New Guidance on Race Discrimination
The EEOC recently issued expanded policy guidance on the issues of race and color discrimination which plaintiffs’ attorneys are celebrating—indeed, the issuance of these new guidelines has fueled the fire, and plaintiffs’ attorneys are calling for more. The 55-page document updates a chapter in the EEOC’s Compliance Manual and provides an explanation of the legal standards for evaluating race discrimination claims in recruiting, hiring and promotion, and provides examples of “best practices” to reduce the likelihood that an employer will commit a Title VII violation. And although Title VII does not define race, this new EEOC document certainly does. I quote the definition in its entirety because some of it just can’t be paraphrased:
Title VII’s prohibition of race discrimination generally encompasses:
Ancestry: Employment discrimination because of racial or ethnic ancestry. Discrimination against a person because of his or her ancestry can violate Title VII’s prohibition against race discrimination. Note that there can be considerable overlap between “race” and “national origin,” but they are not identical. For example, discrimination against a Chinese American might be targeted at her Asian ancestry and not her Chinese national origin. In that case, she would have a claim of discrimination based on race, not national origin.
Physical Characteristics: Employment discrimination based on a person’s physical characteristics associated with race, such as a person’s color, hair, facial features, height and weight.
Race-linked Illness: Discrimination based on race-linked illnesses. For example, sickle cell anemia is a genetically-transmitted disease that affects primarily persons of African descent. Other diseases, while not linked directly to race or ethnicity, may nevertheless have a disproportionate impact. For example, Native Hawaiians have a disproportionately high incidence of diabetes. If the employer applies facially neutral standards to exclude treatment for conditions or risks that disproportionately affect employees on the basis of race or ethnicity, the employer must show that the standards are based on generally accepted medical criteria.
Culture: Employment discrimination because of cultural characteristics related to race or ethnicity. Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech. For example, an employment decision based on a person having a so-called “Black accent,” or “sounding White,” violates Title VII if the accent or manner of speech does not materially interfere with the ability to perform job duties.
Perception: Employment discrimination against an individual based on a belief that the individual is a member of a particular racial group, regardless of how the individual identifies himself. Discrimination against an individual based on a perception of his or her race violates Title VII even if that perception is wrong.
Association: Employment discrimination against an individual because of his/her association with someone of a particular race. For example, it is unlawful to discriminate against a White person because he or she is married to an African American or has a multiracial child, or because he or she maintains friendships or otherwise associates with persons of a certain race.
Subgroup or “Race Plus”: Title VII prohibits discrimination against a subgroup of persons in a racial group because they have certain attributes in addition to their race. Thus, for example, it would violate Title VII for an employer to reject Black women with preschool age children, while not rejecting other women with preschool age children.
“Reverse” Race Discrimination: Title VII prohibits race discrimination against all persons, including Caucasians.
The two categories that probably trouble me the most are “Culture” and “Perception,” because both have a high risk of abuse. With enough creativity, anything can be linked to “cultural characteristics,” and those individuals who couldn’t otherwise produce evidence of race discrimination now have a much broader playing field. Likewise “perception” essentially extends Title VII’s protection beyond those in a protected class. In other words, it no longer matters if the person really is in a protected category, as long as the employer thinks they were. An as if to validate my concerns, the EEOC itself noted that “everyone is protected from race and color discrimination” (my emphasis). I think I just heard the hinges squeak on Pandora’s Box.
The EEOC did not stop there, however, and defined “color discrimination” as “when a person is discriminated against based on skin pigmentation (lightness or darkness of the skin), complexion, shade or tone.” Again, it sounds to me like we are getting into very minute shades of grey, with a huge potential for abuse. But wait, there’s more: the EEOC also declared that color discrimination “can occur between persons of different races or ethnicities, or even between persons of the same race or ethnicity.” (Again, my emphasis).
Plaintiffs’ attorneys rejoiced (obviously) saying that the EEOC’s initiative “should reinvigorate” the enforcement and litigation efforts at the commission, and that the EEOC should go further and “exhibit bold and innovative leadership in its enforcement activity.” Yikes. Even the panel members of the EEOC unanimously agreed that more “outreach” programs to minority communities and their leadership is essential. I suppose the best thing for an employer to do at this point is to read the guidance document and go through it with a fine tooth comb to ensure that they are keeping up with the changes in the EEOC, lest you become the prime example of the EEOC’s “reinvigorated initiative.”