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5/25/2006 – By Lynn D. Lieber, Esq., Founder & CEO, Workplace Answers, Inc.

The EEOC recently issued comprehensive new guidelines as to what constitutes race and color discrimination under Title VII of the Civil Rights Act of 1964. The far-reaching guidance alerts employers to the complex and profound ways that racial and color-based bias and stereotyping can affect recruitment and hiring, as well as all terms and conditions of employment. The Commission notes that training and a review of recruitment and employment practices are key to avoiding liability and asserting an affirmative defense.

According to the Commission, race continues to be the leading charge of discrimination. Of the approximately 75,400 charges of discrimination filed with the EEOC in fiscal year 2005, 35.5% alleged racial discrimination. To counter "the racial and ethnic disparities [that] still exist in the labor market," the Commission provides guidance for employers on how to avoid race and color discrimination.

The EEOC emphasizes that discrimination can arise in insidious and subtle ways. The new guidelines place affirmative responsibilities on employers and supervisors regarding all types of discrimination. The Commission suggests reviewing hiring practices to ensure that recruiting is conducted in diverse applicant pools, not solely through "word of mouth." It also questions whether requiring a certain degree for a job tends to screen out individuals of certain races and national origins. Therefore, the Commission recommends that employers set such educational requirements only if they are truly necessary for performance of the job. The guidance even discusses how a lack of informal networking opportunities away from the office can be potentially discriminatory.

Expansive Definitions of "Race" and "Color" Discrimination
The guidance defines "race" discrimination very broadly to include illegal treatment based on physical characteristics associated with race -- such as hair, facial features, height, weight, body shape or type, a specific racial or ethnic hairstyle, lip size, eye shape and skin color.

Also included in this definition is discrimination based on ancestry, cultural characteristics (such as dress, grooming practices, accent, manner of speech), race-related illness, perception of an individual's race, association with someone of a particular race, "race plus" (another protected category) and "reverse" race discrimination.

The Commission defines "color" discrimination as illegal treatment based on an individual's skin pigmentation (lightness or darkness), complexion, shade or tone. Such discrimination can occur "between persons of different races or ethnicities or even between persons of the same race or ethnicity." Thus, a light-complexioned African American could claim to be treated discriminatorily by a brown-skinned African American supervisor, much as an employer's preference for light-skinned individuals over dark skinned employees would also be discriminatory.

In addition to defining "race" and "color" discrimination, the guidance describes what it refers to as "related protected bases" -- multiple protected bases of discrimination (national origin, religion) and "intersectional discrimination" �- which is discrimination based on more than one protected category, such as race and sex.

Subtle Racial Stereotyping and Bias Are Discriminatory
The Commission notes that Title VII prohibits not only intentional discrimination, but also practices that appear to be neutral, but limit employment opportunities for some racial groups. Intentional discrimination "includes not only racial animosity, but also conscious or unconscious stereotypes about the abilities, traits or performance of individuals of certain racial groups." Even comments by an interviewer -� like "We're looking for a clean-cut image," or "Because of our sophisticated upscale location, we need to look for certain 'soft skills,'" -� could be reflective of racial stereotyping or bias. The Commission warns employers to be alert for "code words" that are neutral on their face but convey a racial meaning in context.

Recruiting and Hiring Mandates
The EEOC guidelines instruct employers not to rely on "word of mouth" recruiting efforts that tend to seek candidates from homogeneous labor pools, but to take affirmative steps to ensure that hiring efforts are targeted at diverse populations. For example, an employer in a largely Caucasian community could be engaging in discriminatory hiring practices by recruiting only from within that community, without outreach into the larger metropolitan labor pool which may be predominantly African American.

The guidance also cautions employers against imposing their own, possibly overreaching criteria on candidates or positions. Such requirements, like possession of a certain educational degree or the absence of a criminal record, tend to screen out minority applicants and must be based strictly on business necessity rather than employer preference.

Can Failure to Socialize Outside of Work Be Discriminatory?
The guidelines reinforce the idea that discrimination can occur in any aspect of employment, including job assignments, performance evaluations, mentoring, training, informal networking, appearance and grooming standards and discipline and termination.

The Commission cites that it is illegal, for example, for an employer to assign African American and Asian salespeople to territories with high percentages of African American or Asian customers, in hopes that this practice will increase sales and benefit the employees' careers. Doing so actually violates Title VII, because the employer is depriving employees of opportunities by limiting, segregating or classifying them on the basis of race.

Making job assignments based on customer preference is not a defense for racial or color-based discrimination, even if the employer loses business by not following the customer's request. The guidelines refer to a home healthcare provider whose customers expressed the desire for Caucasian home health care aides. For the employer to abide by such a discriminatory preference is unlawful.

The Commission gives another example of an organization with an active networking culture, both during and after the workday. Failure of managers to invite certain employees to after-hours social events at the same time they invite others could be discrimination based on race or national origin, if the lack of networking opportunities affects the late- or uninvited individuals' terms and conditions of employment.

When a Single Incident Is Sufficiently Severe
The guidelines state that when conduct is racially derogatory in nature or involves racial mistreatment, welcomeness is irrelevant, even if the alleged harasser and victim are of the same race. A single extremely serious incident of harassment might be sufficient to violate Title VII, especially if it is a physical act, such as a depiction of a noose, a burning cross, a favorable reference to the Ku Klux Klan, the use of the "n" word or a racial comparison to an animal.

Proactive Prevention by Employers
The Commission makes it clear that it is insufficient for employers to merely recognize and put an end to racial and color-based harassment. Affirmative preventative action is imperative. Employers must carefully scrutinize their recruiting and hiring practices to ensure that they draw from a diverse labor pool and do not use job criteria that impermissibly screen out candidates of certain races, colors or national origins. Similarly, employers must be attuned to the subtle and unconscious ways that race and color stereotypes and bias can negatively affect all aspects of employment.

The Commission stresses that employers can avoid discrimination by engaging in all of the following: