Legal Alert: EEOC Compliance Manual Emphasizes Subtle Forms of Discrimination Based on Race or Color

Date   Jun 8, 2006
The EEOC recently issued a new Compliance Manual Section with guidance for analyzing race and color discrimination claims under Title VII of the 1964 Civil Rights Act.
The EEOC recently issued a new Compliance Manual Section with guidance for analyzing race and color discrimination claims under Title VII of the 1964 Civil Rights Act. The guidance, which is 57 pages long, includes definitions of "race" and "color" as used under Title VII; a discussion of disparate treatment, disparate impact, and harassment based on race; information on what the Commission will look for in investigating race/color discrimination charges; and best practices recommendations for preventing race/color discrimination claims. The EEOC also issued a Question and Answer Fact Sheet containing a shorter summary of the principles set forth in the Compliance Manual Section. Since race discrimination charges comprised approximately 35% of the total charges processed by EEOC in 2005, employers should be aware of these new guidance tools utilized by the Commission.

Definitions of "Race" and "Color"

Title VII prohibits employers from making employment decisions based on, among other things, an individual's race or color. The statute does not specifically define "race"; however, the new Compliance Manual states that the statutory prohibition includes discrimination based on: ancestry, physical characteristics, race-linked illnesses, culture, perception, association, subgroup (or "race plus") and reverse race discrimination. Similarly, color discrimination includes discrimination based on pigmentation, complexion or skin shade or tone.

Disparate Treatment

Noting that the most evident example of race discrimination occurs when an employer makes a decision obviously motivated by racial animus (e.g., "I refuse to hire a black man for a job."), the guidance also cautions employers against using stereotypes or less conscious bias when making decisions and to refrain from utilizing statements that could reflect racial stereotyping and bias. For example, a hiring manager who rejects an applicant because she was looking for a "clean-cut image" or "soft skills" may be perceived as stereotyping along racial lines. In addition, the guidance reiterates that Title VII prohibits employers from making racially motivated decisions prompted by business concerns or negative reactions from clients, customers, or other employees. Finally, under no circumstances may race or color be justified as a bona fide occupational qualification under Title VII.
The guidance notes that the EEOC will consider the "overall workplace environment" when investigating race discrimination claims and lists the factors the Commission may consider in evaluating the environment.

Disparate Impact 

The guidance reminds employers that they may be liable for discrimination even in the absence of unlawful motive. Policies, practices or actions that have a disparate impact on members of a protected class also constitute discrimination. To determine the existence of disparate impact, the Commission examines criteria related to recruitment, hiring/promotions, and layoff/termination. In addition, appearance or grooming policies, along with education and experience requirements, can result in a disparate impact on employees.

To establish disparate impact claim under Title VII, the alleged disparate impact must be shown by statistical evidence. If a disparate impact is proven, the employer bears the burden of demonstrating that the policy or practice in question is job related for the position and consistent with business necessity. For example, an employer's no beard policy, while not facially discriminatory, may have a disproportionate adverse impact on black male employees, who are statistically more likely than their white counterparts to suffer from a skin condition caused by shaving.

Equal Access to Jobs

Title VII prohibits discrimination in the areas of recruiting, hiring and promotion. While most employers know they cannot use race or color as a job requirement in an advertisement for a job opening, the new guidance identifies more subtle actions that may also violate Title VII's race discrimination prohibition, such as:

  • Recruiting based solely on word-of-mouth referrals, if that method creates a limited applicant pool that does not include qualified diverse individuals.
  • Screening criteria that implicate race, such as a recruiter disqualifying candidates from specific neighborhoods in order to filter the applicant pool.
  • Recruiting exclusively from homogenous sources, i.e. predominately white or black schools or areas.

Although courts usually defer to an employer's business judgment in the context of hiring or promotion, the selection criteria utilized by the employer must be objective and consistently applied. This mandate applies to the employer's education requirements that are not directly related to the position at issue; employment testing (subjective personality tests or differences in scoring based on race); and conviction and arrest records (disqualifying a person of one race because of a felony conviction while retaining a person of another race with a similar record).

The guidance notes that employers who implement diversity strategies in an effort to achieve a more multicultural workplace, and those who wish to redress the historical wrongs of past discrimination by establishing affirmative action programs, must ensure that the programs adhere to the requirements of Title VII. The plans should not impose racial quotas or unnecessarily infringe on third party interests. Additionally, employers in the public sector should be aware that their affirmative action programs must comply with both Title VII and the Equal Protection Clause in the U.S. Constitution.

Equal Opportunity for Job Success 

The new guidance reiterates that employers may face liability if they neglect to ensure a harassment-free workplace for their employees. In this respect, the guidance mirrors the analytical framework previously developed for sexual harassment claims. Such liability may be incurred based on the conduct of a supervisor, co-workers, and even customers or business partners under the employer's control.
Race-based harassment occurs if: 1) the conduct is unwelcome, and 2) the conduct is sufficiently severe or pervasive to alter the terms and conditions of employment both in the mind of the victim and from the perspective of a reasonable person in the victim's position.
Conduct will be deemed unwelcome if the victim did not solicit the behavior and viewed it as offensive. This is an individualized, fact-based inquiry, since there may be a close question as to whether the conduct was unwelcome or merely "playful banter." Most importantly, EEOC investigators will consider the context in which the alleged harassment occurred. For example, a Japanese clerk whose co-workers subject her to Karate chops when they see her or intentionally mispronounce her name has experienced race-based harassment.

As noted above, policies imposing appearance and grooming standards must be neutral. Employers should note, however, that seemingly innocuous policies may violate the statute if not absolutely necessary for business purposes. For example, strict height and weight restrictions may adversely impact certain racial groups. Additionally, while employers may establish policies regulating hairstyles, such policies must be equitably enforced and should acknowledge differences in hair textures. As such, a rule prohibiting an "afro" style predominately worn by African-Americans would violate Title VII. Likewise, employers may establish dress codes for the workplace, as long as the code was not adopted for discriminatory reasons and treats all attire equally (i.e., an employer may not enforce a code banning only traditional Hawaiian dress).

Proactive Prevention

The EEOC also issued recommendations for proactive efforts to prevent Title VII violations and commit to diversity strategies in the workplace. The EEOC's list of the best practices is outlined below. Employers are advised to:

  • Implement a strong equal employment opportunity policy, emphasizing enforcement and accountability from all employees.
  • Document personnel decisions and retain employee records in accordance with applicable time periods.
  • Consider diverse candidates in the areas of recruitment, hiring and promotion.
  • Conduct internal reviews to ensure current practices minimize or eliminate disparate impact among employees.
  • Ensure job standards are applied objectively and consistently, and job openings are adequately communicated to all employees.
  • Incorporate a harassment policy that gives a specific explanation of prohibited conduct and grievance procedures available to employees, and ensures a swift, thorough investigation.

While the principles contained in the this race/color discrimination guidance are not news to most employers, the guidance provides insight into how the Commission will be assessing these claims, as well as some helpful examples of factual scenarios. The new Compliance Manual and Question and Answer Fact Sheet can be found at

If you have any questions regarding the Compliance Manual, please contact the Ford & Harrison attorney with whom you usually work or the author of this Alert, Alycia Carter, an associate in our Memphis office, at (901) 291-1575,