Who, What, Why . . .

Who does it apply to: The law applies to all employers regardless of size.

What is the issue: The Civil Rights Act of 1866 was passed to prohibit racial discrimination in contracts of employment and applies to all employers. The Act was later codified under Section 42 USC § 1981. Title VII was passed in the 1960s to protect against discrimination based on race, color, religion, sex or national origin by employers with 15 or more employees.

What am I required to do: Employers are required not to discriminate against employees on the basis of race or color. More specifically, employers are required not to treat an employee adversely with any consideration of his or her race or color in relationship to any significant aspect of employment.

What constitutes a violation: There are two kinds of violations – direct mistreatment and disparate impact. Direct mistreatment is straightforward. If an employer affirmatively mistreats an employee because of race or color by failing to hire, firing, demoting, or any other type of significant slight someone might dream up, it can be actionable as race or color discrimination.

Disparate impact is more subtle. If an employer creates a policy that is neutral or non-discriminatory on its face, that policy might have a consequence of negatively impacting workers of one race or color more significantly than others. If an employer institutes a policy that its employees must be clean shaven, the policy itself does not seem discriminatory because it may affect any applicant. That said, a lot of Black people have a skin condition that makes it difficult for them to shave and hence the rule has an adverse effect on Black applicants. This facially (no pun intended!) neutral rule has a disparate impact against Black applicants and may create a claim.

What counts as a race or color: Under Title VII, race and color include what most people think of differences based on race or color and may include Black, Hispanic, Indian (both kinds), etc. It even includes White, though many people mistakenly perceive that Whites are unprotected under the law. Under § 1981, “race” is more broadly defined than color and can include ancestry or ethnicity.

What if my employee violates without consent: Choose carefully who you place in charge. Employees placed in positions of authority with the power to control the circumstances of other employees are not personally liable. Their liability is placed with the employer even if the employee acts without authority. The same is true of independent contractors placed in positions of authority over employees.

What if race or color is a requirement of the job: Race or color cannot be a condition of a job. The Bona Fide Occupational Qualification (BFOQ) concept does not apply to race and color. Even stereotyping for language by race and color is problematic. There are plenty of Whites, Blacks, Asians and Hispanics that speak, say, . . . Farsi.

Can retaliation play a part: Title VII protects employees who engage in protected activities such as supporting another employee’s claim of discrimination, resisting instruction to discriminate, and filing a complaint about discrimination with the employer or the EEOC. Employers cannot negatively impact a significant aspect of employment for an employee who supports another’s race or color or their complaint of discrimination. Employers also cannot retaliate against an employee for complaining of race or color discrimination or making a charge of race or color discrimination with the EEOC.

What about harassment: Even if an employer does not discriminate against an employee directly, the employer may be liable if its employees harass an employee about his or her race or color.

Common Situations:

No criminals here: SuperSoda, a mega soft drink company, has a policy that it will not hire anyone who has ever been arrested. The EEOC gets wind of the policy and decides to make an example out of SuperSoda. It sues the company on the basis that a disproportionate number of Blacks and Hispanics have histories of arrests to other races and colors. Is the EEOC right? I don’t particularly think it is right to tell employers they cannot exclude for arrest records, but Pepsi Co. found out otherwise when they were audited under the same circumstances. The EEOC takes the position that an arrest is not a conviction and should not be used as a factor to weed out applicants. Only applicants who have criminal histories should be excluded, and then, only when it is particularly relevant to the job at issue. See the Employer Handbook edition on Discriminatory Use of Background Checks for more information on this topic.

Over his head: Danny is a Hispanic gentleman who was hired at SuperSoda to act as a purchasing manager by another Hispanic person, Joe. Joe did not do a very thorough job of screening or even interviewing applicants and Danny is not even close to being qualified for his job. While he works with Joe, Danny’s poor performance is covered by Joe’s unwillingness to confront Danny as a fellow Hispanic. Joe is a non-confrontational person who gives Danny above average ratings that he knows Danny does not deserve. Later, Joe leaves SuperSoda to pursue a musical
career after succeeding on an audition for the television program, American Super Singer. Danny’s new supervisor, Frank, quickly discovers Danny’s inadequacy and begins counseling Danny to improve. Danny is passed over for a promotion when a new position is created under Frank, and Danny brings a claim. Is he right? Does SuperSoda have a chance? Certainly SuperSoda has a chance, but Joe’s reluctance to confront Danny has done nothing to help the company. This is why it is important to supervise the supervisors with the conduct reviews to make sure they are not giving people a pass and understand the dangers if they do so. There are few supervisors confrontational enough to be truly honest in reviews. Most of us confrontational types are lawyers!

Pay attention to listeners: Megan, a Black woman, works for Manly Manufacturing. Two Manly employees, Josh and Tim, who are both also Black, sometimes use racially charged words to poke fun at each other. Neither is offended by the other. They are just joking around. Manly’s management takes no issue with it, thinking Josh and Tim are both Black so there can be no discrimination. Megan hears the barbs regularly and takes great offense based on stories of discrimination told by her father. She complains to management, but the company takes no action because the comments are not directed at her personally. Problem? Of course. Manly needs to think not just of the individuals involved (who could tire of the jokes and make their own claim), but also of those in ear-shot. Megan has a claim for race discrimination by harassment against Manly, and Josh and Tim have no worries since they are just employees.

What Should I Do:

Good: Even though other discrimination laws do not come into play until 15 or 20 employees, consider implementing an antidiscrimination policy including race and color discrimination right from the start.

Better: In addition to developing a policy, control who is permitted to interview and make material decisions about employees to be sure they are aware of the concerns of race, color and other discrimination.

Best: In addition to the items above, create job descriptions for each position. Use the job descriptions to prepare advertisements for positions, to ask objective interview questions, and to create a uniform and objective performance review system to avoid accidentally discriminating against someone based on race or color.