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Due to the growing number of race and color discrimination issues, the EEOC issued new guidelines in its
compliance manual providing definitions and guidance on avoiding race and color discrimination allegations under
Federal law - Title VII. Attached is an excerpt from the Compliance Manual in Question and Answer Format.
EEOC’S QUESTIONS AND ANSWERS
RACE AND COLOR DISCRIMINATION IN EMPLOYMENT
INTRODUCTION
Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating in
employment based on race, color, religion, sex, and national origin. It also prohibits retaliation against persons who
complain of discrimination or participate in an EEOC investigation. Everyone is protected from race and color
discrimination Whites, Blacks, Asians, Latinos, Arabs, American Indians, Alaska Natives, Native Hawaiians,
Pacific Islanders, persons of more than one race, and all other persons, whatever their race, color, or ethnicity.
This excerpt of questions and answers are adapted from the EEOC's Compliance Manual Section on Race and Color
Discrimination. For more detailed information about race and color discrimination, you may review the Race and
Color Section on the EEOC's website or call 1-800-669-3362 to request a free copy of the Race and Color Section
of the web site.
What Is "Race"?
Title VII does not contain a definition of "race." Race discrimination includes discrimination on the basis of
ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or
styles, or certain facial features.
Forms used for collecting federal data on race and ethnicity in the workforce use five racial categories:
American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander;
and White; and one ethnicity category, Hispanic or Latino.
What Is "Color"?
Color discrimination occurs when a person is discriminated against based on his/her skin pigmentation (lightness
or darkness of the skin), complexion, shade, or tone. Color discrimination can occur between persons of different
races or ethnicities, or even between persons of the same race or ethnicity. For example, an African American
employer violates Title VII if he refuses to hire other African Americans whose skin is either darker or lighter than
his own.
EMPLOYMENT DECISIONS
What Employment Actions Are Prohibited by Title VII?
Title VII prohibits race and color discrimination in every aspect of employment, including recruitment, hiring,
promotion, wages, benefits, work assignments, performance evaluations, training, transfer, leave, discipline, layoffs,
discharge, and any other term, condition, or privilege of employment.
Title VII also prohibits practices that appear to be neutral, but that limit employment opportunities for some racial
groups and are not based on business need.
What Is Intentional Discrimination?
Intentional discrimination occurs when an employment decision is affected by the person's race. It includes not only
racial animosity, but also conscious or unconscious stereotypes about the abilities, traits, or performance of
individuals of certain racial groups.
Example: An upscale retail establishment with a sophisticated clientele rejects an African American male applicant.
The hiring manager stereotypically believes that African American males do not convey a clean-cut image and that
they lack the soft skills needed to service customers well. A finding of discrimination would be warranted.
What If Clients, Customers, or Employees Prefer Working with People of Their Own Race?
Basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional
race discrimination. Employment decisions that are based on the discriminatory preferences of customers or
coworkers are just as unlawful as decisions based on an employer's own discriminatory preferences.
Can Neutral Policies Be Discriminatory?
Yes, in some instances. Some neutral employment policies or practices may exclude certain racial groups in
significantly greater percentages than other racial groups. If there is a business necessity for the practice and there
is no equally effective alternative, the practice will be lawful despite its impact. However, if there is not a business
necessity for the practice or the business need could readily be met in a way that has less impact, the practice will
be unlawful.
Example: An employer has a "no-beard" rule, which disproportionately excludes African American men because
they have a higher incidence of pseudofolliculitis barbae, an inflammatory skin condition caused by shaving. The
employer must be able to demonstrate that beards affect job performance or safety. Also, there must be no
alternatives to a strict "no-beard" rule that would meet the employer's business or safety needs.
Additional examples of neutral employment policies that may be discriminatory are included in the following
sections.
RECRUITMENT AND HIRING PRACTICES
Can an Employer Ask about an Applicant's Race on an Application Form?
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 separate forms or otherwise keep the information about an
applicant's race separate from the application. In that way, the employer can capture the information it needs but
ensure that it is not used in the selection decision.
Unless the information is for such a legitimate purpose, pre-employment questions about race can suggest that race
will be used as a basis for making selection decisions. If the information is used in the selection decision and
members of particular racial groups are excluded from employment, the inquiries can constitute evidence of
discrimination.
How Can Employers Avoid Racial Discrimination When Recruiting?
Job advertisements - Generally, employers should not express a racial preference in job
advertisements. Employers can indicate that they are "equal opportunity employers."
Employment Agencies - Employment agencies may not honor employer requests to avoid
referring applicants of a particular race. If they do so, both the employer and the employment
agency that honored the request will be liable for discrimination.
Word-of-mouth employee referrals- Word-of-mouth recruitment is the practice of using current
employees to spread information concerning job vacancies to their family, friends, and
acquaintances. Unless the workforce is racially and ethnically diverse, exclusive reliance on wordof-
mouth should be avoided because it is likely to create a barrier to equal employment opportunity
for racial or ethnic groups that are not already represented in the employer's workforce.
