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1 PROBLEM:Ethnic based harassments; exclusion at workplace due to ethnicity has seen many instances which affect the social cognition of the employee. The employee is bound by the contract with his employer and cannot raise his voice against his willful exclusion by the management on grounds of ethnic origin or racism. This poses a great threat to the workers to work in an alien land without any security to protect their jobs. 0.2 AIMS AND OBJECTIVES:The aim of this paper is to ascertain the gravity of the racial discrimination meted out to the employee and the effect of the same on his social cognition. The paper would also aim to formulate steps which are the need of the hour to see that a free and fair organizational set up is maintained for a employee to work without any expectation of biasness and fear. The paper would also aim to ascertain the position of the migrant workers who are the worst affected due to the discrimination based on ethnic lines. The object of the paper is to highlight the atrocities which are committed on the employee not on the basis of his performance but on the basis of his ethnic origin. It is also necessary to bring to light the plight of the migrant workers who are neglected by their employers inspite of their strenuous and laborious work in terms of pay and perks in brown collar jobs and also in terms of organizational decision making in white collar jobs. 0.3 HYPOTHESIS:The paper presumes the proposition that discrimination on the basis of ethnicity and race has become so rampant that the international legal framework has been successful in curbing the menace of racial discrimination at workplace. I. INTRODUCTION:Its been more than fifty years since, the US Supreme Court had judged the famous Brown v. Board of Education1, but even then our society and workplace is profiled and deeply scarred on the basis of race and ethnicity. The year 2001 was declared as the International Year for Mobilization against Racism, Racial Discrimination, Xenophobia and Related Intolerance but still the institutional framework has been slow in curbing the racial

347 U.S. 483 (1954)

atrocities committed by the employers. Discrimination at work is a phenomena which occurs regularly on a daily basis. It can be in the form of remuneration to an employee which is not equal to his peers to barring a women from procuring a loan in the absence of assent form her spouse to denying a person from obtaining a business license because of his ethnic origin. The fact is that many people are denied jobs not on the basis of their capabilities but merely on the basis of their color, race or ethnicity. This is simply to control the job market only in the hands of a few. Theoretically, work is a privileged entry point for any individual and its aim is to liberate society from discrimination, but the practicalities are completely different. Discrimination at work place undermines the worth of the individual and is detrimental to justice and democracy at workplace. The globalization of the world market has led to the free movement of labor without any restrictions based on geographical lines. It has been seen that as the economy progresses towards free market, with the growth of wealth, it is also leading to growth of labor force consisting of both the nationals and also other employees from different parts of the world. With the growing workforce consisting of employees from various countries there also grows with it a sense of xenophobia and animosity among the host country laborers and also mainly due their employers. In modern times, as social relations at workplace becomes increasingly crucial at workplace to individuals as it is very much essential to employment success, discrimination on racial lines saddens the endeavor of the employee to make his employment a fruitful experience. Though the blatant forms of racial discrimination have found to be disappeared, but they have taken a new form of harassment which is real and consistent, though not much publicized, is the discrimination on ethnic origin of the employee causing a major concern, also for the international labor organization. Though there have been summits, declarations and binding instruments, they have been far from successful in ensuring that there is no racial discrimination at work place mainly because of the fact the problem is not one of a legal nature but of a psychological one. Hence, as the problem is that of the latter, then it becomes very difficult for the employee, as for him it becomes a decision between right and food, between choice of which the employee would choose the latter. II. THEORIES OF DISCRIMINATION:-

In order to understand the modalities of racial discrimination at workplace one must understand that the organizational set up becomes the basis of discrimination, sometimes it is hostility between the employees themselves which become the basis of segregation and also sometimes it is response of the employees in order to fit to the workplace environment which also become the basis of discrimination. 2.1 Structuralist Theory of Discrimination

