case analysis only for kim woods

SCENARIO 1

employee of her poor performance nor given her any negative feedback during evaluations to en- able her to assess her performance and govern herself accordingly. In fact, there were specific or- ders not to give her any negative feedback. The employee sues for racial discrimination, alleging it was a violation of Title VII for the employer not to give her appropriate negative feedback during evaluations to prevent her from being put in the position of being terminated. Does the employee win? Why or why not?

SCENARIO 3

An employer has a “no-beard” policy, which

3

win? Why? Why not?

1

Mary, an Asian employee with light skin

tone, reports that her manager, Joan, who Scenario is a darker skin-toned Asian, is saying nega- tive things to Mary about the color of Mary’s lighter skin. The comments include state- ments such as that Mary thinks she (Mary) is better than other employees, Mary is not as special as Mary thinks she is, and so on. Joan also constantly calls Mary “Sunshine” in a sarcastic way, which Mary takes as a reference to Mary’s lighter skin. Mary is afraid that Joan will give her a bad evalua- tion. Mary is also embarrassed about having this constantly happen in front of other employees. Are Joan’s actions more than just unprofessional

applies across the board to all employees. A Scenario black employee tells the employer he can- not shave without getting severe facial bumps from ingrown hairs. The employer replies that the policy is without exception and the em- ployee must comply. The employee refuses and is later terminated. The employee brings suit under Title VII on the basis of race discrimination. Does he

behavior, are they illegal?

SCENARIO 2

A black female employee is terminated

2
Scenario ployment. The decision was made to ter-

during a downsizing at her place of em-

minate the two worst employees, and she was one of them. The employer had not told the

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 individual’s 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 individual’s race, color . . . [Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a).]

Note: Not a semester goes by that white students do not ask: “Which term should we use: ‘black’ or ‘African-American’?” They are unsure which term to use for fear of offending. You may have noticed that the terms are used interchangeably throughout the text. If in doubt, simply ask. This is particularly important for managers and supervisors, as it indicates a respect for the employee’s feelings. Even if you do not ask, our experience has been that it rarely matters and most blacks are not offended by the choice of one or the other.

257

258 Part Two Regulation of Discrimination in Employment Surprised?

Race is the first of the prohibited categories in Title VII, the main reason for pas- sage of the law, and it remains, even today, a factor in the lives of many employ- ees. At the same time we can point to having elected President Barack Obama the country’s first African-American president, having had two black secretaries of state, and Oprah Winfrey topping the Forbes list of the wealthiest Americans, the Southern Poverty Law Center issued a report in February 2011 that, for the first time since it began tracking hate groups in the United States, the number of groups has risen to over 1,000.1 Race still matters more than many may realize. So much so that it might surprise you to discover the following:

• Research showed that employers would rather hire a white man who had served time in prison than a black man who had not.2 


• When researchers sent out identical résumés for jobs listed in the newspaper, with the only difference being the names of the applicants, those with “ethnic” names like Jamal or Lakiesha received 50 percent fewer callbacks for jobs than the identical résumés with traditionally white names like Megan or Brad. This remained true even when the ethnic applicants were given zip codes that indi- cated that the applicant lived in an area of higher socioeconomic status.3 


• In addition to visual profiling, researchers have found linguistic profiling— African-Americans who leave messages in response to ads often never receive return calls, while whites almost always do.4 


• In 2008, blacks were making about $.62 for every dollar whites made. In 2007 it was $.60. In the mid-1970s it had narrowed to about $.50 on the dollar.5 


• During oral arguments in the Lopez v. Gonzales6 and Toledo-Flores v. United States7 cases that could impact thousands of immigrants, U.S. Supreme Court Justice Antonin Scalia made a reference to one of the parties in a case, a Mexican who had been deported back to his country, as someone unlikely to keep from drinking tequila on the chance he could return to the United States.8 


• In the 2004 elections in Alabama, voters voted to keep the Alabama constitu- tion’s language that says “separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race.”9 


• A full-time paid intern hired over the phone to work at an Iowa cosmetics com- pany as a cosmetics formulator because she was in England at the time, arrived in Iowa, only to be told by her supervisor that everyone would be “surprised” that she was black. She was given no work as other white interns were, despite her continually asking for it. She was fired shortly thereafter.10 


• At Charapp Ford South, a car dealership near Pittsburgh, two black employees who complained about constant racial harassment in the workplace allegedly found a document that suggested “ten ways to kill” African-Americans. When they complained, a manager told them that “people [around here] wanted to see blacks washing cars, not selling them.”11 


