Avoiding Race and Color Discrimination Claims Under Title VII – EEOC Offers New Guidance to Employers
July 1, 2006
Employers continue to face and defend against a substantial number of federal race and color bias claims. To illustrate, in 2005, of the approximately 75,400 charges of discriminations filed with the EEOC, 26,740 (35.5%) were race-based claims. Moreover, the number of color-bias charges has grown from 413 in 1994 to 932 in 2004, an overall increase of over 125%.
To help employers identify and prevent race and/or color discrimination claims under Title VII of the Civil Rights Act of 1964 (Title VII), the Equal Employment Opportunity Commission (EEOC) recently issued new compliance resources, including an updated compliance manual on Race and Color Discrimination and accompanying Questions and Answers About Race and Color Discrimination in Employment. While we encourage you to review the EEOC's new resources in their entirety, this article highlights key points. The full text of the compliance manual and the accompanying fact sheet are available on the EEOC's website at www.eeoc.gov.
Employers should familiarize themselves with the EEOC's new resources and review their current employment practices to ensure compliance.
Employers should consider implementing the EEOC's recommended "best practices" as a means of promoting equal employment opportunity.
"Race" and "Color" Discrimination
Because Title VII does not explicitly define "race" or "color," the manual provides a comprehensive description of what constitutes race and/or color discrimination. While race and color discrimination often overlap, they are not synonymous, and employers should be cognizant of the difference.
The manual states that Title VII's prohibition against race discrimination encompasses discrimination based on ancestry, physical characteristics, race-linked illness (e.g., Sickle Cell Anemia because it primarily affects people of African descent), culture, perception (i.e., discrimination against an individual based on the belief that he/she is a member of a particular racial group), association (i.e., discrimination against a person because of his/her association with people of a particular race) and "race plus" (i.e., discrimination against a subgroup of people in a racial group because of certain attributes as well as their race). Notably, while numerous courts apply a higher evidentiary standard to cases involving reverse discrimination (i.e., discrimination against a majority group), the EEOC analyzes such claims by the same standard applicable to all other race discrimination claims.
As a distinct matter, color discrimination occurs when a person is discriminated against based on his/her skin pigmentation, complexion, shade or tone. Color discrimination can occur between people of the same race or ethnicity, as well as between people of different races and ethnicities. The inclusion of color discrimination within the EEOC's guidelines is intended to help employers identify and combat discrimination based on an individual's skin color, as well as their race or ethnicity.
Recruitment and Hiring Practices
The manual also outlines employment practices that would constitute unlawful discrimination. For example, with respect to recruitment and hiring practices, educational and experience requirements that are unnecessary to a job, and which disproportionately impact certain racial groups, may violate Title VII. Likewise, reliance on word-of-mouth recruitment may inhibit equal employment opportunity and is especially problematic in a non-diverse work setting. In sum, it is essential that employers evaluate their recruiting and hiring procedures to ensure that they are selecting from a diverse pool of candidates.
Note that even if an employer recruits and hires employees in a lawful, non-discriminatory manner, it must ensure that race or color bias does not detrimentally impact work assignments, training, mentoring, performance reviews, compensation or any other term and condition of employment.
EEOC's "Best Practices"
Finally, the manual provides a list of "best practices," which are proactive measures designed to reduce the likelihood of race and/or color discrimination claims under Title VII. Although not a legal requirement, the EEOC encourages implementing these practices to foster equal employment opportunity. Some of the EEOC's best practices are:
Develop a strong EEO enforcement policy that is supported by top executives, train managers and employees on its contents, and enforce it
Document all employment decisions and maintain records for statutorily-required periods
Recruit, hire and promote with equal employment opportunity in mind and implement practices that diversify the pool of applicants
Identify and remove barriers to equal employment opportunity, like word-of-mouth recruiting in a non-diverse workplace
Create objective, job-related qualification standards
Monitor hiring, compensation and performance appraisals for patterns of potential discrimination
Ensure that promotion criteria are made known and that job openings are communicated to all eligible employees
Adopt a strong anti-harassment policy, train employees on its contents, and enforce it
Promote an inclusive culture by encouraging an environment of respect for personal differences
Encourage open communication and dispute resolution
Protect against retaliation
If you have any questions about this article or the EEOC's Compliance Manual on Race and Color Discrimination, please contact Peter Donati (312.476.7590)
or any other member of Levenfeld Pearlstein's Employment Law Group.