The structuralists believe that the discrimination does not which emanates from within the organization but due to the exogenous forces such as persistent societal bias that lead to the discrimination. The employer can rubbish the claim by saying that he cannot be held responsible for societal discrimination.2 Susan Sturm has vehemently argued that structural discrimination is such a complex form that over the years there forms of a patterns of interaction which has the effect of excluding the non-dominant groups.3 This exclusionary effect has a great effect on the entry and promotion. Moreover, it is the willfulness upon the peers to view the same behaviour in quite a different manner. It is advocated that though these are factors of social, economic and political in nature, though exogenous, have the effect of magnifying the differences. 4 The main focus of this theory is to focus on the interaction between the exogenous forces vis--vis organizational setup, inorder to see whether a behavior which appears prima facie to be gender neutral which when taken in isolation has the element of pure gender bias in it.5 Tristin Green argues that dynamics of discrimination that occur in the work place are majorly due to the establishment of employment structures. She makes the employers responsible for the discriminatory bias which is caused due to the subjective criterion of decision making.6 Hence, when too much of subjective discretion is there, the greater the instances of its misuse in the form of discrimination on racial lines.

Leticia M. Saucedo, Three Theories Of Discrimination In The Brown Collar Workplace, 1 U. Chi. Legal F. 345(2009). 3 Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum L Rev 458, 553-67 (2001). 4 Michael Lounsbury and Marc Ventresca, The New Structuralism in Organizational Theory, 10 Organization 457, 466-68 (2003). 5 (Susan Sturm, note 2, p. 553-67) 6 Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory, 38 Harv CR-CL L Rev 91, 93 (2003)

The effect of the structuralist theory is seen in workplace with migrant workers. The employer here tries to make the structurisation of the workplace in such a manner only those workers are attracted whose choices are constrained by societal force in order to subvert the liability.7 Because of this there exists a unalterable structure that determines jobs that are available, the pay rate and the worker mobility, which inturn leads to the discrimination. The choice of the employee is constrained by the practices of the employer.8 The following example would clear the animus of the structuralist theory. For example, it has been a recent trend of outsourcing to India. India also a history of many people from outside India living and working as part and parcel of this land. Now, for instance, an AB Company wants to set up its office in India. For the post of the receptionist a lady is required. The job requires that women need to work from 11:00pm to 5am. Then, inorder to discriminate the employer would make his organizational structure in such a manner that women from India do not opt for that post as the general societal perception is that women in India cannot work during night hours due to the conservative societal set up. Hence, it is clearly seen that this racial discrimination can take place on the basis of racism which go unnoticed due to the closely knit organizational structures. Another important aspect which is include within this theory is the work culture at employment. This suggest a Marxist influence on social definition of culture, on the the basis that the cultural process are intimately interconnected with the racial structuring of the social relations and also age of oppressions in the form of dependency.9 Hence, the work culture of an organization is structured in such a manner so as to adhere to the general expectation code of the organization though not formally mandated. As the evolution of society is a dynamic process, work culture also develops dynamically basing on the organization.10 It is because of this work culture which mandatorily or probably even more stricter( for the ethnic migrant), the employer could rubbish the claim of the prima facie discrimination on the ground that the required competency for the nature of job is different and the discrimination is one which is societal but not organizational one.
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Vicki Schultz, Life's Work, 100 Colum L Rev 1881, 1898 (2000). Vicki Schultz and Stephen Petterson, Race, Gender, Work, and Choice: An Empirical Study of the Lack of Interest Defense in Title VII Cases Challenging Job Segregation, 59 U Chi L Rev 1073, 1095-1135 (1992) 9 Richard Johnson, What is Cultural Studies Anyway? 16 Soc. Text 39 (1987). 10 Tristin K. Green, Work Culture and Discrimination, California Law Review, Vol. 93, No. 3 (May, 2005), pp. 623-684.

