Excerpts taken from The U.S. Equal Employment Opportunity Commission "Training and
Technical Assistance Program 2002" are online here
Q & A: Race/Ethnicity/Color - What Practices Are Discriminatory?
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin.
It is illegal to discriminate in any aspect of employment, including:
- hiring and firing;
- compensation, assignment, or classification of employees;
- transfer, promotion, layoff, or recall;
- job advertisements;
- use of company facilities;
- training and apprenticeship programs;
- fringe benefits;
- pay, retirement plans, and disability leave; or
- terms and conditions of employment.
Key Points to Remember
- Title VII prohibits discrimination in hiring, termination, and other forms of discrimination, including in compensation, and "terms, conditions and privileges of employment".
- Title VII also prohibits employers from retaliating against an employee who has either participated in and investigation or other proceeding investigating employment discrimination, or who has opposed discriminatory practices.
- There are two theories for proving a claim of race discrimination: disparate treatment and disparate impact.
- Under the disparate treatment theory, an individual must show that race played a role in the decisional process. An employer's failure to offer a credible and supportable explanation for an employment decision can support a claim of race discrimination under a disparate treatment theory.
- Even when the employer relies upon a racially-neutral selection criterion, an individual can establish a Title VII violation by showing that the criterion has a disparate impact on members of a particular racial group. A selection criterion that has a disparate impact is not automatically unlawful. The employer can justify the use of the criterion by demonstrating that the criterion is job-related and consistent with business necessity. However, the employer can still be liable if a reasonable less discriminatory alternative exists.
Facts About Race/Ethnicity/Color Discrimination
Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of race and color as well as national origin, sex, or religion.
It is unlawful to discriminate against any employee or applicant for employment because of his/her race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes an assumptions about abilities, traits, or the performance of individuals of certain racial groups. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related.
Equal employment opportunity cannot be denied because of marriage to or association with an individual or a different race; membership in or association with ethnic based organizations or groups; or attendance or participation in schools or places of worship generally associated with certain minority groups.
Race-Related Characteristics and Conditions
Discrimination on the basis of an immutable characteristic associated with race, such as skin color, hair texture, or certain facial features violates Title VII, even though not all members of the race share the same characteristic.
Title VII also prohibits discrimination on the basis of a condition which predominately affects one race unless the practice is job related and consistent with business necessity. For example, since sickle cell anemia predominately occurs in African-Americans, a policy which excludes individuals with sickle cell anemia must be job related and consistent with business necessity. Similarly, a "no-beard" employment policy may discriminate against African-American men who have a predisposition to pseudofolliculitis barbae (severe shaving bumps) unless the policy is job related and consistent with business necessity.
Harassment on the basis of race and/or color violates Title VII. Ethnic slurs, racial "jokes", offensive or derogatory comments, or other verbal or physical conduct based on an individual's race/color constitutes unlawful harassment if the conduct creates an intimidating, hostile, or offensive working environment, or interferes with the individual's work performance.
Segregation and Classification of Employees
Title VII is violated where minority employees are segregated by physically isolating them from other employees or from customer contact. Title VII also prohibits assigning primarily minorities to predominately minority establishments or geographic areas. It is also illegal to exclude minorities from certain positions or to group or categorize employees or jobs so that certain jobs are generally held by minorities. Coding applications/resumes to designate an applicant's race, by either an employer or employment agency, constitutes evidence of discrimination where minorities are excluded from employment or from certain positions.
Requesting pre-employment information which discloses or tends to disclose an applicant's race suggests that race will be unlawfully used as a basis for hiring. Solicitation of such pre-employment information is presumed to be used as a basis for making selection decisions. Therefore, if members of minority groups are excluded from employment, the request for such pre-employment information would likely constitute evidence of discrimination.
However, employers may legitimately need information about their employees' or applicants' race for affirmative action purposes and/or to track applicant flow. One way to obtain racial information and simultaneously guard against discriminatory selection is for employers to use "tear-off sheets" for the identification of an applicant's race. After the applicant completes the application and the tear-off portion, the employer separates the tear-off sheet from the application and does not us it in the selection process.