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Chapter Six Race and Color Discrimination 259

• A temp agency used code words to supply Jamestown Container Co. and Whit- ing Door Mfg. Co. with the white male employees they requested, denying placements to minorities and women.12 


• The president of a staffing services company allegedly told Carolyn Red Bear, a Native American employee, many derogatory statements that had been made about her “ethnic” appearance, alleging that she did not “fit in” with the white community and should seek employment more consistent with the skills of Native Americans. She was terminated for refusing to comply with a directive to cut her hair, change her last name, and stop “rubbing in” her heritage.13 


• A congressionally commissioned study by the Institute of Medicine found that “bias, prejudice, and stereotyping on the part of health care providers” contrib- utes to African-Americans being less likely than whites to receive appropriate heart medication, coronary artery bypass surgery, and kidney transplants, as well as being more likely to receive a lower quality of basic clinical services such as intensive care.14 


• Nearly half of white Bostonians surveyed said that African-Americans and Hispanics are less intelligent than whites and that African-Americans are harder to get along with than other ethnic groups.15 


• A five-year, seven-volume study by the Russell Sage Foundation found that “racial stereotypes and attitudes heavily influenced the labor market, with blacks landing at the very bottom.”16 


• A survey of new recruits and minority firefighters at the Los Angeles Fire De- partment found that 87 of them had either experienced or were aware of dis- crimination and that hazing and discrimination are rampant. In one case, a black firefighter said white firefighters mixed dog food into his spaghetti din- ner. After reporting it, he experienced verbal slurs and insults by firefighters “barking like dogs.”17 


• In DeKalb County, GA, three white and one black employee sued for race discrimination. The black employee alleged he was terminated because he re- fused to discriminate against white managers when he was told to withhold information from white employees so they would appear incompetent. The white employees alleged they were replaced with black employees in an effort to create a “darker administration” to reflect DeKalb’s racial makeup.18 


• The EEOC settled a case in which supervisors routinely used “egregious” ethnic slurs for African-Americans, Hispanics, and Asians and said things like “It should not be against the law to shoot Mexican men, women, and children or to shoot African-Americans and Chinese people,” and “If I had my way I’d gas them [referring to African-American employees] like Hitler did the Jews.”19 
Unfortunately, there are many more items that could be added to this list. We gave you this sampling of wide-ranging race-related news items so that you can see how much racism is still a factor of life in the United States and in how 


260 Part Two

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many ways it can be manifested by individuals of any status. We included so many, and such varied, items because unless these issues are on your radar screen, you may be totally unaware of them. This is a luxury that a manager, supervisor, or business owner cannot afford. A 2008 USAToday/Gallup poll found that a majority of Americans say racism against blacks is widespread, including 51 percent of whites, 59 percent of Hispanics, and a whopping 78 percent of blacks.20 After the election of the first black U.S. president, the numbers went up somewhat,21 but by the next year, they had gone back to pre- Obama levels.22

If any of this surprises you, you are not alone. As you can see from the 2008 poll above, there is a large gap between what whites and Hispanics believe about race and what blacks believe (51 and 59 percent vs. 78 percent). This is consistent with a 2001 Gallup poll reporing that 76 percent of whites, including 9 out of 10 under 30 (emphasis added because our experience shows most students think it is only older people who discriminate), thought African-Americans were now being treated fairly or somewhat fairly, compared to only 38 percent of African-Americans who thought so.23 It also makes sense given that much of our attitude stems from our own personal experience as well as history. The history of slavery and its aftermath represented quite a different experience for whites and Hispanics than blacks. Hispanics, and whites of course, have their own history here also, and you can see that reflected in the numbers.

You can see what a problem these findings would present in the workplace. Not only could discrimination be occurring, but, as a manager, you could possibly not realize it. Much of the race discrimination now occurring in the workplace is not as overt as it was before Title VII (see Exhibit 6.1, “Classified Ads, 1961”), but it is still very much a factor in employment. (See Exhibits 6.2, “Equal In- come?” and 6.7, “EEOC’s Revised Rule Guidance.”) And, as you can also see from some of the items in our sampling, race discrimination in the workplace does not occur in a vacuum. It is part of a much larger picture of race-based dis- crimination in the greater society.

