Overview: Title VII and many state laws not only prohibit race discrimination but also prohibit color discrimination. Thus, an individual may not be discriminated against based on his or her race or the color of his or her skin complexion.
Race discrimination often surfaces when an individual receives unfair treatment based on race or color. However, it also arises in situations in which a facially neutral employment policy has a negative impact on individuals of a certain race, see disparate impact.
Therefore an employer should avoid hiring procedures and other employment tests that may have a disparate impact based on race. Further, an employer should develop a workplace culture of diversity, inclusion and respect where racial slurs and stereotypes will not be tolerated.
Trends: The Equal Employment Opportunity Commission has instituted the E-RACE Initiative (Eradicating Racism And Colorismfrom Employment) in order to amplify its efforts to rid the workplace of race and color discrimination.
In doing so, the EEOC will identify issues, criteria and barriers contributing to race and color discrimination, investigate strategies to improve the litigation of race and color discrimination claims, and increase public awareness of race and color discrimination in employment. Additionally, the EEOC has identified targeting recruiting and hiring practices that discriminate against racial groups as one of its priorities in its Strategic Enforcement Plan.
Further, employers should be careful about using any preemployment screenings and background checks that may have a disparate impact and discrimination against individuals of a certain race such as the use of arrest and conviction records, residency requirements, or unemployment status.
Employers should also be aware that various states and localities prohibit discrimination based on hair texture or hair style associated with race and expand the definition of race to include discrimination based on traits historically associated with race, including hair texture and protective hairstyles, such as braids, dreadlocks and twists. Therefore, employers should not take adverse action against an employee or applicant based on hairstyle or prohibit employees from wearing braids, locks, twists and other hairstyles that are historically associated with race.
Employers should also be aware of reverse race discrimination claims.
Author: Beth P. Zoller, JD, Legal Editor
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