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1. Chapter 5
Race and Color Discrimination
Employment Law for BUSINESSsixth edition
Dawn D. BENNETT-ALEXANDER and Laura P. HARTMAN
McGraw-Hill/Irwin
Copyright 2009 by The McGraw-Hill Companies, Inc. All rights
reserved.
2. Statutory Basis
It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individuals race, color . . . or
(2) to limit, segregate, or classify his employees or applicants
for employment in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise adversely
affect his status as an employee, because of such individuals race,
color . . . Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. 2000e-2(a).
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3. Surprised?
Race is the first of the prohibited categories in Title VII.
A 2004 Gallup poll found that:
76 percent of whites, including 9 out of 10 under 30, thought
blacks were now being treated fairly or somewhat fairly
Only 38 percent of blacks thought so
Race discrimination claims, part of Title VII, have risen every
decade since the law was passed.
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4. Recognizing Race Discrimination
The latest EEOC statistics for FY 2006 indicated that race remains
the most frequent type of claim filed with the agency.
Of the total charges filed, 36 percent of them were based on
race.
Often employers do not realize their treatment of a particular race
is building a case of race discrimination for which they could
ultimately be liable.
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5. Who is protected under the law?
Title VII was enacted primarily in response to discrimination
against blacks in the country, but the act applies equally to
all.
Race discrimination may occur against any group and is equally
prohibited under Title VII.
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6. What is Race Discrimination?
Treating individuals differently in their employment because of
their race, color, or ethnic origin.
Examples of potentially illegal race discrimination:
You apply for a job for which you have experience and excellent
qualifications, but you are not hired because some of the companys
long-time clients are not comfortable dealing with
African-Americans.
You are told that you are being laid off due to company cutback and
reorganization, while white employees with the same job and with
less seniority than you keep their jobs.
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7. Recognizing Race Discrimination
Intent may be established by direct evidence of discriminatory
treatment by the employer even when an employer may discriminate
for what it considers to be justifiable reasons. (3 tier
framework)
An employer who has not considered the issue of race may well
develop and implement policies that have a racially discriminatory
impact, without ever intending to do so.
See Dominos Pizza case on page 302 of your Text
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8. Can I be discriminated against because my spouse and friends
are of different races?
The law prohibits discrimination based on your marriage to or
association with someone of a different race; membership in or
association with ethnic-based organizations or groups; or
attendance or participation in schools or places of worship
generally associated with certain minority groups.
Example: If you are white (Caucasian) but your spouse and most of
your friends are African-American, you may not be discriminated
against because of your association with African-Americans, and may
have a valid discrimination claim if you can prove you were
discriminated against on this basis.
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9. Racial Harassment
Although Title VII does not specifically use the words racial
harassment, courts have held that racial harassment is a form of
race discrimination and thus violates the law.
To hold an employer liable for racial harassment, the employee must
show that the harassment was:
Unwelcome
Based on race
So severe or pervasive that it altered the conditions of employment
and created an abusive environment
There is a basis for imposing liability on the employer
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10. Racial Harassment (continued)
Example: One of your coworkers thinks its funny to use derogatory
words in conversation and to tell jokes insulting blacks, Latinos,
Asians, and other minorities; these comments make you very
uncomfortable, and youve asked him to stop, but he tells you that
you need to get a sense of humor; the boss tells you to ignore him,
but doesnt talk to or discipline your coworker for his harassing
behavior.
Racial harassment may also have as its basis the employer imposing
on the harassed employee different terms or conditions of
employment based on race.
An employers prompt response to harassment is important.
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11. A Word About Color
Color(pigmentation, complexion, or skin shade or tone) is one of
the five categories included in Title VII as a prohibited basis for
discrimination.
Example: it would be unlawful for an employer to discriminate
against dark or light-skinned African Americans.
Few cases have been brought using color as a basis for
discrimination.
Color discrimination can exist between persons of different races
or between persons of the same race.
National origin issues have recently been included under race
discrimination claims by the EEOC.
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12. Reconstruction Civil Rights Acts now codified in 42 U.S.C.
Section 1981, 1983, and 1985 (pre-Title VII laws)
Passed by Congress after the Civil War ended in 1865 in an effort
to provide a means of enforcing the new status of the ex-slaves as
free citizens.
Section 1981: prohibits discrimination on the basis of race in
making and enforcing contracts.
SeePatterson v. McLean Credit Union on p 308 of your text: Section
1981 does not permit actions for racial discrimination during the
performance of the contract, but only in making or enforcing the
contract
Section 1983: prohibits the denial of civil rights on the basis of
race by someone behaving as if they are acting on behalf of the
government (called under color of state law).
Section 1985: prohibits concerted activity to deny someone their
rights based on race (Ku Klux Klan Act).
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13. Management Tips
Believe that race discrimination occurs and be willing to
acknowledge it when it is alleged.
Make sure there is a top-down message that the workplace will not
tolerate race discrimination in any form.
Dont shy away from discussing race when the issues arises.
Provide a positive, non-threatening, constructive forum for the
discussion of racial issues.
Be aware of cultural differences that may be connected, at least in
part, on race, when doing things as simple as deciding how to
celebrate special events in the workplace.
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14. Management Tips (continued)
When an employee reports race discrimination, dont tell the
employee he or she must be mistaken.
Offer training in racial awareness and sensitivity.
Constantly monitor workplace hiring, termination, training,
promotion, raises, and discipline to ensure that they are fair and
even-handed.
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15. Summary
Title VII prohibits discrimination on the basis of race.
The employer must ensure that every employee has an equal
opportunity for employment and advancement in the workplace,
regardless of race.
Employers must be vigilant to guard against the more stubborn,
subtle manifestations of race discrimination.
Racial discrimination may be by way of disparate treatment or
disparate impact.
Disparate treatment may be shown by direct or indirect evidence of
discrimination.
Disparate impact may be more difficult to discern, so employers
need to closely scrutinize workplace policies and procedures to
prevent unintended disparate impact leading to liability.
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16. Summary (concluded)
Race can be used as a bona fide occupational qualification in very
limited circumstances, e.g. if a co. hires an actor to play the
role of an African-American father, being African-American is a
necessary part of the job, or a BFOQ. However, an employer who
claims a BFOQ exists for a particular job must be able to prove a
person of a certain race is required because a workers ability to
do the job is actually diminished if he or she is not a member of
that race.
Employers best approach to racial harassment is to maintain a
workplace in which such activity is not permitted or condoned in
any way, to take all racial harassment complaints seriously, and
take immediate corrective action, if necessary, after a prompt
investigation of a complaint.
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