Working to get future managers and supervisors to see this larger picture is a big part of what this chapter is about. The more you can see the bigger picture, the less likely you are to be a part of unnecessary claims of workplace race discrimination. That is why we can’t simply tell you the law and leave it at that. The law has been in place for over 40 years and race discrimination claims are still very much a part of Title VII. They have risen every decade since the law was passed and still account for over one-third of the EEOC’s total claims filed. This is consistent with the research findings. What we are seeing as the Title VII system is still being fine-tuned through litigation, legislation, and regulatory efforts is that supervisors and managers often do not recognize race discrimination or its effects when they occur. We do not want that to happen to you. We want to provide you with an effective and basic background in the area of race discrimination so you have the tools you need to protect your employer from liability for workplace discrimination.

Chapter Six Race and Color Discrimination 261

Exhibit 6.1 Classified Ads, 1961

The exhibit below, taken from an actual news- paper classified ad section from 1961, is typical of want ads found in newspapers before Title VII was passed in 1964. For publication purposes,

names and phone numbers have been omitted. It now illegal to advertise for males, females, or racial groups.

Male Help Wanted

Situations Wanted, Female 24

Situations Wanted, Male, Col. 28

PERMANENT position for 2 young men 18-35, must be ambitious, high school graduate, and neat appearing. $85 week guaranteed, plus bonus. Opportunity to earn in excess of $100 per week. Must have desire to advance with company. For interview call...

SECRETARY—RECEPTIONIST (ex- perienced). Ex-Spanish teacher desires diversified permanent position. Respon- sible, personable, like people, unencum- bered. Can travel.

YOUNG man wants job. Short order and plain cooking, experienced.

Help Wanted,
Female, Col. 29

EXPERIENCED executive secretary with college degree, top skills, currently employed—seeks better position with opportunity for advancement and good salary.

MAID, free to travel with family, $35 to $50 week. Free room and board.

18-25, SINGLE, free to travel, New York and Florida, returns for clearing house for publishers. New car, transportation furnished. Expense account to start. Salary plus commission. We train you. Apply...

SECRETARY desires typing at home, evenings, and weekends.

LAUNDRY MARKER—Experienced. 40 hours—pay hourly basis.

SHIRT girl. Experienced.

SHIRT girl, Experienced. Good pay. Good hours. Apply in person.

14 OR OVER. Must be neat in appearance to work this summer. Salary 75 cent per hour. Will be supervised by trained student counselor. Apply...

MAN experienced in selling and familiar with the laundry and dry cleaning business needed to sell top brands of supplies to laundries and dry cleaning plants. This is an excellent opportunity for a man who is willing to work for proper rewards. Salary and comm. Reply to...

Help Wanted Male, Colored 26

WAITRESS, experienced, for lunch counter. Over 40. Call...

Situation Wanted, Female, Col. 31

DAY or night shift. No experience nec- essary. Good tips. Apply in person only.

HOUSEMAN, chauffeur. Must be expe- rienced. Recent references, driver’s license, health card required. Must be sober, reliable. Write...

COOK-MAID (experienced)—desires Monday, Wednesday, Friday. References and health card.

MAID wants 5 days week. References.

EXPERIENCED dairy man to work in modern dairy in Florida. Must be married, sober, and reliable. Salary $60 per week for 6 days with uniform, lights and water—furnished. Excellent house. Write...

GIRL WANTS 5 DAYS

FOR frying and dinner cooking. Age 22- 35. Must be sober, dependable and well- experienced. Salary $250-$275 for good man. Apply...

MAID wants 5 days work. Will live-in.

SOBER, experienced service station por- ter. No Sundays. Top pay.

MID-TEEN girl desires maid or office work.

THIS corporation provides its salesmen with a substantial weekly drawing ac- count. New men are thoroughly trained in the field with emphasis directed to- ward high-executive income bracket. Men experienced in securities, encyclo- pedias, and other intangibles who can stand rigid investigation, are dependable, and own late-model car. Reply to...

PART-TIME lawn and yard maintenance man.

EXP service station porter, 6-day wk. Good sal.

KITCHEN porters, also ware washers. Apply...

262 Part Two Regulation of Discrimination in Employment

Exhibit 6.2 Equal Income?

According to 2006 U.S. Census data, Asian Ameri- cans had higher personal income than any other racial demographic except holders of graduate de- grees. Whites with advanced degrees had the high- est median income. African-Americans earned 22 percent less than whites. Hispanics/Latinos had the lowest overall median income, with 28.51 per- cent less than whites and 35 percent less than Asian Americans.

