OVERVIEW OF RACE AND COLOR DISCRIMINATION

Transcription

1 OVERVIEW OF RACE AND COLOR DISCRIMINATION INTRODUCTION Four decades ago Congress passed the Civil Rights Act of 1964, a pivotal and monumental piece of civil rights legislation. In that Act, Congress included prohibitions against workplace discrimination, set forth in a section of the Act known as Title VII. Title VII makes it unlawful for an employer to discriminate on the basis of race, color, religion, sex, or national origin. The statute extends to public employers (at the federal, state, and local levels) and to most private employers (with 15 or more employees). In this overview, we seek to provide an overview of Title VII s prohibitions against discrimination on the basis of race or color. The overview is divided into two parts. Part I focuses on general legal principles. Chapter 1 delineates the basic definitions of race and color, as they operate in the Title VII context. Chapter 2 provides a general description of Title VII s prohibitions against discrimination. This chapter also sets forth the standards for proving a claim of race discrimination. In particular, the chapter discusses the evidentiary theories of disparate treatment discrimination and disparate impact discrimination. Chapter 3 focuses on the nature of race discrimination. It is sometimes assumed that race discrimination is the product of the most vile racist attitudes. However, individuals who harbor no ill-will toward members of a racial group can still fall prey to racial stereotypes or assumptions and, as a result, rely upon race in making employment decisions. Having touched upon these broad legal principles in Part I, Part II provides an application of these principles in the context of several specific employment practices that can give rise to claims of race discrimination under Title VII. Our A - 1

2 examples, of course, are not all-inclusive of the employment practices covered by Title VII. Chapter 4 addresses the recruitment process, focusing on practices, such as word-of-mouth recruitment and nepotism, that can impermissibly deny employment opportunities to racial minorities. This Chapter also focuses on ways that employers can expand the available pool of job applicants, thus opening the doors to a more diverse workplace. Chapter 5 addresses various selection criteria that can lead to incidents of unlawful discrimination. Employers often adopt specific criteria for making hiring or promotion decisions or for determining which employees to let go in a reductionin-force. These criteria may be either subjective or objective. The use of selection criteria can give rise to a Title VII violation if the criteria are being used with a discriminatory intent or if the criteria have a disparate impact on members of a racial group and are not job-related and consistent with business necessity (These are legal terms-of-art that are described in Chapter 2). Some of the more common selection criteria include education requirements, appearance standards, and seniority. Finally, in Chapter 6, the book discusses employment practices that can affect the terms or conditions of the existing employment relationship. This chapter focuses principally on the issue of racial harassment. In addition, the chapter discusses how employers can use job assignments and other classifying devices to limit the promotional opportunities of minority employees. It should be stressed that this overview is not a legal treatise. By design, the overview simplifies legal points that are highly complex. Our hope is to present the reader with an accurate, but brief view of Title VII protections. Because it is not a treatise, this overview does not contain lengthy citations to court decisions or other legal authorities (although, in the Sections B, C, D of the volume on Race & Color Discrimination, we have provided some legal materials). Not surprisingly, disagreements often arise as to the meaning and scope of Title VII. On many issues, there is no clear consensus, one way or the other, on the proper interpretation of the statute. Where appropriate, we have tried to qualify our statements to make it clear when a legal point being addressed is unsettled. A - 2

3 Throughout the overview, we sometimes refer to race and color or just race ; however, when race is used the analysis applies equally to color. Finally, this overview includes the terms African-Americans and Blacks interchangeably, due to common vernacular usage. A - 3

4 PART I The principal focus of this overview is Title VII of the Civil Rights Act of Specifically, the book addresses Title VII s prohibition against race or color discrimination. The reader should keep in mind that Title VII is not the only statute that prohibits discrimination in the workplace on the basis of race or color. Another federal statute, 42 U.S.C. 1981, which dates back to the post-civil War era, prohibits race discrimination in the making and enforcing of contracts. That statute applies to most forms of employment discrimination. Most states, moreover, have their own laws against workplace discrimination. These laws almost invariably address race discrimination. Because of this overlap, there is a good deal of homogeneity among the various federal and state statutes in this area. In Part I, we discuss a number of the general legal principles that govern the application of Title VII. A - 4

