The EEOC recently sent a powerful signal about its enforcement priorities when it published newly 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's revisions are applied to its Compliance Manual Section on Race and Color Discrimination. Those revisions don't alter the rules or change the federal Title VII anti-discrimination law, but they do lay out new guidance on what the EEOC considers to be illegal race and color discrimination. (To access the manual, go to www.eeoc.gov/policy/docs/race-color.html.)
Race discrimination includes bias in any employment decision (hiring, firing, pay, promotion, work conditions, etc.) based on the person's ancestry, or on physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or facial features.
The biggest increase in race-bias complaints revolves around color discrimination, which occurs when a person is discriminated against based on his or her skin pigmentation (lightness or darkness), complexion, shade or tone.
Color discrimination can occur between people of different races or ethnicities, or even between people of the same race or ethnic group. Example: A lighter-skinned African-American business owner refuses to hire African-American employees with darker skin.
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 or persons influential to the decision: direct or "coded" statements revealing animus or patently biased pronouncements.
- Comparative treatment evidence: evidence that the organization treated the employee or applicant differently than other similarly situated people.
- Relevant background facts: facts concerning the employer's treatment of customers from the same racial or ethnic background of the employee/applicant.
- Relevant personnel policies: Did the employer deviate from typical personnel policies when making this hiring decision? If so, it could be an indication of discrimination.
- Statistical evidence: Evidence showing that the employer treats one race significantly different than another can be very persuasive. If the organization clusters minorities at the bottom of the organizational chart, and the position in question is in , that may show bias.
Bottom line: Employers are safest when they're able to show solid business-related reasons for their employment decision.
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 (see box below).
Employers must also remember equal opportunity when recruiting. A company with a majority white work force that relies solely on word-of-mouth referrals will continue to be mostly white. Similarly, an employer that recruits only on mostly white college campuses will likely hire only white recruits. Employers should broaden recruiting methods and recruiting locations.
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