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EEOC Offers Guidance On Subtle Forms of Race and Color Discrimination

Volume 5, Issue 13
October 10, 2006

The Equal Employment Opportunity Commission ("EEOC") has issued a revised section of its Compliance Manual and an article entitled Questions and Answers About Race and Color Discrimination in Employment. The revised Manual discusses in detail all aspects of race and color discrimination and harassment and includes sections on investigations, recruitment, hiring and promotions, employer liability, and "best practices." As such, it is a good resource for those who apply and train on harassment and discrimination policies. What is particularly significant, however, about the issuance of these new documents is the Commission's desire to highlight how Title VII of the Civil Rights Act applies to a wide range of contemporary issues, such as cultural discrimination and discrimination based upon skin tone.

The Commission recognizes that Title VII does not define the term "race." While the EEOC has similarly refrained from adopting a definition, it does use specific racial categories: American Indian or Alaskan Native; Asian; Black or African American; Native Hawaiian or other Pacific Islander; White; and Hispanic or Latino. The Commission stresses, however, that discrimination and harassment does not simply encompass these categories, and that employers should also be considering more subtle issues such as: 1) ancestry; 2) physical characteristics (skin color, hair and facial features); 3) race-linked illnesses (e.g., sickle cell anemia); and 4) culture, such as a person's name, cultural dress, or manner of speech. Moreover, the Commission explains that race discrimination and harassment can entail conduct based upon: 1) perception of race (even if the perception is wrong); 2) association, such as discriminating against a Caucasian woman because she is married to an African American man or has a multi-racial child; and 3) subgroup, which would include, for example, rejecting an African American woman with preschool-age children, while not rejecting other women with preschool-age children.

The Commission explains that color discrimination occurs when a person is discriminated against based on his/her skin pigmentation, 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, it is unlawful for an African-American employer to discriminate against other African-Americans by refusing to hire those whose skin is either darker or lighter than his own.

The revised Manual is instructive and serves as an excellent source for training materials on the more subtle forms of race and color discrimination. Moreover, in applying harassment and discrimination policies, it is important to be cognizant of the types of claims which the EEOC may find meritorious and the practices which the EEOC supports.

The EEOC Compliance Manual Section can be found at http://www.eeoc.gov/policy/docs/race-color.html. The Questions and Answers can be found at http://www.eeoc.gov/policy/docs/qanda_race_color.html.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.