5 CHAPTER 1 - DEFINITIONS OF RACE AND COLOR Title VII prohibits employment discrimination on the basis of race or color (as well as national origin, religion and sex). The term race is not defined in Title VII, nor has the Commission adopted a definition. The common understanding of race is that it refers to groups with certain genetically shared physical features. But while the common perception of race is rooted in physical traits, what matters for law enforcement purposes is its social, rather than biological, significance. Title VII mandates that whatever social significance race has outside the workplace, it may not affect an individual s employment opportunities. In addition, because Title VII prohibits employers from acting on a racial motive no matter what the race the statute prohibits discrimination due to an individual s perceived race. Thus, if an employer takes an employee s race into account in making an employment decision, the employer violates Title VII even if the employer incorrectly perceived the race of the individual. Federal government practices are now in the process of changing to reflect five minimum race categories: American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, and White. Another part of this change is to permit people to identify themselves as members of more than one race. Title VII prohibits race discrimination against all persons. For example, if an employer refuses to promote an African-American because of her race, the employer has violated federal law. Similarly, if an employer refuses to hire a White applicant because of a bias against White individuals, the White applicant has a claim under Title VII. 1 1 See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 280 (1976) (holding, in a Title VII case, that the same standards apply to both White and Black plaintiffs who allege race discrimination). A - 5

6 Many Americans have a mixed racial heritage. In asserting a Title VII claim, however, an individual does not have to provide detailed evidence of that heritage, because the law protects individuals of all racial backgrounds from discrimination. Rarely is the racial make-up of the individual contested. The critical issue is whether the individual can prove that it was the individual s race that led to the adverse employment action. The statute does not define color. The courts and the Commission read color to have its commonly understood meaning -- pigmentation, complexion, or skin shade or tone. Thus, color discrimination occurs when a person is discriminated against based on the lightness, darkness, or other color characteristic of the person. Even though race and color clearly overlap, they are not synonymous. Color discrimination can occur because of a person s preference for, or aversion to, persons whose skin color differs from his/her own. It can also occur within the same racial group as members of the group may have biases against those whose skin is lighter or darker than their own. For example, an African-American may be biased against other African-Americans whose skin is darker or lighter than his/her own. If race or color enters into an employment decision, Title VII is implicated, even if the discrimination involves a distinction among or by members of a particular racial group. A - 6

7 Key Points to Remember All people are protected from discrimination on the basis of race or color, regardless of their race. Persons of mixed racial backgrounds are protected from discrimination and do not need to prove their exact heritage to make out a Title VII claim. It is possible that people will discriminate against persons of their own racial group or against persons perceived to be of a different skin color. A - 7

8 CHAPTER 2 - TITLE VII PROTECTIONS AND THE ISSUE OF PROOF As discussed in Chapter 1, the racial status of a Title VII claimant is rarely contested. The crux of the matter is whether the employer has relied upon an individual s race -- be it, for example, White, African-American, Asian-American, American Indian, etc., or some mixed racial heritage -- in denying an employment opportunity to that individual. For obvious reasons, proving a claim of race discrimination is a difficult task. Employers rarely admit that they have relied upon race or color in making an employment decision. This leaves the aggrieved employee with two options. The employee can try to prove by indirect means that the employer actually relied upon race in taking adverse action against the employee. Or, the employee can try to show that the employment practice at issue was based on race-neutral criteria which adversely affect members of a racial group. In this chapter, we provide a brief overview of Title VII protections and discuss the ways in which an employee can prove a claim of race discrimination. A. Statutory Overview Title VII contains two provisions that broadly prohibit discrimination by employers. Section 703(a)(1) prohibits discrimination in hiring, termination, compensation, and other terms, conditions or privileges of employment. Section 703(a)(2) bars limiting, segregating, or classifying employees in any way which either adversely affects the employees status or deprives individuals of employment opportunities. In addition to these broad prohibitions, Title VII contains a number of specific provisions addressing particular factors or employment practices. For example, employment agencies, defined as persons and their agents who regularly undertak[e]... to procure employees for an employer, are prohibited from failing to refer applicants or otherwise discriminate against applicants or limit their employment opportunities due to their race. (Section 703(b)). Section 703(c) of the Act prohibits various forms of A - 8

