Although great strides have been made in preventing and correcting race discrimination in corporate America since 1964, race remains the most alleged basis of discrimination under Federal Law.  Between 1992 and 2005, the percentage of EEOC charges that allege race discrimination ranged between 33.8% and 40.9%.  While in 2005, 35.5% of the EEOC´s charge receipts alleged race discrimination.  Racial bias, harassment and discrimination remain persistent problems in the workplace.

In furtherance of its efforts to eliminate workplace discrimination, in April 2006 the EEOC issued a Policy Guidance Specific to Race and Color Discrimination that became the revised Compliance Manual Section on Race and Color Discrimination.[1] It provides insight into and direction on contemporary workplace discrimination issues (that are often quite subtle) involving race and color.  The Manual Section also reminds us that employers may be making unintentional unlawful employment decisions each day, without fully appreciating the implications of their actions.

The Complicated Issue of Race Discrimination 

"Subtle" discrimination issues raised in the Manual may be hidden pitfalls to even the most savvy HR professional.  Some issues to keep in mind:

• "Race" is more than just a category. 

Although "race" is not defined by Title VII, it can be more than simply Caucasian, African American, American Indian, Asian, Pacific Islander or Hispanic.  For example, race discrimination may extend to one´s: ancestry, physical characteristics, race-linked illness, culture, perceived racial group, association with someone of a particular race, or a relationship with a particular subgroup. 

• "Color" is a separate basis for discrimination. 

While skin tone may be indicative of race or national origin, skin color alone is a legal basis for discrimination.  For example, a light-skinned African American may have a claim for discrimination based on color if he is treated differently than his similarly situated dark-skinned African American colleagues.

• "Intersectional discrimination" may be actionable.  

The combination of TWO protected bases for discrimination may amount to ONE protected employee.  According to the EEOC, "Title VII prohibits discrimination against African American women even if the employer does not discriminate against White women or African American men." 

• Client preference is not a defense to discrimination. 

Hiring or placement of someone of a particular race to the exclusion of others because it is believed that customers will respond best to someone of that race is a violation of Title VII, according to the EEOC.  The EEOC states that employers may not deny opportunities by "limiting, segregating, or classifying" employees because of race.  This is true even if the employer honestly believes his customers would prefer working with someone of a particular race.  Race and color can never be bona fide occupational qualifications.  42 U.S.C. §2000(e)-2(a)(1).

• Comparative treatment may be probative.

An employee may claim that a colleague of a different race is consistently treated more favorably than he is with regard to overtime, assignments, and performance evaluations and he may think that he has good evidence to support a discrimination claim.  While such information may indeed be probative, evidence of different treatment of similarly situated employees (those in the same job category, same experience level, similar discipline and performance evaluation history, etc.) of different races must be viewed in light of all circumstances.  There are some situations where markedly different treatment of those individuals may be persuasive and may result in a discrimination claim; and some where there is a legal, valid business explanation for the seemingly different treatment. Inconsistent applications of policies may also be fuel for a discrimination claim. Keep in mind that consistent application of all policies (whether written or evolved through a past practice) is a must. 

• Good or neutral intentions may not be relevant. 

Disparate impact claims occur when a facially neutral policy or practice has the effect of discriminating against a protected class.[2]  Moreover, disparate impact claims do not require the complainant to show any discriminatory motive on behalf of the employer.  For example, an employer may publish job openings for laborers in a local paper where the residents are predominantly Caucasian, but does not advertise the openings in the neighboring town´s paper, where the residents are predominantly Hispanic.  The employer alleges that they never intended to dissuade Hispanics from applying for laborer jobs, but the effect was that Hispanics represented 1% of the employer´s workforce.  A Hispanic job applicant may be able to use this information as evidence in a failure to hire claim.  According to the EEOC, other types of policies that could produce a disparate impact include: hiring or promotion criteria, layoff or termination criteria, appearance or grooming standards, education requirements, experience requirements, and employment tests.

Once a disparate impact is shown, the employer has the burden of proving that the policy is "job-related and consistent with business necessity."  Should the employer meet this burden, the complainant can still prevail if he can show that there is a "less discriminatory alternative" that meets the business need and that the employer refused to adopt it.

• Employment tests are not "just tests." 

Employment tests themselves do not run afoul of Title VII; however, if the test has a disparate impact based on race or another protected class, the test must be validated under the U.S. Uniform Guidelines on Employee Selection Procedures.  Further, "race norming" tests are prohibited by Title VII.  Race norming occurs where an employer uses different "passing" scores or adjusts scores for a particular protected class. 