Homogeneous recruitment sources - Employers should attempt to recruit from racially diverse
sources in order to obtain a racially diverse applicant pool. For example, if the employer's primary
recruitment source is a college that has few African American students, the employer should adopt
other recruitment strategies, such as also recruiting at predominantly African American colleges,
to ensure that its applicant pool reflects the diversity of the qualified labor force.
How Can Employers Avoid Racial Discrimination in Hiring and Promotions?
Race or color should not be a factor or consideration in making employment decisions except in appropriate
circumstances as set forth at Section 15-VI-C of the Compliance Manual section on Race and Color Discrimination.
Reasons for selection decisions should be well supported and based on a person's qualifications for the position.
Also, an employer should not use selection criteria that disproportionately exclude certain racial groups unless the
criteria are valid predictors of successful job performance and meet the employer's business needs.
Educational Requirements - Certain educational requirements are obviously necessary for some jobs.
However, if the educational requirement exceeds what is needed to successfully perform the job and if it
disproportionately excludes certain racial groups, it may violate Title VII.
Arrest & Conviction Records - Using arrest or conviction records as an absolute bar to employment
disproportionately excludes certain racial groups. Therefore, such records should not be used in this manner
unless there is a business need for their use.
Whether there is a business need to exclude persons with conviction records from particular jobs depends
on the nature of the job, the nature and seriousness of the offense, and the length of time since the
conviction and/or incarceration.
Unlike a conviction, an arrest is not reliable evidence that an applicant has committed a crime. Thus, an
exclusion based on an arrest record is only justified if it appears not only that the conduct is job-related and
relatively recent but also that the applicant or employee actually engaged in the conduct for which (s)he
was arrested.
How Can Employers Avoid Racial Discrimination on the Job?
Employers should not only strive to recruit and hire in a way that provides equal opportunity for workers of all
backgrounds to obtain jobs, but should also ensure that race and color discrimination are not barriers to employees'
success once they are in the job. Race or color should not affect work assignments, performance evaluations,
training opportunities, discipline, or any other term or condition of employment, except in appropriate
circumstances as set forth at Section 15-VI-C of the Compliance Manual section on Race and Color Discrimination.
Example: An employer terminates a new Asian employee on the ground that she performs her work too slowly and
makes too many mistakes. The investigation reveals that although White employees who perform at a substandard
level are coached toward increasingly good performance, new employees of color get less constructive feedback
and training. Therefore, they tend to repeat mistakes and make new ones that could have been avoided. A finding
of discrimination would be warranted.
HARASSMENT
What Is Racial Harassment?
Racial harassment is unwelcome conduct that unreasonably interferes with an individual's work performance or
creates an intimidating, hostile, or offensive work environment. Examples of harassing conduct include: offensive
jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or putdowns,
offensive objects or pictures, and interference with work performance. An employer may be held liable for
the harassing conduct of supervisors, coworkers, or non-employees (such as customers or business associates) over
whom the employer has control.
An isolated incident would not normally create a hostile work environment, unless it is extremely serious (e.g., a
racially motivated physical assault or a threat of one, or use of a derogatory term, such as the N-word, etc.). On the
other hand, an incident of harassment that is not severe standing alone may create a hostile environment when
frequently repeated.
Example: A day after a racially charged dispute with a White coworker, an African American employee finds a
hangman's noose hanging above his locker, reminiscent of those historically used for racially motivated lynchings.
Given the violently threatening racial nature of this symbol and the context, this incident would be severe enough
to constitute harassment.
How Can Employers Prevent Racial Harassment?
The most important step for an employer in preventing harassment is clearly communicating to employees that
harassment based on race will not be tolerated and that employees who violate the prohibition against harassment
will be disciplined. Other important steps include adopting effective and clearly communicated policies and
procedures for addressing complaints of racial harassment, and training managers on how to identify and respond
effectively to harassment. By encouraging employees and managers to report harassing conduct at an early stage,
employers generally will be able to prevent the conduct from escalating to the point that it violates Title VII.
An employer is liable for harassment by a supervisor if the employer failed to take reasonable care to prevent and
promptly correct the harassment or if the harassment resulted in a tangible job action (termination, demotion, less
pay, etc.). For more information, see EEOC's Questions & Answers for Small Employers on Employer Liability
for Harassment by Supervisors. An employer is liable for harassment by co-workers or non-employees if it knew
or should have known of the harassment and failed to take prompt corrective action.
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Race & Color Discrimination Guidelines |
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This information is intended to provide guidance in the area of employment law and is provided as a service of the Firm. While every effort
has been made to ensure the accuracy of the information contained in this bulletin, it is not intended to serve as "legal advice". If additional
information or assistance is needed on any of the topics contained in this informational package or any other matter, please feel free to
contact Cynthia Elkins for further information. All rights reserved. ©2005.
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