9 discrimination by labor unions, while Section 703(d) forbids discrimination in apprenticeship and training programs. Section 704(b) prohibits employment advertisements which specify the race, color, or any other prohibited criteria for successful applicants for the position. Title VII also prohibits employers from retaliating against an employee who has either participated in an investigation or other proceeding investigating employment discrimination, or who has opposed discriminatory practices (Section 704(a)). When an employee participates in a Title VII proceeding (e.g., files a charge of race discrimination with the EEOC or provides information as a witness in an EEOC investigation), the employee is absolutely protected from retaliation. When an employee opposes an employment practice generally (but does not file a charge, file a lawsuit, or otherwise participate in a Title VII proceeding), the employee is protected if the employee has a reasonable and good faith belief that discrimination occurred. The practice being opposed need not be found by the EEOC or a court to be actual discrimination. Employers should be particularly attentive to the issue of retaliation. Even if the underlying charge of race discrimination turns out to be unsubstantiated, the employer may violate the law if it takes some action against the employee because of the filing of the charge. It is essential to the enforcement of Title VII that employees feel free to complain of what they perceive as unlawful discrimination. Finally, Title VII claims give rise to various forms of relief. When an individual proves a claim of unlawful discrimination, the individual is presumptively entitled to back pay, for example, for any period of time that the individual was not working as a result of the employer s discriminatory act. Note that the Supreme Court has barred back pay awards to undocumented workers for any period following the termination of his or her employment. Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002). However, the Supreme Court in no way calls into question the settled principle that undocumented workers are covered by the federal A - 9

10 employment discrimination statutes. The extent to which an employer might be subject to monetary penalties other than back pay for discrimination against an undocumented worker is not settled. The individual may also recover other forms of compensatory damages (e.g., damages for emotional distress), as well as punitive damages, which are designed to punish the employer for its wrongful conduct. 2 A court may also award injunctive relief against the employer as a means of deterring future acts of discrimination. Injunctive relief can include such things as requiring additional training on the prohibitions of Title VII, mandating changes in the employer s decision-making processes, and also reinstatement for the individual. B. Disparate Treatment It is simple enough to say what Title VII prohibits. The question is how these provisions play out in actual cases, where some adverse employment action is taken by an employer and the employee alleges that the action is based on race. To help resolve disputes of this nature, courts have adopted two evidentiary theories. The first of these is termed disparate treatment. Disparate treatment means intentional discrimination -- the employer deliberately acted in a way that disfavored an individual because of his or her race or color. This does not mean that an employee must actually prove that the employer acted with an evil purpose. The employee need only prove that race was a motivating factor in the decisional process. Occasionally, the facts directly show an intent to discriminate (e.g., the 2 Title VII imposes caps on the amount of certain types of compensatory and punitive damages that can be awarded. For the largest employers (those with more than 500 employees), the cap is $300,000. For the smallest employers (those with fewer than 101 employees), the cap is $50,000. However, compensatory and punitive damages can also be awarded under the post- Civil War era statute, 42 U.S.C. 1981, mentioned in the introduction to Part I of this book. There are no statutory limits on damages awarded under Section A - 10

11 employer admits that a decision was based on race or color). However, such cases are rare. More often, intent to discriminate has to be inferred from the facts. The courts have developed an order of proof, often referred to as the McDonnell-Douglas burden shifting scheme, to determine whether the facts give rise to such an inference. 3 The McDonnell-Douglas test says, in essence, that the person claiming discrimination must show that he or she was a member of a protected class (such as American Indian), and was treated differently than similarly situated persons of different backgrounds. If the claimant can show all this, he or she is said to have demonstrated a prima facie case that discrimination more likely than not occurred. This test has been adapted to many different employment situations, such as hiring, discharge, promotion and discipline. The prima facie case serves to eliminate the most common explanations for the contested action. Once the employee demonstrates a prima facie case, the employer may offer a legitimate, non-discriminatory reason for its actions. For example, an employer could assert that the different treatment was required because of a difference in seniority. (See Chapter 5 for more discussion on the use of seniority.) After the employer articulates a non-discriminatory reason, the employee once again may show that it was discrimination which motivated the employment decision. In the example above, the employee can show that a difference in seniority has never been used. At all times, the burden of proof remains with the employee. The McDonnell-Douglas standard places the onus on an employer to proffer some reason for its employment action. It is not difficult for an employee to make out a prima facie case. If the employee does so and the employer offers no explanation for its decision, the employer is liable under Title VII (on the assumption that, with no explanation forthcoming from the 3 This burden-shifting framework is derived from the Supreme Court s decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A - 11