Source: U.S. Census Bureau, http://pubdb3.census.gov/ macro/032006/perinc/new03_000.htm.

According to WCBS radio:

U.S. Census data indicate that Queens, New York, is the only U.S. county of 65,000 or more residents where the median income of African- Americans is greater than that of whites. Black median income was $51,000, while white median income was $50,900. Asian American income was nearly $53,000, while Hispanic income was $44,000. Across the river in Manhattan, the situation is quite different, with the largest gap of any other large county in the country, white median income was $86,000 and African-American income was $28,000.

Source: “Median Income for Blacks Greater Than Whites in Queens,” October 2, 2006, http://forum.dvdtalk.com/ archive/t-480980.html.

Evolving Definitions of Race

When someone says the word race, what do you think of? Chances are, most of us think of black or white. We find ourselves at a rather interesting juncture regard- ing race claims at this point in time. For virtually the entire time Title VII has been in existence, race has been almost exclusively about African-Americans and whites, with discrimination against other groups considered primarily under the national origin category. (See Exhibits 6.3, “EEOC’s Revised Race/National Origin Guidance,” and 6.4, “Hispanic: Race or National Origin—and Who Is Included?”) As you have seen in previous chapters, the long and extensive history leading up to the passage of the Civil Rights Act and the court interpretations of it afterward bear this out.

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Exhibit 6.3 EEOC’s Revised Race/National Origin Guidance

New forms of discrimination are emerging. With a growing number of interracial marriages and fami- lies and increased immigration, racial demographics of the workforce have changed and the issue of race discrimination in America is multidimensional. Over the years, EEOC has received an increasing number

of race and color discrimination charges that allege multiple or intersecting prohibited bases such as age, disability, gender, national origin, and religion.

Source: http://eeoc.gov/initiatives/e-race/why_e-race .html.

Chapter Six Race and Color Discrimination 263

Exhibit 6.4 Hispanic: Race or National Origin—and Who Is Included?

Ever wonder where racial categories come from? In this interesting exhibit, you get to see (1) how a court addresses certain groups being left out of a definition of Hispanic (note especially footnote 1) and (2) how the government comes up with racial classifications and how they find their way into the mainstream. The first is an excerpt from a discrimi- nation case; the second is a document from the U.S. Census Bureau about how Asians will be added to the minimum categories and how Hispanics will be classified in the census. While reading the docu- ment and noting all the effort and energy given to this issue, ponder the necessity of having such classifications at all.

(1)

Rocco Luiere, Jr., “the son of a Spanish mother whose parents were born in Spain,” owns seventy- five percent of the shares in Jana-Rock Construction, Inc. Luiere and Jana-Rock bring a challenge under the Equal Protection Clause of the Fourteenth Amendment to New York’s “affirmative action” stat- ute for minority-owned businesses, because the law does not include in its definition of “Hispanic” peo- ple of Spanish or Portuguese descent unless they also come from Latin America. The plaintiffs allege that by distinguishing among different subclasses of Hispanics, Article 15-A contains an explicit classifica- tion on the basis of national origin that should be subjected to strict scrutiny, and that under strict scrutiny New York’s definition of “Hispanic” would fail. Applying rational basis review rather than strict scrutiny, the district court entered judgment in fa- vor of the defendants and dismissed the complaint.

When a plaintiff challenges “racial classifica- tions, imposed by whatever federal, state, or local governmental actor, [the classifications] must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitu- tional only if they are narrowly tailored measures that further compelling governmental interests.”1

1The classifications that are the subject of this appeal are based on national origin rather than race. It is undisputed, however, that principles of analysis applicable to

“The purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that the legisla- tive body is pursuing a goal important enough to warrant use of a highly suspect tool.”

But once the government has shown that its decision to resort to explicit racial classifications survives strict scrutiny by being narrowly tailored to achieve a compelling interest, its program is no longer presumptively suspect. We do not think that it is appropriate to apply automatically strict scru- tiny a second time in determining whether an otherwise valid affirmative action program is underinclusive for having excluded a particular plaintiff. In order to trigger strict scrutiny, such a plaintiff—like other plaintiffs with equal-protection claims—must demonstrate that his or her exclusion was motivated by a discriminatory purpose. Because the plaintiffs do not otherwise challenge the consti- tutional propriety of New York’s race-based affirma- tive action program, and because Luiere and Jana-Rock cannot show that New York adopted its chosen definition of “Hispanic” for a discriminatory purpose or that its definition lacks a rational basis, we agree with the district court’s judgment for the defendants and affirm.

