EEOC Takes Action on Race and Color Discrimination, Class-Wide Bias, and Age Claims

May 18, 2006

Facing a growing number of race and color discrimination charges, the Equal Employment Opportunity Commission has issued new guidance as to what constitutes such discrimination under Title VII of the Civil Rights Act of 1964.  Additionally, the EEOC has announced a shift in its investigation of discrimination claims, and intends to modify existing regulations in response to recent Supreme Court decisions addressing the purpose and statutory interpretation of the Age Discrimination in Employment act. 

New Guidance on Avoiding Race and Color Discrimination Includes Q & A

Charges of race discrimination continue to outpace all other charges of discrimination. Of the approximately 75,400 charges of discrimination filed with EEOC field offices nationwide during the 2005 fiscal year, over 35 % alleged race-based discrimination. In response, the EEOC compliance manual, released on April 19, 2006, now provides guidance to employers on how to avoid race and color discrimination, including best practices for recruiting, hiring, promotion, and other employment decisions. Accompanying the guidance, the EEOC issued a shorter question and answer document summarizing the contents of the guide.

Although Title VII does not define discrimination on the basis of race, the guidance defines race to include ancestry, physical characteristics, race-linked illness, cultural characteristics (such as grooming practices or manner of speech), perception of an individual's race, association with someone of a particular race, "race plus" another factor, and reverse race discrimination. 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 guidance also emphasizes that the legality of employment decisions must be assessed both for disparate treatment, which occurs when race or another protected trait is a motivating factor in the treatment of an individual, and for disparate impact, which occurs when a neutral policy or practice has a disproportionately negative effect on a protected group. Several examples in the guidance illustrate that intent is not a prerequisite for disparate treatment, and using racial stereotyping when choosing a job applicant can be unlawful bias, even though it is unintentional. If an interviewer remarks that the employer is "looking for a clean cut image" or that its upscale location requires "soft-skills," such statements could be evidence of discrimination. The same holds true for employment decisions based on racial preferences expressed by customers and which are no defense to a charge or complaint.

Specific areas that may involve race or color discrimination are discussed in the guidance.

Recruitment and Hiring Practices

Among the guidance's examples of work scenarios that may involve unlawful discrimination in recruitment and hiring are educational requirements that exceed those necessary for the job and which disproportionately impact certain racial groups, and reliance on word-of-mouth recruitment where racial or ethnic groups are not represented in the workplace.

Work Assignments, Performance Reviews and Terms and Conditions

The guide points out that giving an employee less challenging and shorter term assignments than his or her peers – which would ultimately affect the employee's performance reviews, career development and compensation – might result in a charge of discrimination if the employer cannot offer a credible nondiscriminatory explanation.

Harassment and Discrimination

The guidance reiterates that race-based conduct may result in liability for unlawful harassment when the conduct is both unwelcome and sufficiently severe or pervasive to alter the terms and conditions of employment. Although a single incident does not generally rise to the level of a Title VII violation, the manual provides examples of conduct egregious enough to constitute a violation, including an actual or depicted noose or burning cross, a favorable reference to the Ku Klux Klan, and an unambiguous racial epithet. The guide also offers several illustrations of conduct that could be considered sufficiently severe or pervasive. For example, repeated ridicule and racial jokes over the course of a month could be deemed pervasive.

In terms of prevention, the guidance reaffirms the importance of an employer clearly communicating to its employees that harassment based on race will not be tolerated. A crucial part of this message is the consistent enforcement of the policy, including meting out swift and appropriate corrective action for any violations. Other important steps an employer should take include training managers on how to respond effectively to harassment and encouraging employees to report harassing conduct at an early stage.

EEOC Shifts Emphasis to Claims of Class-Wide Discrimination

In another recent development, the EEOC has approved a program that will shift agency attention to the investigation and litigation of systemic, class-wide cases from individual claims. Following the recommendations of a task force, the EEOC plans improvement of coordination between headquarters and field offices, greater sharing of data, and establishment of an oversight committee to assess the agency's effectiveness in combating systemic discrimination. The task force defined systemic cases as "pattern or practice" or class-oriented cases in which the alleged discrimination has a broad impact on an industry, profession, company or geographic location.

EEOC Expects to Issue Revised ADEA Regulations

In another development, the EEOC is expected to release revised regulations in response to two decisions from the U.S. Supreme Court in cases involving the interpretation of the Age Discrimination in Employment Act of 1967, the federal law protecting employees age 40 and over from discrimination in the workplace. See General Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004) and Smith v. Jackson, 125 S. Ct. 1536 (2005). The revisions will affect current regulations 29 C.F.R. 1625.2, 1625.4, 1625.5 and 1625.7.

In the Cline decision, the Supreme Court held that the ADEA does not prohibit employment practices that favor older employees over relatively younger ones, where both are protected under the Act. The case involved a group of 40 – 49 year-old employees covered under the Act. The employees challenged a collective bargaining agreement between the company and a union limiting the availability of retiree health benefits to employees who were at least 50 years old. The federal trial court dismissed the age discrimination claim, ruling it to be one of reverse age discrimination upon which no court had granted relief under the ADEA.

Reversing that decision, the U. S. Court of Appeals for the Sixth Circuit ruled that the younger employees could sue for age discrimination. The court relied in part upon the EEOC's interpretive regulations, which construe the statute as prohibiting discrimination against any individual who is at least 40 years old and as barring favoritism toward any protected employee over any other protected employees based on age.Stemming a potential avalanche of reverse age discrimination claims, the Supreme Court ruled that the ADEA only prohibits age-based discrimination against relatively older individuals, and that reverse age discrimination claims are not within the scope of the Act. In a further swipe at the EEOC, the Court also held that the EEOC's reading of the statute was "clearly wrong."

To conform with the Court's finding, the EEOC will revise current regulations 29 C.F.R. §§1625.2, 16.25.4 and 1625.5, which address discrimination in treatment of individuals protected by the ADEA, help wanted advertisements, and employment applications.

In the Jackson decision, the Supreme Court resolved a split among the federal appeals courts over whether the ADEA authorizes disparate impact suits against employers. The question involved a municipal policy that gave preferential treatment regarding pay raises to employees with five or fewer years of experience, and which had a greater impact on younger employees. The district court and the U. S. Court of Appeals for the Fifth Circuit granted summary judgment, ruling that the ADEA was not intended to cover claims where an ostensibly neutral policy has a disparate impact on employees aged 40 and older.

The Supreme Court held, however, that disparate impact is a cognizable theory of discrimination under the ADEA, as it has been under Title VII. Although the Court thereby made it easier for employees to recover damages under the ADEA, it did limit the potential impact by also holding that an employer may escape liability if the practice or policy at issue is based on reasonable factors other than age. The EEOC plans to revise regulation §1625.7(d) in response to the Court's ruling.

Employment counsel and human resources professionals should familiarize themselves with the new compliance manual and the accompanying questions and answers. Both documents, along with the EEOC task force report, are found 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, 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. For more information, please contact the attorney with whom you regularly work, or partner Richard Greenberg, at (212) 545-4080; GreenbeR@jacksonlewis.com.

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