Racial Stereotyping, Subtle Racial Bias, and Code Words
In the prototypical case, race discrimination occur when an employers rejects a member of one racial group in favor of a member of a different racial group. Thus, if an employer refuses to hire an African-American applicant because of his race and, in his place, hires a White applicant, that employer violates Title VII. Race discrimination, however, can manifest itself in a variety of ways. Discrimination is often the product of invidious stereotypes. In some cases, those stereotypes extend to all members of a disfavored group, tainting the employment prospects of any member of that group. In other cases, however, the stereotype draws a distinction between or among members of the protected group. In such a case, an employer, operating from the stereotype, may select one member of the protected group in lieu of a member of that same group. Such "intragroup" discrimination is unlawful under Title VII.
- Example: An employer wants to hire an individual for the position of office manager. The employer is perfectly willing to hire a Black applicant for the position. The employer, however believes that certain African-American, e.g. those unwilling to assume a subservient posture, cannot be trusted. The employer interviews two African-American candidates. One of the candidates is an individual who does not assume the subservient posture preferred by the employer. The other candidate does. The employer hire the second candidate, relying on its stereotypical view that only subservient African-Americans can be trusted. The employer has engaged in unlawful discrimination under Title VII.
The view that title VII reaches discrimination against some, but not all members of the same protected group is in keeping with the Supreme court's pronouncements on the scope of title VII. The Supreme Court has made clear that Title VII protects every individual from employment discrimination. An employer may have a good hiring record with respect to members of a minority group. In a particular case, in fact, the employer may have hired a Africanof that group, while rejecting the candidacy of another group member. That does not, as a matter of law, shield the employer from a Title VII claim if the evidence shows that the employer has in fact relied upon race in making a particular employment decision.
If race plays a role in the decision-making process, the employment decision is the product of impermissible race discrimination, regardless of whether the decision-maker holds explicitly discriminatory attitudes about members of the protected racial group. In fact, racial attitudes can infect employment decisions even where the decision-makers are members fo the same racial group as the aggrieved employee.
- Example: A production company wishes to hire an individual to serve as an employee benefits specialists. The individual making the decision for the company is African-American. The decision-maker does not harbor any racial bias against African-Americans. Nonetheless, the decision-maker is concerned that certain factions within the local union will be upset if a White individual is not hired for the position. With these concerns in mind, the decision-maker elects to hire a White applicant to fill the position. The decision-maker rejects a more qualified African-American applicant, relying on race in making the decision. The company's actions were unlawful. The fact that the company's decision-maker was not subjectively motivated by a bias against African-Americans is irrelevant.
While Title VII does not contain any blanket prohibition against the use of racially discriminatory language in the workplace, the use of such language, however, can give rise to a Title VII claim for racial harassment if the language is sufficiently severe or pervasive to create a hostile work environment. Race based comments or slurs become relevant if the employment takes an adverse employment action against a member of the racial group that is the target of the comment or slur. The use of racially discriminatory terms or code words can provide strong evidence that the employment decision was motivated by race, particularly if the individuals uttering the offensive words are company decision-makers.
Intersectional discrimination is discrimination based on a combination of two or more prohibited bases. In intersectional cases, the discrimination adversely affects individuals who are members of two or more protected categories precisely because they belong to the two categories (e.g. race and gender, color and gender, color and disability, race and age, gender and age, etc.). The discrimination is premised on the combination of protected characteristics rather than any one of them alone.
Take the example of a race and gender claim brought by an Asian-American woman. The woman alleges that she was not hired for a sales position. The claim is not defeated by showing that the employer does not discriminate against women and/or Asian-Americans generally. Rather, the question is whether the employer discriminates against those who are both female and Asian-American. Using the example, the Asian-American woman may have been subjected to stereotypes and targeted for discrimination not because she's a woman or Asian-American, but rather, because she's an Asian-American woman who was perceived as too meek for the sales position. Intersectional discrimination often arises out of stereotyping specific to particular intersected groups, such as women of color, African-American men and racial minorities with disabilities.
It is important to keep in mind that intersectional discrimination is different from discrimination based on multiple prohibited factors. Multiple discrimination involves the allegation of independent claims of discrimination on each of two or more prohibited bases. For example, an employer may have a promotion policy which disproportionately excludes both women (of all races) and African-Americans. In such a scenario, and African-American woman could bring multiple claims of discrimination alleging both race and gender discrimination independently. This differs from the intersectional discrimination where the individual asserts a single claim that the employer has taken some adverse action based on the combination of prohibited characteristics.