Race Discrimination and Racial Harassment
In 2008, nearly 34,000 race discrimination claims were filed with the Equal Employment Opportunity Commission (EEOC), making up more than 35% of the charges filed and is the most frequently alleged basis of employment discrimination under federal law. Many states also have laws prohibiting race discrimination in employment, as well. The two main federal laws regarding this are Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866.
In June 2009, the U.S. Supreme Court’s decision in the Ricci case in favor of white firefighters who sued the City of New Haven, Connecticut, for reverse race discrimination could have a huge effect on workplace discrimination and diversity issues. Even though the case involved public employers, it will most likely also affect private employers since Title VII covers both. Employers may need to reevaluate how and when they consider race in decisions regarding hiring and promotions. Some observers have speculated that by ruling against New Haven, the Supreme Court made it more difficult for other employers to challenge suspicious promotional test results in the future. Read more about the Ricci decision by the U.S. Supreme Court
Race Discrimination and Title VII
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, applies to employers that have at least 15 employees, as well as to state and local governments, employment agencies, labor organizations, and the federal government. Title VII generally prohibits the following types of race-based discrimination.
- Ancestry. For example, discrimination against all persons of Asian ancestry would violate Title VII.
- Physical characteristics associated with race. For example, discrimination based on an individual’s color, hair, facial features, height, or weight could violate Title VII if the characteristic on which the employer is discriminating is associated with a particular race.
- Race-linked illness. There are certain types of disease or illness that affect primarily persons of particular races. There are other diseases that aren’t directly linked to race or ethnicity but have a disproportionately high incidence in certain groups.
- Culture. Policies that discriminate based on cultural characteristics linked to race or ethnicity, such as a person’s name, cultural dress or grooming practices, accent, or manner of speech may be challenged.
- Perception. Title VII prohibits discrimination against an individual based on the belief or perception that a person is a member of a particular racial group.
- Association. Title VII also prohibits discrimination based on association with someone of a particular race, such as discrimination against a Caucasian who’s married to an African American or has a multiracial or biracial child.
- Subgroup or race plus another factor. Title VII prohibits conduct such as rejection of African-American women job applicants who have preschool-age children while not rejecting women of other races who have preschool-age children. In this example, the employer isn’t discriminating against all African Americans but is discriminating based on race within a certain subgroup of persons within that protected status.
- Reverse race discrimination. Title VII prohibits race discrimination against all persons, including Caucasians.
State-by-State Comparison of 50 Employment Laws in 50 States, including Title VII equivalents
Disparate-treatment and disparate-impact claims
There are two basic types of race and color discrimination claims under Title VII. Disparate-treatment discrimination occurs when race, color, or another protected trait is a motivating factor in how an individual is treated.
Disparate-impact discrimination occurs when a neutral policy or practice has a significant negative impact on one or more protected groups and either the policy or practice isn’t job-related and consistent with business necessity or there’s a less discriminatory alternative and the employer has refused to adopt it.
Race discrimination and Section 1981 of the Civil Rights Act of 1866
There are several gaps in the protective umbrella of Title VII. One of these areas involves the special case of independent contractors. Independent contractors, when correctly categorized as such, are not full employees and therefore not offered the same protections. An employer still can find herself in hot water, however, when her employees harass or discriminate against an independent contractor they work alongside. Section 1981 of the Civil Rights Act of 1866 protects minorities’ rights to enter contracts and by extension binds both parties to the contract to perform their end of the bargain without discrimination or harassment.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination
In a racial harassment scenario, the victim is targeted because of his race. Many racial harassment cases involve harassment by coworkers. A diligent employer needs to be aware of the potential for racial harassment and make sure that its policies are designed to prevent and correct any harassment.
An employer’s liability for harassment depends on whether the harasser was someone with authority over the employee or was a coworker and what the employer knew and did in response to the harassment. An employer also can be liable if a customer, vendor, or other nonemployee harasses an employee and the employer doesn’t take reasonable steps to prevent or correct it.
Employees also can allege same-race harassment. A black male can cause his company to be liable for harassing another black male on the basis of race. The bottom line is that you have a duty to prevent all kinds of harassment.
Affirmative-action programs may be implemented when, for example, there’s a need to eliminate a manifest imbalance in a traditionally segregated job category. Because affirmative-action and diversity programs carry a significant risk of reverse discrimination challenges, employers should exercise caution and consider consulting legal counsel before implementing such a program.