2.2 Performance Identity Theory Intersectional Theory or Performance Identity theory is where the analysis of the effect of the practices of the employer on the employees. This approach sees how the employers practices effect the people with multidimensional identities. The two main postulates of this theory is that the intersection of the racism and sexism i.e colour based discrimination and gender discrimination, which puts into motion the real effect of the impact on the employees due to the practices of the employers. Race discrimination in the workplace "is a dialectical process within which race both shapes, and is shaped by, workplace culture.11 It is also to be noted that "race-producing practices reflected in the daily negotiations people of color perform in an attempt to shape how (especially white) people interpret their nonwhite identities."12 In short, it is understood that people do not come to the workplace with a predetermined mind of a racist but adjust themselves according to the dynamics at the workplace, they see and experience.13 As Carbado and Gulati explain: "in the context of everyday interactions, people construct--that is, they project and interpret particular images of--race," as well as class and gender.14 The notion developed in the recent times is of racial penalty i.e. even in this racial discrimination there is a chance of gender discrimination. It is also seen that in the United States there is a significant occupational segregation in earnings which can be perceived by the fact that the racial penalty is greater for men than woman which is self explanatory as the occupational segregation among Hispanic/black men and white men is greater than the white women.15 The employees start responding to the employers practices in a manner that gives employer to make up a stereotype mind as regards workers of the that class, race and ethnicity. To that extent employer preferences and statistical discrimination rely on stereotypes and biases based on race, ethnicity, gender, or another protected category, make


Devon Carbado and Mitu Gulati, The Law and Economics of Critical Race Theory, 112 Yale L J 1757, 1758 (2003). 12 Ibid. 13 Ibid 14 Ibid 15 K. Bayard, J. Hellerstein, D. Neumark and K. Troske, Why are racial and ethnic gaps larger for men than for women? Exploring the role of segregation using the new worker-establishment characteristics database, National Bureau of Economic Research Working Paper No. 6997 (Cambridge, MA, 1999)

their preference-based behavior is discriminatory.16 It provides insight into how workers adapt their behavior to cope with stereotypes or preconceptions of their abilities, skills, and aspirations in the workplace.17 This stereotype of the employers may be negative or positive. If negative, then the employer would have workers who would not complain about the safety conditions at workplace though they may be not to the standards set by law, though a employee would be hardworking he/she would not be given the appropriate recognition from the employer and the employee can do nothing but to bear with or leave the job, and if the latter then it would be very difficult for him to find another in these hard times. 2.3 Perpetual Segregation Theory:Russell Robinson in his groundbreaking work on this theory had propounded the segregation is quite but evident among the outsiders and insiders.18 He posits how the whites and blacks differently view racial discrimination substantially based on the perpetual frameworks and reach distinctly different conclusions.19 For the whites, it is termed as colorblindness perspectives which views race consciousness as racially disruptive and for the blacks pervasive prejudice perspective which, according to Russell, is a day-to-day commonplace event and which is rooted in the society, which could continue till the world lasts.20 This segregation in the perception by the blacks and the whites is perpetual due their own perception of racial discrimination which leads to a perpetual segregation among them about the notion of racial discrimination at workplace. This is seen when a set of facts are presented to both the blacks and whites, it is perceived by them in a completely different manner, which is due to their preconceived notion of the existence of racial discrimination.21 The whites adopt the view of the Supreme Court which propounds discrimination as manifestation of bad intent.22 He calls the whites color blinds because they never perceive the existence of racial discrimination because there is no overt evidence which comes

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Devon W. Carbado and Mitu Gulati, Working Identity, 85 Cornell L Rev 1259, 1262-63 (2000) Leticia M. Saucedo, The Employer Preference for the Subservient Worker and the Making of the Brown Collar Workplace, 67 Ohio St L J 961, 964- 971 (2006) 18 Russell K Robinson, Perpetual Segregation, 108 Colum. L. Rev. 1093(June, 2008). 19 Ibid. 20 Ibid. 21 Eduardo Bonilla-Silva, Racism Without Racists (2d ed. 2006) p. 89 22 Washington v. Davis, 426 U.S. 229, 239 (1976)

