employer pool. Only state employers are required to provide additional demographic tabulations. This leaves a large population of Blacks and African-Americans at the mercy of private employers who may or may not implement similar categories into their hiring applications.

Alternatively, Section 8310.6 could result in further discrimination in hiring and retention of "undesired" Black and African groups if employers have gained more sophisticated information as to their backgrounds, despite California law expressly extending its anti-discrimination protections to applicants for employment positions. Sada v. Robert F. Kennedy Med. Ctr., 56 Cal.App.4th 138, 144 (1997).

With this, Section 8310.6 does however allow potential applicants to avoid disclosure altogether by requiring an "unknown or choose not to identify" option for applicants to protect against potential biases.

Notably, Section 8310.6 only places a minimum requirement of the two new enumerated categories on state employers. Thus, employers are free to create even more ancestral and ethnic sub-categories. This again could be a double-edged sword by either giving employers the power to discriminate against certain groups, or in turn, give certain groups the power to pinpoint discriminatory practices against their ethnic or ancestral subgroup.

Creating Even More "Diverse" Workplaces

Proactively tracking the ancestral and ethnic attributes of Blacks may help contribute to a more diverse work environment. When tracking demographic data, employers can periodically review their recruitment strategy and hiring decisions to make adjustments that may result in a more diverse Black applicant pool and, in turn, a more diverse workforce.

I myself own a multicultural law firm, where "Black" looks different from person to person, and it is important to acknowledge and celebrate the intersections of "Black" not only that we see in each other, but in our histories as well. Section 8310.6 forces employers to do just that if used in the right way.

Employers will be expected to roll out the updated applications on Jan. 1, 2024. The results will be reported in the Annual Census of Employees in State Civil Service report published on or after Jan. 1, 2025.

#369321


Submit your own column for publication to Diana Bosetti


For reprint rights or to order a copy of your photo:

Email jeremy@reprintpros.com for prices.
Direct dial: 949-702-5390

Send a letter to the editor:

Email: letters@dailyjournal.com