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New EEOC Guidance on Race and Color Discrimination

May 1, 2006

by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2006

The U.S. Equal Employment Opportunity Commission (EEOC) on April 19, 2006 issued new guidance on how Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race and color in a wide range of contemporary workplace issues. Among the guidance provided:

• Race – "Title VII does not contain a definition of 'race.' Race discrimination includes discrimination on the basis of ancestry or physical characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features."

• 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."

• Customer Preference – "Basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination. Employment decisions that are bases on the discriminatory preferences of customers or coworkers are just as unlawful as decision based on an employer’s own discriminatory preferences."

• Application Forms – "Asking pre-employment questions about race can suggest that race will be used as a basis for making selection decisions. Therefore, if members of minority groups are excluded from employment, the pre-employment request for the 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' or separate forms for the identification of an applicant's race. In that way, the employer can capture the information it needs but can separate the information from the application and thereby avoid using it in the selection process."

• 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 word-of-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."

• 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."

• Conviction Records – Using 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."

• Arrest Records – "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."

• Employment Tests – Employers may bases hiring or promotion decisions on professionally developed tests "if they do not discriminate on the basis of race. Employment tests that disproportionately exclude applicants/employees of a certain race must be validated. For example, if an employer uses a personality test to assess which employees are 'management material' and the test disproportionately excludes people of a certain race, the employer must have the test professionally validated to ensure that the test accurately predicts or correlates with successful job performance. Employers should also consider whether there is an alternative to the test that serves the employers' needs with less discriminatory impact."

• 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 put-downs, 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 credible 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."

• Additional Guidance – The EEOC has also issued a new Compliance Manual section updating guidance on how Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the bases of race and color.

• Bottom Line – Race discrimination continue to be the most frequent allegation asserted in EEOC charges, accounting for more than one-third of all discrimination charges filed annually. Employers are well advised to periodically review their policies and procedures to ensure that they do not unlawfully discriminate.

Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 335 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.

Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.

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