• Yes, you can be liable for the conduct of a customer, independent contractor or client.   

If an employer has "control" over an independent contractor, customer, or client (usually on the premises), it can be liable for the discriminatory conduct of those individuals if the employer "knew or should have known about the conduct and failed to take prompt and appropriate corrective action."  Steps employers can take to avoid this type of liability are to have a broad anti-harassment policy that contains a straight-forward complaint procedure and to train managers and employees on the policy and to detect and report harassing and discriminatory behavior. 

• Performance evaluations are not just "routine." 

To be effective, performance evaluations must be completed by managers who have been trained how to evaluate subordinates in an honest, accurate, and measurable way.  Too often, an employee is terminated for "poor performance;" however, a review of the performance evaluations reveals no evidence of poor performance.  Accordingly, the employer has just given the employee probative evidence that the termination was not for poor performance, but likely because of some unlawful reason - his race, perhaps?  This may occur because those charged with completing the evaluation may honestly believe that the person is not performing well - but is not comfortable giving criticism, does not want to be the one blamed for the employee not getting a raise, and because he does not have the tools to properly evaluate the subordinate. 

• Appearance standards can adversely impact a protected class. 

Facially neutral appearance standards that are consistently applied may still have a disparate impact on a particular race.  As discussed earlier, policies with demonstrated disparate impacts must be job-related and consistent with business necessity.  Examples given by the EEOC in the Manual include:  a six-feet tall height requirement may disparately impact Asian Americans due to average height and weight differences; traditional African or Hawaiian dress that otherwise complies with a dress code cannot be banned; African American women cannot be prohibited from wearing their hair in a "afro" style that complies with a neutral hairstyle rule; exceptions to a no-beard policy must generally be made for Black men who have an inflammatory skin condition that is caused by shaving.

RealSolutions ®: Practice What You Preach - Giving Life to Your Anti-Discrimination Programs

The EEOC and EPS offer the following words of advice:

• A strong EEO/Anti-harassment policy.  Not only must it be comprehensive and easy to read, but it is imperative that all levels of management commit to following and promoting the policy every day.  Moreover, no policy will be effective without it being properly communicated through training of all employees on at least an annual basis. 
• Make employment decisions with confidence.  How?  To the extent feasible, make decisions transparent and based on well-documented evidence.  Those affected by decisions should be given a reasonable explanation for the decision.  It is critical that managers retain documents for the statutorily-defined period.  (Note: states may have more restrictive record retention requirements than Federally-defined requirements.) 
• EEO, EEO, EEO - Diversity, Diversity, Diversity.  Demonstrate your commitment to EEO by recruiting, hiring and promoting from a widely diverse pool of candidates for all job levels.  Re-read and re-distribute your EEO/Harassment policy on a regular basis.  
• Self-evaluations reap great rewards.  Monitor EEO progress by conducting self-analyses of your business.  Check to see if current employment practices disadvantage a protected class, if a particular group is treated differently.  Address past practices that tend to disadvantage a protected class. 
• Revisit and redevelop job descriptions.  Take time to identify the duties, functions and competencies relevant to each job.  Create objective, job-specific qualification standards related to them that will be used for postings and for performance evaluations.  Be consistent in their application.  Analyze recruitment practices to remove EEO barriers. 
• Training and mentoring.  Provide training and mentoring to employees at all levels to give everyone the opportunity, skills, experience and information necessary to perform to their potential and earn promotions. 
• Communicate.   Especially specific job duties, expectations, performance measures and promotion criteria.  Ensure that job openings are communicated to all eligible employees and to the diverse hiring pool outside the organization.

Being aware of subtle discrimination issues, working to avoid them, and proactively preventing situations that may result in discrimination is an ongoing process.  Staying committed to "living" your anti-discrimination policy will not only help to keep your claims down, but will help foster a productive work environment.

Katie Colvin, Esq.is a consultant with Employment Practices Solutions, Inc. offering a myriad of employee relations services in Chicago and throughout the Midwest. Katie has over eight years of employment litigation experience and counsels management on all aspects of the employer-employee relationship from hiring decisions to performance management, to employee misconduct and termination decisions.  She works with employers to avoid harassment/discrimination litigation and conducts investigations and provides counsel if such issues arise.  She received her undergraduate degree from St. Mary´s College, Notre Dame and her law degree from the Loyola University Chicago School of Law.

About EPS

With offices nationwide, Employment Practices Solutions, Inc., www.epexperts.com, provides organizations with assistance in preventing and minimizing workplace employment claims and lawsuits by providing the highest quality human resources consulting available