12 employer, race was a motivating factor in the decision). If the employer offers some explanation for the decision, the question becomes whether that explanation is credible. Where it is, the employer has a chance of prevailing under Title VII. Where, on the other hand, the employer s explanation does not appear credible, the employer runs the risk of being held liable under Title VII. An employer is not automatically liable under Title VII merely because the employer s explanation is not credible. Nevertheless, the law permits a jury to conclude from that fact, coupled with the employee s prima facie case, that race was a motivating factor in the decision. EXAMPLE: Company A decides to discharge one of its employees, an American Indian. The company claims that the employee is being fired because of poor performance on the job. The evidence shows that the employee received several negative employment evaluations in the months preceding the termination. There is also evidence that the company warned the employee that he would be fired if his performance did not improve. There is no evidence that the employee is being held to some higher standard of performance than a similarlysituated employee of a different racial background. The company may prevail under Title VII. EXAMPLE: Company B decides to discharge one of its employees, an American Indian. The company claims that the employee is being fired for poor performance on the job. The evidence shows that the employee received favorable job ratings in the months preceding the termination. There is also evidence that a similarly situated White employee, in the same office, had received less favorable ratings but was retained. The employer s proffered explanation is not credible. The employee has a claim of race discrimination and may prevail under Title VII. A - 12

13 The McDonnell-Douglas standard is not the only method of proving race discrimination under a disparate treatment theory. An employee can also prove discrimination by more direct means (e.g., pointing to statements by company managers that reflect a racial bias). Rarely is there smoking gun evidence of race discrimination in the sense that a company decision maker expressly states that race was a motivating factor in the decision. On the other hand, there are cases in which one or more company officials have made racially discriminatory statements. The significance of these statements depends on the context. A racially biased statement is most probative where it is made in reference to the specific employment decision at issue by a manager who is involved in that decision. The statement is of marginal relevance when it is made by a non-decision maker, is not made in reference to the specific employment decision at issue, and is divorced in time from that decision. EXAMPLE: Company A decides to hire a new sales manager. The principal decision maker is the division head, John. John calls a meeting at which a decision is made to hire a White applicant for the position. Later, a manager confronts John. The manager believes that an African-American applicant was more qualified. The manager asks why the White candidate was hired. John responds, I don t think Blacks have the essentials for this kind of job. John s statement provides powerful evidence of race discrimination. The statement was made in reference to the specific employment decision at issue by an individual involved in that decision. EXAMPLE: Company B decides to hire a new sales manager. The principal decision maker is the division head, Michael. The company hires a White applicant. The other finalist for the job was an African- American. A month prior to the decision, Michael had been speaking to another company official concerning his general views on hiring. Michael remarked, You know, I don t think Blacks are really qualified for management positions. Michael s statement provides substantial support for a claim that race entered into the hiring A - 13

14 C. Adverse Impact decision. While not made in specific reference to that decision, the statement was made close in time to the decision by an individual involved in the decision. The statement, moreover, reflected Michael s attitudes about hiring African-Americans. It can be reasonably inferred that those same attitudes infected Michael s decision, one month later, to select the White applicant over the African-American applicant. EXAMPLE: Company C decides to hire a new sales manager. The Company hires a White applicant. The other finalist for the job is an African-American. A year prior to the decision, a company official had used a racial epithet in the workplace. That official, however, was not involved in the hiring decision at issue. The racial epithet is minimally relevant, if at all, to any claim of race discrimination in the hiring decision. The official using the epithet was not involved in the hiring decision and he uttered it a year prior to the decision. Another method of demonstrating discrimination can be used when employers do not necessarily intend to exclude people of a particular race or color, but they engage in practices that have the effect of doing so. This form of discrimination is known as disparate -- or adverse -- impact. 1. Determining Adverse Impact The first step in a disparate impact situation is to assess whether a particular employment practice disproportionately excludes members of a protected racial group. This will typically be done with statistics that compare the rate at which protected group members are excluded by the employer s practice, as compared to the rate at which nongroup members are excluded. In a court case, it is the person challenging the practice who must prove that is has adverse impact. A - 14

