The EEOC Revises its Compliance Manual Regarding Race and Color Discrimination

By Kyle Kring and Monica Sanchez

The US Equal Employment Opportunity Commission (EEOC) revised its Compliance Manual on April 19, 2006 to provide guidance on analyzing charges of "race and color discrimination" under Title VII of the Civil Rights Act of 1964. In a press release issued by the EEOC, the stated purpose for the new revisions is to provide comprehensive guidance that will assist employers in understanding how Title VII applies to a wide range of "contemporary discrimination" issues. Accompanying the manual, the EEOC issued a question and answer fact sheet. While we encourage you to review the full manual on the EEOC's web site, http://www.eeoc.gov/, this article highlights some of the significant information explained in the manual.

"Race" and "Color" Discrimination

The manual recognizes that although Title VII does not contain a definition of "race," Title VII's prohibition of race discrimination generally encompasses discrimination based on ancestry, physical characteristics (e.g. hair, facial features, height and weight), race-linked illness (e.g. sickle-cell anemia, since it primarily affects persons of African decent), culture (i.e. such as a person's name, cultural dress and grooming practices), perception, association, subgroup or "race plus," (i.e. discrimination against a subgroup of persons in a racial group because they have certain attributes in addition to their race (e.g. Black women with preschool-age children), and "reverse" race discrimination.

Under Title VII, color discrimination is distinct from race discrimination and although color discrimination is not defined in the statute, the courts and the Commission interpret "color" to mean pigmentation, complexion, or skin shade or tone. The manual stresses that even though race and color clearly overlap, they are not synonymous. Therefore, color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity.

Evaluating Employment Decisions

The manual reaffirms that race and color discrimination will generally fall under one of two categories known as "disparate treatment" and "disparate impact." The manual explains that disparate treatment occurs when race or another protected trait is a motivating factor in how an individual is treated. The manual stresses that biased decision making, even if not intentional, can lead to disparate treatment. For example, if an interviewer remarks that the employer is "looking for a clean cut image," and "this is a sophisticated upscale location . . . I have to make sure the people I hire have, you know, the 'soft-skills' we need" could be evidence of discrimination. The manual reminds employers that Title VII does not permit racially motivated decisions driven by business concerns, for example, concerns about the effect of employee relations, or the negative reaction of clients or customers. Race and Color can never be a bona fide occupational qualification under Title VII and customer preference is not a defense to race discrimination.

Disparate impact discrimination occurs when a neutral policy or practice is not job-related and consistent with business necessity or there is a less discriminatory alternative and the employer has refused to adopt it. Disparate impact applies to all types of employment criteria, whether objective or subjective, including: recruitment practices, hiring or promotion criteria, layoff or termination criteria, appearance or grooming standards, education requirements, experience requirements, and employment tests.

Recruitment and Hiring Practices

The manual explains that who ultimately receives employment opportunities is highly dependent on how and where the employer looks for candidates. Accordingly, "word or mouth" recruiting in a racially diverse workforce can be an effective way to promote diversity. On the other hand, the manual warns that the same method of recruiting in a non-diverse workforce is a barrier to equal employment opportunity if it does not create an applicant pool that reflects diversity in the qualified labor market.

Proactive Prevention

The manual provides some examples of "best practices" for employers of proactive measures that are designed to reduce the likelihood of Title VII violations and eliminate barriers to equal employment opportunity (EEO). Some of the practices include:

• Developing a strong EEO policy that is embraced by the CEO and top executives
• Train managers and employees about the EEO policy, enforce the policy, and hold company managers accountable
• Make sure decisions are transparent and documented
• Recruit, hire, and promote with EEO in mind, by implementing practices designed to widen and diversify the pool of candidates
• Analyze the duties, functions, and competencies relevant to jobs. Then create objective, job-related qualified standards related to those duties, functions and competencies
• Identify and remove barriers to EEO
• Develop the potential of employees, supervisors, and executives with EEO in mind, by providing training and mentoring to give workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascent to upper-level jobs
• Make sure promotion criteria are made known, and that job openings are communicated to all eligible employees.

This EEOC compliance manual is a sign that the Commission has become more sophisticated in its approach to claims of race and color discrimination. Therefore, employers must also increase their awareness and become more sophisticated in their policies and practices. The EEOC compliance manual provides helpful guidance and should be reviewed by all human resource directors.

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This article was prepared by Kyle Kring and Monica Sanchez. Mr. Kring is the managing partner of Kring & Chung, LLP. Ms. Sanchez is an associate at Kring & Chung, LLP's Irvine and San Diego office. You can contact Mr. Kring and Ms. Sanchez at 949-467-9164.