forward to manifest itself of the existence of a racial hostility.23 As the whites and blacks have lived together for a long time now, this diminishes the chances of obtaining any overt evidence on racial discrimination. The whites deny the existence of racial discrimination, and rubbish the historical claims to discrimination like slavery as a thing of the past.24 On the other hand, the blacks are race conscious and term the racial segregation as common and structural defect in the organization of the society. They posit the argument that the elements of racism manifests itself in their everyday life but not enough to convince the whites.25 The difference between the thinking of the blacks and the whites is that the latter thinks that the race consciousness is a evil and needs completely avoided and the former view the as aspect of race consciousness as central to their survival.26 The said two perspectives are always at loggerheads. The whites always reject the existence of any racial discrimination unlike the blacks who insist on the existence of it.27 The reason for this is historical. The whites and the blacks have always remained within their communities, married within their communities.28 For instance, Black and white Americans typically inhabit spatially separate worlds that differ in material resources, security, status, culture, and opportunities.29 Hence, the segregation. But this situation is changing due to the evolution of society. Though interaction at workplace must be in a healthy manner based on professionalism and civility it ultimately results in discrimination on racial lines thereby resulting in the whites and the blacks remaining at loggerheads all the time.30 This makes the workplace environment psychologically unhealthy to work in.31 III. INTERNATIONAL MECHANISM AND LEGAL FRAMEWORK:-


Joe Feagin & Eileen O'Brien, White Men on Race: Power, Privilege, and the Shaping of Cultural Consciousness (2003) p. 159 24 (Silva, supra note 18) 25 Donna Chrobot-Mason & William K. Hepworth, Examining Perceptions of Ambiguous and Unambiguous Threats of Racial Harassment and Managerial Response Strategies, 35 J. Applied Soc. Psychol. 2215, 2221 (2005) 26 Barbara J. Flagg, "Was Blind, But Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 Mich. L. Rev. 953, 969-72 (1993) 27 John F. Dovidio & Samuel L. Gaertner, Aversive Racism, 36 Advances Experimental Soc. Psychol. 1, 2 (2004) 28 Michael I. Norton et al., Color Blindness and Interracial Interaction: Playing the Political Correctness Game, 17 Psychol. Sci. 949, 950 51(2006). 29 Michelle Adams, Radical Integration, 94 Cal. L. Rev. 261, 279 (2006) 30 Devon W. Carbado & Mitu Gulati, Working Identity, 85 Cornell L. Rev. 1259, 1262 (2000) 31 Russell K. Robinson, Uncovering Covering, 101 Nw. U. L. Rev. 1809, 1821 (2007)

The principles laid down in UDHR32, ICCPR33, ICESR34, CERD35 and ICRMW36 lay down that the non-discrimination shall be guaranteed to everybody irrespective of their ethnicity and race.37 The ICRMW is the core human rights treaty that focuses specifically on the protection of non-citizen and also their family.38 In General Recommendation No. 30, the CERD states categorically that racial or ethnic profiling or stereotyping of non-citizens must be avoided.39 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance 200140, through Para 5141 aims to create a working atmosphere to the migrant workers free from racist and xenophobic culture and access to justice in accordance with the international human rights instruments. The ILO promises that migrant workers would be given a fair deal in the global economy due to international migration.42 The Special Rapporteur appointed by Commission on Human Rights had obseverved instances of multiple discrimination and violence against migrant women.43 This Session elaborately discusses the rights of the migrant workers to have a congenial environment to economic growth and employment without any extraneous considerations of xenophobia and racial discrimination. Without interfering with the sovereignty of the States,
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Universal Declaration on Human Rights, 10th December 1948. International Covenant on Civil and Political Rights, General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976 34 International Covenant on Economic, Social and Cultural Rights, General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 3 January 1976 35 International Convention on the Elimination of All Forms of Racial Discrimination, General Assembly resolution 2106 (XX) of 21 December 1965 entry into force 4 January 1969. 36 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Adopted by General Assembly resolution 45/158 of 18 December 1990. 37 U.N Human Rights Commission, General Comment 15, The Position of Aliens under the Covenant, at 1-2, 27th Sess., U.N. Doc. A/41/40 (Nov. 4, 1986). 38 Article 9, accessed on 3rd March 2010. 39 General Recommendation No. 30: Discrimination Against Non-Citizens, at 2-3 (Oct. 1, 2004), available at accessed on 3rd March 2010. 40 Durban, South Africa, from 31 August to 8 September 2001. accessed on 3rd March 2010. 41 We reaffirm the necessity of eliminating racial discrimination against migrants, including migrant workers, in relation to issues such as employment, social services, including education and health, as well as access to justice, and that their treatment must be in accordance with international human rights instruments, free from racism, racial discrimination, xenophobia and related intolerance; 42 Global Conference of the International Labour Organisation, 92 nd Session 2004 Extracted from the Report of the Committee on Migrant Workers, 43 Commission on Human Rights [CHR] Res. 1999/44, 3 (Apr. 27, 1999), Comm'n on Human Rights, Report of the Special Rapporteur, U.N. Doc. E/CN.4/1999/80 (Mar. 9, 1999) (prepared by Jorge A. Bustamante).