15 The disparate impact theory can best be explained in the context of an employer s use of selection procedures such as written tests, oral examinations, and interviews. Selection procedures may be used for any employment decision, including hiring, promotion, demotion, referral, or layoff. When a selection procedure results in a disparate impact against a race or color group, the employer is required to demonstrate that the selection procedure is job-related and consistent with business necessity. Guidelines adopted by EEOC and other federal agencies require that employers keep records to determine whether selection procedures for each job have an adverse impact. The guidelines also set forth a rough rule of thumb, called the four-fifths rule, for assessing impact. The Guidelines were adopted more than twenty years ago. Today courts use much more sophisticated statistical measures to determine whether an employment practice has a disparate impact. Software is available to enable employers to apply court-sanctioned statistical measures. Only an analysis based on those formulas will determine whether a practice has an unlawfully adverse impact. However, as an initial cut, to get a ballpark idea of whether a practice may be problematic, you can use the four-fifths rule. Four-Fifths Rule A selection rate for any racial group which is less than four-fifths (or 80 percent) of the rate for the group with the highest rate of selection will generally be regarded as evidence of adverse impact. What does this mean in practice? Suppose that 12 out of 48, or 25% of African American candidates satisfy an employer s educational requirements for a particular position, and the ratios of whites who meet the requirements is 15 out of 25, or 60%. The selection rate for A - 15

16 African Americans is less than 80% of the selection rate for whites (25 60 = 41), which may constitute evidence of adverse impact. Note that the 4/5 rule is only a rule of thumb -- lesser disparities can also be found to have an adverse impact, and greater disparities might not. Nonetheless, if an employment practice does violate the 4/5 rule, it may well be found to have an adverse impact. 2. Justification for Practices that Have Adverse Impact What happens if adverse impact is found? The employment practice is not automatically invalidated. Rather, the employer has an opportunity to prove that the policy is job related and consistent with business necessity. The meaning of this language is currently being developed in court cases. What an employer has to show depends on the particular facts of each case, including the nature of the practice and the functions of the job for which the practice is used as a selection standard. Some general points include the following: 1. Courts have also accepted as proof of business necessity evidence that the measures are necessary to ensure worker safety. Thus, a court upheld a fire department s no beards rule based on the department s showing that firefighters must be clean-shaven in order to wear the respirators required to be able to breathe in smoke-filled environments. 2. On the other hand, customer preferences that do not relate to a person s ability to perform his job would not amount to business necessity. Thus, a court rejected a no beards rule that was adopted based simply on the employer s belief that its customers preferred to deal with clean-shaven delivery people. A - 16

17 3. EEOC s guidelines provide that tests and other scored selection procedures should generally be validated -- which is to say, analyzed under various technical standards to assess whether they accurately measure skills that are necessary for job performance. How might this standard play out in the following scenario? EXAMPLE: The Supercars Company requires each new employee for an assembly line job to have a high school diploma. Al Mechanic applies for a job but is rejected because he lacks a diploma. Mechanic, who is African American, feels he is qualified for the job because he has worked on the assembly line for Wondercars, one of Supercars competitors, for the last three years. Mechanic files a charge with the EEOC, asserting that Supercars diploma requirement is discriminatory because it disqualifies more African Americans than whites. Assuming the requirement has adverse impact, Supercars might try to prove that there is a direct correlation between graduation from high school and performance on the job, and might try to show that those with high school degrees consistently get better performance evaluations or that high schools require courses in auto mechanics that teach skills specifically required for these jobs. Whether those arguments would be successful would depend on the particular facts of the case. Note that whatever the basis for its claim of business necessity, an employer must prove that its policy is justified. In the Scenario, therefore, Supercars could not rely on subjective beliefs or speculation. Rather, claims that the practice is related to job performance would have to be documented, for instance by studies, expert testimony or proof of its prior results. A - 17

18 3. Alternatives with Less Adverse Impact If Supercars cannot prove that its practice is justified, then Mechanic will win. Even if Supercars shows business necessity, Mechanic can still prevail if he can show that there are alternatives with less adverse impact that will serve Supercars legitimate business goals as well, and Supercars refuses to adopt them. In the example, alternatives might include giving a validated test to applicants that directly measures the ability to perform specific job tasks; using experience as a substitute for education; or simply asking for proof of completion of particular auto mechanics courses, regardless of whether the applicant has a high school diploma. Again whether these would be viable alternatives would depend on numerous factors, including the extent to which the measures would have less of an adverse impact and would produce an equally qualified workforce. 4. Harassment Harassment of an individual on the basis of race, color, sex, national origin, or religion is a discriminatory practice under Title VII. Although much attention has been given in recent years to sexual harassment discrimination, it is important to stress that many of the same principles apply to harassment based on race or color, and that an employer should be equally vigilant in preventing such harassment. A - 18

