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EEOC Issues Comprehensive Guidelines Regarding Race and Color Discrimination

By Richard I. Greenberg
  • May 4, 2006

In the face of a growing number of race and color discrimination charges, the Equal Employment Opportunity Commission recently issued new guidance as to what constitutes race and color discrimination under Title VII of the Civil Rights Act of 1964.

The 51-page compliance manual, released on April 19, 2006, provides guidance to employers on how to avoid race and color discrimination in employment under Title VII, including best practices for recruiting, hiring, promotion, and other employment decisions.  Along with the policy guidance, the EEOC issued a seven-page question and answer document summarizing the more detailed compliance guide.  The EEOC's issuance of these documents is timely, since charges of race discrimination continue to outpace other types of discrimination charges.  Of the approximately 75,400 charges of discrimination filed with EEOC field offices nationwide during the 2005 fiscal year, 35.5 percent alleged race-based discrimination.

Although Title VII does not define discrimination on the basis of race, the EEOC guide states that it includes "discrimination on the basis of ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features."  With regard to color, the EEOC explains that discrimination on the basis of skin pigmentation, complexion, shade or tone can occur "between persons of different races or ethnicities, or even between persons of the same race or ethnicity."

The compliance guide offers numerous examples of work scenarios that would constitute unlawful discrimination.  For example, in terms of recruitment and hiring practices, the guide explains that educational requirements that exceed those that are needed to perform the job, and which disproportionately impact certain racial groups, may violate Title VII.  Similarly, reliance on word-of-mouth recruitment could create a barrier to equal employment opportunities for racial or ethnic groups not currently represented in the employer's workplace, resulting in potential liability.

Even if an employer recruits and hires employees in a manner that provides equal opportunity, and maintains a harassment-free workplace, it must still ensure that race or color bias does not impact work assignments, performance reviews, training, compensation or any other term and condition of employment.  For example, the guide points out that assigning an employee less challenging and shorter term assignments than his or her peers -- which ultimately could affect the employee's career development and pay – might result in a charge of discrimination if the employer cannot offer a credible nondiscriminatory explanation.

In another recent development, upon recommendation of an internal task force the EEOC has approved a program that will shift agency attention to the investigation and litigation of systemic, class-wide cases from individual claims.  The EEOC also is expected to issue revised regulations in response to the U.S. Supreme Court's decisions in two recent cases involving the interpretation of the Age Discrimination in Employment Act of 1967.  See General Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004), and Smith v. City of Jackson, 125 S.Ct. 1536 (2005).

Employment counsel and human resources professionals should familiarize themselves with the new compliance manual and the accompanying questions and answers.  Both documents are accessible on the EEOC website at http://www.eeoc.gov.  Counsel and HR professionals also should review their practices with regard to hiring, recruiting, promotions and terminations of employees, as well as related training programs, to uncover and address any inconsistencies with the EEOC's guidance.  Jackson Lewis attorneys are available to assist employers in reviewing workplace policies and procedures and in defending charges of discrimination filed with the EEOC or state and local fair employment practice agencies and related litigation.  Please contact the Jackson Lewis attorney with whom you regularly work, or partner Richard Greenberg, GreenbeR@jacksonlewis.com

 Joanne Skolnick, an associate in the New York office, assisted in the preparation of the article.

©2006 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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