Issue: The EEOC just revamped its guidance on racial and color discrimination in the workplace.
Risk: These changes signal increased race-bias enforcement, plus more EEOC attention to "subtle" discrimination.
Action: Raise your lawsuit antennae a bit higher to racial bias. Be able to show solid business reasons for employment actions.
The EEOC recently sent a clear signal about its enforcement priorities when it published revised employer guidance on workplace race and color discrimination.
The message: Employee complaints of race bias or color bias will be pushed to the top of the EEOC's inbox. The agency will also be looking for cases to test its new interpretations of race-discrimination law.
The EEOC revised its Compliance Manual Section on Race and Color Discrimination. Those revisions don't change Title VII anti-discrimination law, but they do lay out new guidance on what the EEOC considers to be illegal race and color bias.
The biggest increase in race-bias complaints has revolved around color discrimination, which occurs when a person is discriminated against based on his or her skin pigmentation (lightness or darkness) or complexion. The EEOC says color-bias filings have increased by 125 percent since the mid-1990s.
The EEOC manual makes clear that employers can't manipulate the hiring process to avoid hiring minorities. Using categories such as "institutional fit" or "clean-cut image" may trigger discrimination charges if they lead to turning back minority applicants.
Red flags of race bias
The manual provides clues to what EEOC investigators will look for to prove race/color discrimination:
- Race-related statements (oral or written) made by decision makers: direct or "coded" statements revealing animus.
- Comparative treatment evidence: evidence that the employee or applicant was treated differently than other similarly situated people.
- Relevant background facts: facts concerning the employer's treatment of customers from the same racial background of the employee/applicant.
- Relevant personnel policies: Did the employer deviate from typical personnel policies when making this hiring decision?
- The decision-maker's race is relevant, but it's not conclusive evidence of discrimination or neutrality.
- Statistical evidence: Evidence showing that the employer treats one race significantly different than another can be persuasive.
Bottom line: You're safest when you can show solid business-related reasons for employment decisions. Even then, the reasons must not create a disparate impact on women or other protected classes. A neutral practice with a disparate impact can still be deemed discriminatory.
Online resources: Find the manual at www.eeoc.gov/policy/docs/race-color.html. Read a Q&A fact sheet at www.eeoc.gov/policy/docs/qanda_race_color.html.