19 Key Points to Remember Title VII prohibits discrimination in hiring, termination, and other forms of discrimination, including in compensation, and terms, conditions or privileges of employment. Title VII also prohibits employers from retaliating against an employee who has either participated in an 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 was a motivating factor 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 where 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 and the employer refuses to adopt it. A - 19

20 CHAPTER 3 - THE NATURE OF RACE DISCRIMINATION In this chapter, we discuss the nature of race discrimination, focusing on the less obvious ways in which race can influence employment decision making. A. Racial Stereotyping, Subtle Racial Bias, and Code Words In a typical case, race discrimination occurs when an employer 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-Americans, 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 hires the second candidate, relying upon its stereotypical view that only subservient African-Americans can be trusted. The employer has engaged in unlawful discrimination under Title VII. A - 20

21 An employer violates Title VII even when it discriminates against some but not all, members of the same protected group. The Supreme Court has made clear that Title VII protects every individual from employment discrimination. 4 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 member of 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 is a motivating factor 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 of the same racial group as the aggrieved employee. EXAMPLE: A production company wishes to hire an individual to serve as an employee benefits specialist. 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 are unlawful. The fact that the company s decision-maker was not subjectively motivated by a bias against African-Americans is irrelevant. 4 See, e.g., Connecticut v. Teal, 457 U.S. 440, (1982). A - 21

22 Because of the sometimes subtle ways in which racial attitudes are expressed or acted upon, courts have been sensitive to the type of evidence that can support a claim of race discrimination, including the use of racial code words. There is no laundry list of racial code words that can support a Title VII claim of race discrimination. Of course, there are some words or phrases that have such an obvious connection to race that the use of the racially suggestive slur, in connection with an individual s employment, will support an inference of race discrimination. Thus, courts have inferred race discrimination from the use of the terms Buckwheat, spooks, boy, and tight eye (in the case of a race claim based on Asian ancestry). Depending on the context, seemingly innocuous phrases can take on a racial connotation. In one reported case, a court held that a claim of racial harassment was supported by such inherently racist remarks as another one, one of them, that one in there, and all of you. 5 The key is that these statements were repeatedly made by White managers in reference to African-American employees. While Title VII does not contain any blanket prohibition against the use of racially discriminatory language in the workplace, the use of such language 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. (See Chapter 6 for more discussion on racial harassment.) Race based comments or slurs also become relevant if the employer 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. 5 Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996). A - 22

23 Of course, one person s code word can be another s legitimate nondiscriminatory explanation. An employer, for example, might reject an African-American candidate for a job, stating that he is slow or lazy. An employer is entitled to reject a candidate for lacking a work ethic. The problem is that the employer may be doing so in a discriminatory way. The employer, for example, may be simply assuming that the candidate suffers from these performance problems because of his racial status. Ultimately, the impact of these kinds of code words -- those focusing on the supposed performance deficiencies of the employee -- turns largely on context. If there is evidence that an employer s explanation for an adverse employment action is not credible (the employer claims that a minority worker is slow or lazy when, in fact, there is abundant evidence that the employee is hard-working and conscientious), the use of the derogatory term could provide vital context for a claim of race discrimination. If, on the other hand, there appears to be grounds for believing that the individual in question suffers from precisely the performance deficiency referenced by the employer, the use of the derogatory term (assuming that it does not have an obvious connection to race) is unlikely to support a claim of race discrimination. An employer has a right to make employment decisions on the basis of the specific abilities of an individual candidate. What an employer may not do is reject an individual based on stereotypical assumptions about the ability or worth of members of a particular racial group. B. Intersectional Discrimination 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. A - 23

