6. What is discrimination on the basis of race or color under Title VII?
Discrimination on the basis of race or color may be intentional or as a result of policies with a disparate impact. Failing to hire, firing, or compensating individuals differently based upon race are obvious examples of intentional discriminatory treatment. Below are some less-obvious examples of discriminatory treatment with regard to employment benefits and characteristics:
• Discriminatory Language – Using or permitting employees to use racial insults in the workplace. This is similar to creating a hostile work environment for sex-based discrimination.
• Race-Based Scheduling – Scheduling individuals, giving individuals personal preference in work shifts, or maintaining all-black or all-white crews for no reason are examples of discrimination in employment characteristics.
• Accommodations – Providing better offices, workspace, housing, etc., for one race above another is discriminatory.
• Incentives – Providing greater compensation, employment benefits, performance or routine bonuses based upon race is discriminatory.
• Private Affirmative Action Programs – Private employers (not federal contractors) voluntarily adopt affirmative action programs. This often gives rise to reverse discrimination when minorities or women with lower qualifications or less seniority than white men are given preference in employment or training. To combat this issue, the EEOC issues guidelines for employers who set up affirmative action plans.
⁃ Note: Affirmative action is a federal program that applies to the Federal Government and federally contracting employers. This program puts requirements that the workforce demographic roughly represent the immediate population. There are no quotas for hiring and there is no mandate to hire any single individual. The 1991 Civil Rights Act amendments prohibit the setting of quotas in employment.
Employer conduct constituting discrimination based upon the impact upon the employee may be far less obvious than intentional forms of discrimination. Examples of discriminatory impact based upon employer policies potentially include:
• Personnel Tests – Using personnel tests that have no substantial relation to qualifications or duties of the job may have the effect of screening out minorities.
• Marital Status – Denying employment to unwed mothers may have a discriminatory impact when minorities have a statistically higher rate of single-parent births.
• Credit Scores – Refusing to hire individuals because of their poor credit rating may be discriminatory when minorities are disproportionately affected by poor or no credit history.
• Nepotism – Giving priority in hiring to relatives of present employees may be discriminatory when minorities are underrepresented in the workforce.
• Grooming Requirements – Some races may have different grooming practices as a result of medical conditions or physiological characteristics. If minorities are unduly affected by these standards, the policy could result in unequal and discriminatory employment conditions.
⁃ Example: African-American men often suffer from razor bumps when shaving too closely. An employer’s hiring policy of no facial hair may be discriminatory
Recall that there is no bona fide occupational qualification for intentional discrimination based upon race. There is, however, a business necessity defense for discriminatory impact claims.
• Discussion: Do you agree that the above-referenced employer actions and policies result in intentional or discrimination against employees based upon race? Why or why not? Are these laws adequate, over broad, or should they go farther to protect minority rights? What are the arguments for and against such protections?
• Practice Question: Winston is a single father. His dream is to join the state police force. The police force has a policy against hiring single parents. The objective of the policy is to protect family members in the event an officer falls in the line of duty. Across the United States, a significantly higher percentage of African-Americans are single parents. If Winston is denied employment based solely upon this policy, does he potentially have a cause of action against the police force?