the states have an obligation to formulate policies in such a manner so as to give equal treatment to the national workers and also the migrant workers and also have minimum standards of protection to all and also promote measures to combat racism and racial discrimination. The World Conference Against Racism(2001) adopting the mandate of the World Conference on Human Rights aims for speedy and comprehensive elimination of all forms of racial discrimination, xenophobia and all forms of related intolerance. It encourages multiculturalism and pluralism in the work place as it considers mankind to be one human family with diversity. This would also mean that the workplace being the family at a smaller level should be able to tolerate the pluralistic society and cannot continue with the conservative approach as it would mean the downfall of the organization. It also recognizes the xenophobia against the non-nationals particularly the migrant workers. The importance of technical assistance of the ILO to set up a institutional framework to combat racism at workplace is necessary as it had done in Africa in the post-apartheid regime. ILO Conventions No. 97 (Convention No. 97) and No. 143 (Convention No. 143) are the specific ILO instruments aimed at the protection of migrant workers and are both supported by non-binding recommendations.44 The Labour Relations Act 1995 was enacted and prohibited any form of unfair dismissal on grounds of race, religion, color, sex and ethnicity. This all inclusive participatory process required the employer to implement affirmative actions in order to protect the black people and submit the reports of the action taken by them in that regard. The ILO had also helped Namibia in identifying the intricacies of racial discrimination which helped them in drafting the Affirmative Action (Employment) Act, 1998. This enabled combating racism against the stakeholders like the black people. This has been a model for all the neighboring countries like Botswana, Namibia and Malawi.45 The 1997 Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration called on


See ILO, Convention (No. 143) concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, June 24, 1975, 17426 U.N.T.S. 1120 [hereinafter Convention No. 143]; ILO, Convention (No. 97) concerning Migration for Employment (Revised), July 1, 1949, 1616 U.N.T.S. 120 45 ILO: Namibia: Affirmative Action In Employment, Final Evaluation Report, doc. NAM/96/ MO3/NOR (Geneva, 2000).

the ILO to promote the implementation of the conclusions on migrant workers in timebound activities.46 IV. IMPACT OF THE LEGAL FRAMEWORK There are umpteen number of conventions at the international level and also their implementation by the States at the local levels, it is pertinent to know the impact of these legal framework and also the affirmative action by the State in ameliorating the racial discrimination at work place. The ILO Report on Time for Equality at Work47 had

investigated and found that the following outcomes of the affirmative actions taken by the State for mitigating the menace of racial discrimination at workplace1) It has been seen in Northern Ireland where the State had been carrying out employment schemes since 1989, the employment segregation levels have drastically dropped down where there was earlier rampant discriminatory policies between the under represented Catholics and Protestants.48 2) It has been observed that, in the once epicenter of Human Rights violations at workplace of South Africa, the income of black households have risen from 1000 to 1.2 million households in the last decade49, the international instruments have brought about by discouraging the States from perpetuating racial discrimination at workplace. 3) Empirical evidence suggest that the impact of affirmative action on elimination of racial discrimination depends upon the causes of such discrimination. However, it is seen that the Nordic States and United States of America have been effective in curbing gender discrimination but not the racial discrimination. However, to some extent the affirmative action employers have enabled the minority employees to overcome and improve their qualifications.50 4) Generally, it would be apprehended that extreme form of racial discrimination would hamper the productivity at workplace. But it would also mean that the affirmative

Ryszard Cholewinski, The Human And Labor Rights Of Migrants: Visions Of Equality, 22 Geo. Immigr. L.J. 177(Winter, 2008). 47 Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work(ILO, Geneva, 2003), p. 66 48 B. Hepple Work, Empowerment And Equality (Geneva, ILO, 2000), pp. 4-6. 49 International Council on Human Rights Policy: Racial and Economic Exclusion: Policy Implications (Versoix, 2001), p. 10. 50 Supra note 47.


action taken by the State would frown the majority employees. It has been observed in surveys conducted in Australia and United Kingdom that these equal opportunity policies have no effect on the productivity of the enterprises, these policies being compulsory.51 5) In Brazil it was seen that the segregation of occupational income between the black family income was 43% to the white family income. Though affirmative action in the form of quota system was introduced in 2002, it did not have much impact as the white family income is 20% more than the black family income.52 V. NEED OF THE HOUR The International Labor Organization in association with the States, Non-governmental Organization shall ensure the following:1) Setting up of counseling centers at workplace with professional counselors so that the migrant workers can be afforded assistance for any kind of racial bias which happens at workplace. 2) Also the counselors should also be empowered to educated and disseminate information regarding the harmful effects of racial discrimination at employment to the majority employees (who may dominate or discriminate against the minority). 3) The implementation mechanism at the grassroot level needs to be strengthened so that migrant workers are free to approach the authorities against the xenophobic nature of the employer. While setting up standards due consideration should also be given to the gender bias. 4) Also, while aiming for a effective mechanism one cannot neglect the assistance of the alternate dispute resolution mechanism (ADR) and one needs the assistance of a independent ADR provider. The panel of arbitrators needs to be suggested according to the mutual understanding of the migrant labor union and also management.53 This essential because, the persons chosen in the panel would ensure that there is

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Ibid. United States Bureau of the Census: Statistical Abstract of the United States: 121st edition (Washington, DC, 2001); Brazilian Institute of National Statistics and Geography (IBGE) and Brazilian Institute of Applied Economic Research (IPEA); Malaysian Economic Planning Unit (EPU) five-year and long-term development plans; Statistics South Africa. 53 David A. Hoffman and Lamont E. Stallworth, Leveling The Playing Field For Workplace Neutrals: A Proposal For Achieving Racial And Ethnic Diversity, 63-APR Disp. Resol. J. 37(2008).


neutrality in the adjudication of the arbitrator as they are chosen by the minority neutrals.54 5) As generally, the migrant workers are skeptical to approach the authorities against his employers mechanism need to be developed so that the anonymity of the complainant needs to be maintained so as to ensure his job security. At the same time, the authenticity of the complainant and also the complaint needs to be checked. All the legal proceedings against the employer by the employee shall be held in camera so as not to hamper the future prospects of the employee. 6) At the international level, the ILO needs to check that all the national legislation of the States and all concerned applicable social laws extend to the protection of migrant workers also. The ILO should pressurize the state to submit a report as regards the same. The ILO needs to set up a separate committee called the ILO Committee for Protection of Migrant Workers against All Forms of Discrimination. 7) The NGOs shall be empowered to set up counseling centers and also have a direct contact with the ILO Committee so that the committee gets a unbiased opinion for further action against the state. 8) The main drawback of the ILO is that the implementation and binding mechanism is very slow. Hence, the State takes this to their advantage. The ILO implementation mechanism should be effective developed so as to see that the States heed to the pressure by the ILO. VI. CONCLUSION Finally, it is understood that the role of the State in controlling and curbing racial discrimination at workplace is of a dual role. On the one hand the right is a negative right with a corresponding duty upon the State not to indulge in discrimination on racial and ethnicity. On the other the State has to take affirmative steps to see that the minority are not discriminated on ethnic and racial lines. Hence, it is seen that because of the various affirmative steps taken by the State there has been upto a large extent reduction in discrimination among employees on racial lines. However, the recent trends in employment show that the tendency of the menace infiltrate in workplace would not take much time.

Dispute Resolution in Action: Examining the Reality of Employment Discrimination Cases: Proceedings of the 2007 Annual Meeting, Association of American Law Schools, Sections on Employment Discrimination and Alternative Dispute Resolution," 11 Empl. Rights & Empl. Pol. J. 139, 143 (2007).


Hence, it is necessary that the with the plan of action as suggested above it is very much essential to protect the safety and security of the ethnic minority at workplace-if one wants to, honestly, make this world a global village.