24 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. The Asian-American woman may have been subjected to stereotypes and targeted for discrimination not because she is a woman or Asian-American but, rather, because she is 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, an African-American woman could bring multiple claims of discrimination alleging both race and gender discrimination independently. This differs from the intersectional discrimination claim where the individual asserts a single claim that the employer has taken some adverse action based on the combination of prohibited characteristics. EXAMPLE: Aaron is an African-American male who works for a publishing company. He is in an entry level position and his responsibilities include setting up computers and phone lines. Aaron has repeatedly requested training that would place him on the promotion certification list for a computer analyst position. His requests have been denied by his office manager. Women of color and White and Asian American men, many with shorter tenures than Aaron, have received the training and been placed on the promotion list. Aaron s office manager has made statements to other managers A - 24

25 which reveal that he feels threatened by an African-American male moving up in the firm and simply feels that Aaron is not suited to more challenging work. It is possible in this case that the manager is blocking Aaron s opportunities for advancement based on prejudices he holds toward African-American men. If so, the discrimination would be based on the intersection of Aaron s race and gender. C. Race-Based Favoritism Impermissible consideration of race can also enter the workplace by way of race-based favoritism. When such favoritism causes a person to act in a way that disadvantages an individual of another racial group, unlawful racial discrimination may have taken place. For example, a person may provide access to various resources, e.g., information, mentoring programs, promotional opportunities, training, etc., to those individuals who share his or her racial background. When such favoritism deprives members of other racial groups of terms, conditions or privileges of employment, Title VII has been violated. Through proper training and education in the workplace, employers can increase staff awareness and sensitivity to this issue as well as minimize the risk of violating equal employment opportunity laws. D. Associational Discrimination The law also prohibits discrimination against individuals because of their association with members of a particular race. Specifically, an employer may not discriminate against an individual because of the race of the people the individual associates with in his or her family, professional, social or other circles. 6 6 See, e.g., Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, , (6 th Cir. 1999) (valid race discrimination claim stated where White plaintiff alleged he was discharged because he has a biracial child); Deffenbaugh- Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, (5 th Cir. 1998) (holding that Title VII prohibits discrimination in employment premised on an interracial relationship ), opinion reinstated in part, 182 F.3d 333 (5 th Cir. 1999) (en banc); Parr v. Woodmen of the World Life A - 25

26 Because the purpose of Title VII is to create a work environment that is free of any racial taint, an employer that allows race to enter into its employment decision-making, through an employee s association with members of a particular race, violates Title VII. EXAMPLE: For six months, William, who is White, has worked at a car dealership, receiving praise from his supervisor Scott (who also is White) for his job performance. William s family then visits him at work, at which time Scott learns that William s spouse is African- American. Two weeks later, William overhears Scott worrying that the dealership s image will suffer if the public learns of William s interracial marriage. Later that month, Scott fires William. If the discharge was motivated, at least in part, by William s interracial marriage, Scott has discriminated against William based on race, and the dealership has violated the law. Insurance Co., 791 F.2d 888, (11 th Cir. 1986) (holding that the plaintiff could state a valid Title VII claim by alleging discrimination based on his interracial marriage); Whitney v. Greater N.Y. Corp. of Seventh-Day Adventists, 401 F. Supp. 1363, 1366 (S.D. N.Y. 1975) (holding that a White plaintiff, who alleged she was fired because of her friendship with a Black man, could maintain her lawsuit under Title VII). A - 26

27 Key Points to Remember Race discrimination is not limited to cases in which an employer rejects all members of a racial group. An employer engages in unlawful discrimination if it draws a distinction between or among members of a protected group, based on a racial stereotype. If race is a motivating factor in the decision-making process, the employment decision is the product of impermissible race discrimination, regardless of whether the decision-maker holds hostile discriminatory attitudes about members of the protected racial group. The use of racial code words can support a claim of race discrimination. Intersectional discrimination is discrimination based on a combination, or intersection, of two or more prohibited bases. Intersectional discrimination often arises out of stereotypes specific to particular intersected groups, such as women of color, African-American men, and racial minorities with disabilities. Race discrimination may be the product of cultural differences or ethnocentric tendencies that cause a person to act in a way that disadvantages an individual of another racial group. Title VII prohibits discrimination against individuals because of their association with members of a particular race. A - 27