Source: Jana-Rock Construction, Inc. v. New York State De- partment of Economic Development, Division of Minority & Women’s Business Development, 438 F.3d 195
(2d Cir. 2006).

(2) RACIAL AND ETHNIC CLASSIFICATIONS USED IN CENSUS 2000 AND BEYOND

Introduction. The purpose of this document is to provide information about changes to the ques- tions on race and Hispanic origin that have occurred for the Census 2000. These changes conform to the revisions of the standards for the classification of federal data on race and ethnicity

race-based affirmative action programs are the same as those applicable to national-origin-based affirmative action programs. We therefore use the terms interchangeably.

continued

264 Part Two Regulation of Discrimination in Employment

Exhibit 6.4 continued

promulgated by the Office of Management and Budget (OMB) in October 1997.

Old Standards. In response to legislative, program- matic, and administrative requirements of the fed- eral government, the OMB in 1977 issued Statistical Policy Directive Number 15, “Race and Ethnic Stan- dards for Federal Statistics and Administrative Reporting.” In these standards, four racial categories were established: American Indian or Alaskan Native, Asian or Pacific Islander, Black, and White. In addi- tion, two ethnicity categories were established: His- panic origin and Not of Hispanic origin. Although the Census Bureau has traditionally used more cate- gories for decennial censuses, those categories col- lapsed into the four minimum race categories identified by the OMB, plus the category Some Other Race.

Reason for Changing the Old Standards. The racial and ethnic makeup of the country has changed since 1977, giving rise to the question of whether those standards still reflected the diversity of the country’s present population. In response to this criticism, the OMB initiated a review of the Direc- tive. This review included (1) organizing a work- shop to address the issues by the National Academy of Science, (2) convening four public hearings, and (3) appointing an Interagency Com- mittee for the Review of Racial and Ethnic Stan- dards, which later developed a research agenda and conducted several research studies. The result of the Committee’s efforts was a report describing recommended changes to the Directive. The members of the Committee included representa- tives of more than 30 agencies that covered the many diverse federal requirements for data on race and ethnicity. In 1997, the OMB accepted al- most all of the recommendations of the Inter- agency Committee, resulting in changes to the standards.

What Are the New Standards and When Do They Take Effect?
In October 1997, the Office of Management and Budget (OMB) announced the revised standards for federal data on race and ethnicity. The minimum categories for race are now: American Indian or Alaska Native; Asian; Black or African-American; Native Hawaiian or Other Pacific Islander; and White. Instead of allowing a multiracial category as was originally suggested in public and congressio- nal hearings, the OMB adopted the Interagency Committee’s recommendation to allow respon- dents to select one or more races when they self- identify. With the OMB’s approval, the Census 2000 questionnaires also include a sixth racial cat- egory: Some Other Race. There are also two mini- mum categories for ethnicity: Hispanic or Latino and Not Hispanic or Latino. Hispanics and Latinos may be of any race.

How Should Hispanics or Latinos Answer the Race Question?
People of Hispanic origin may be of any race and should answer the question on race by marking one or more race categories shown on the ques- tionnaire, including White, Black or African- American, American Indian or Alaska Native, Asian, Native Hawaiian or Other Pacific Islander, and Some Other Race. Hispanics are asked to indicate their origin in the question on Hispanic origin, not in the question on race, because in the federal statistical system ethnic origin is consid- ered to be a separate concept from race.

What Racial Categories Will Be Used in Current Surveys and Other Data Collections by the Census Bureau?
By January 1, 2003, all current surveys must comply with the 1997 revisions to the Office of Manage- ment and Budget’s standards for data on race and ethnicity, which establish a minimum of five

continued

Chapter Six Race and Color Discrimination 265

categories for race: American Indian or Alaska Native, Asian, Black or African-American, Native Hawaiian or Other Pacific Islander, and White. Respondents will be able to select one or more of these racial categories. The minimum categories for ethnicity will be Hispanic or Latino and Not Hispanic or Latino. Tabulations of the racial catego- ries will be shown as long as they meet agency

standards for data quality and confidentiality pro- tection. For most surveys, however, tables will show data at most for the White, Black, and Asian populations.