28 PART II Part II of this overview takes the lessons learned in Part I and applies them in specific employment contexts. In Part I, for example, there is a discussion of the theory of disparate impact discrimination. In Part II, we see how that theory operates in the context of such specific employment practices as word of mouth recruitment, appearance standards, and non-job-related educational requirements. In Part I, we learned about the sometimes subtle ways in which race can influence decision-making. In Part II, we see how this can occur in a real-world context, where, for example, the employer uses subjective selection criteria that leave individual managers with unfettered discretion in making employment decisions, or where the employer assigns work in a way that leads to a form of racial tracking that deprives racial minorities of the more valued employment opportunities. Lastly, we look at the work environment and racial harassment. Hopefully, by viewing these matters in a more concrete context, the reader will have a clearer idea of the practical operation of Title VII s prohibitions. A - 28

29 CHAPTER 4 - RECRUITMENT The methods an employer adopts to find qualified job applicants to apply for job openings can have a profound effect on the composition of its work force. While achieving racial diversity in the work force is not a requirement of Title VII, the absence of diversity, or the disproportionate selection of members of one racial group, may be an indication that there is some form of bias in the employer s methods of attracting job applicants (assuming there is no overt intent to discriminate in the hiring process or selection criteria themselves). Obviously, an employer may not discriminatorily prevent individuals of particular racial groups from applying for jobs, for example by refusing to give applications to certain walk-in applicants, or by announcing or advertising openings in an intentionally discriminatory way (e.g., Blacks need not apply). For our purposes, we are more concerned with discussing the potentially discriminatory effects of word of mouth recruiting -- a common method of recruiting job applicants that employers may not realize could have a discriminatory effect on certain racial minorities. Word of mouth recruitment is simply the practice of giving information about job vacancies to incumbent employees and telling them to spread the word to their friends. Employers may not explicitly tell their employees to spread the word, but reasonably rely on them to do so. If this recruitment practice is challenged under Title VII, it can be analyzed under either a disparate treatment or disparate impact theory. (See Chapter 2 for discussion of these theories.) In such a case, the disappointed applicant will present statistics comparing the percentage of his/her racial group in the employer s applicant pool with the percentage of his/her racial group in the relevant labor market. The disappointed applicant will argue that a statistically significant disparity is evidence of discriminatory recruitment that was either intended to exclude his/her racial group from consideration 7 or that had that effect. 8 7 See Domingo v. New England Fish Co., 727 F.2d 1429, modified on other grounds, 742 F.2d 520 (9 th Cir. 1984) (reliance on word of mouth recruitment through a predominantly White work force was evidence supporting a finding of disparate treatment); Barnett v. W.T. Grant Co., 518 F.2d 543, 549 (4 th Cir. 1975) (company s use of word of mouth A - 29

30 The reason word of mouth recruitment is considered problematic in such a situation is that families and social circles in our society tend not to be racially diverse, making it likely that individuals will refer members of their own racial backgrounds for jobs. Employers should be cautious in relying heavily on word of mouth recruitment, especially if they already have a work force that is predominantly of one race. If a work force has a significant under-representation of racial minorities, the referral of the White friends of White incumbent employees will create an applicant pool that is not necessarily reflective of the actual availability of qualified applicants of other racial groups. The courts have condemned such a practice, characterizing it as a perpetuation of the, often times, all-white composition of the work force. Further, when an employer consciously and deliberately relies exclusively on word of mouth recruitment when it has few members of racial minority groups in its work force, courts may regard that as evidence of an intent to discriminate against racial minorities, rather than the use of a neutral practice. 9 hiring which tended to perpetuate the all-white composition of the work force could buttress statistical evidence suggesting a pattern or practice of disparate treatment ). 8 See United States v. Georgia Power Co. 474 F.2d 906 (5 th Cir. 1973) (a facially neutral word of mouth recruitment practice operates as a built-in-headwind to Blacks because they are isolated from the web of information which flows around opportunities at the company, and no business necessity compels the company to continue to rely so heavily on this technique). At least one court has decided that an employer s passive reliance on word of mouth recruitment does not constitute an intentional act for purposes of disparate treatment analysis, or even a neutral practice for purposes of disparate impact analysis. See EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292 (7 th Cir. 1991). This is neither the prevailing view in the courts nor is it the Commission s view. 9 For example, in EEOC v. Metal Service Co., 892 F.2d 341, (3rd Cir. 1990), the Third Circuit explained that word of mouth hiring practices that carry forward racial imbalances contribute to an inference of discriminatory treatment of minority applicants. See also Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 427 (8 th Cir. 1970). A - 30