Source: U.S. Census Bureau, Population Division, Special Population Staff, http://www.census.gov/population/ www/socdemo/race/racefactcb.html.

But as the United States takes in more immigrants and they join the work- force and bring claims involving workplace discrimination, what constitutes race discrimination is changing. The term race, in the context of employment discrimination, is being used differently than it had been. For instance, on April 16, 2007, you will likely recall that Virginia Tech University senior Cho Seung-Hui shot and killed 32 people and wounded 25 others on the uni- versity campus. It was a while before police could identify the gunman. Three days later, the Atlanta Journal and Constitution ran a headline: “Trag- edy strikes; then race enters the picture.” Seung-Hui was born in Korea but was a permanent resident of the United States. According to the article, the first official identification of the Virginia Tech gunman was of his race and gender: “We do know that he was an Asian male,” the university president said. It surprised us to see race (rather than national origin) used in this con- text. However, especially since the events of September 11, 2001, with its resulting backlash against Middle Easterners, and the simultaneous growing, visible presence of Hispanics, Southeast Asians, and other ethnicities in this country, it is clear that there is a trend toward negative treatment of these groups that we should address.

While the editions of this book prior to the last one reflected the situation existing at the times they were published, our last edition expanded and updated the chapter on racism to include discrimination against people other than the traditional groups of black and white. Keep in mind that we always addressed workplace discrimination on the basis of ethnicity or national origin; it was simply dealt with in a separate chapter because that is the way the law generally handled it. There will continue to be a separate chapter on national origin discrimination, as the issues called upon in such cases have their own history and legal interpretation to which attention must be given. However, in keeping with the changing times and our rapidly changing American demographics, we also will address other ethnicities in this chapter.

In expanding our race coverage, however, it is important that we preserve the history and background of the Civil Rights Act of 1964 so that the law can continue to be understood in its proper context; that is, the context of slavery, Jim Crow, and the fight for civil rights (and the lingering effects of each) in

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Exhibit 6.5 Reality of Intentional Job Discrimination

In 2002, Alfred W. Blumrosen and Ruth G. Blumrosen, well-respected lawyers, law professors, and civil rights researchers, released an unprece- dented, comprehensive, groundbreaking study of workplace discrimination called The Reality of Inten- tional Job Discrimination in Metropolitan America—1999. The objective of the Ford Foundation–funded study was “to advance the public ‘sense of reality’ con- cerning the present extent of intentional job dis- crimination.” The study examined 160,297 EEO-1 reports (discussed in Chapter 4) supplied to the federal government by private employers with 100 or more employees and federal contractors with 50 or more employees, for the period 1975–1999. It identified intentional employment discrimination by applying legal standards to statistics of the race, gender, and ethnic composition of large and medium-sized employers in the private sector. The report contained statistical information on 40 indi- vidual states, as well as the nation as a whole.

The report concluded that “a substantial part of the public has erroneously assumed that intentional

job discrimination is either a thing of the past, or the acts of individual ‘bad apples’ in an otherwise decent work environment . . . Meanwhile, thou- sands of employers have continued systematic re- striction of qualified minority and female workers, and these workers have lost opportunities to de- velop and exercise the skills and abilities that would warrant higher wages.” The report found that Afri- can-Americans “still bear the severest brunt of this discrimination . . . Thirty-five thousand business establishments discriminated against 586,000 African-Americans. Ninety percent of these black workers were affected by establishments that were so far below the average utilization that there was only a 1 in 100 chance that this happened by acci- dent and half by ‘hard core’ employers who had been discriminating for at least nine years.”

Source: Alfred W. Blumrosen and Ruth G. Blumrosen, The Reality of Intentional Job Discrimination in Metropolitan America—1999 (2002), http://www.eeo1.com/1999_NR/ Title.pdf.

which it occurred. It is important that we not marginalize what has been, and continues to be, a long-standing, persistent, and maddeningly stubborn issue in this country: discrimination against African-Americans (see Exhibit 6.5, “Reality of Intentional Job Discrimination”). This is not a value judgment as to the relative importance of discrimination against one group versus another. Rather, it is a recognition of the long, tortuous, and lingering history and impact of traditional notions of race discrimination in the United States and the role that the fight for equality and civil rights for African-Americans has played in all groups now expecting to be treated equally. The expanded notion of race will not neglect either the important basis for the law that birthed the legislation in the first place, or the present-day effects that continue to persist even as other groups come into the United States and rise to become accepted as a part of our country rather than “outsiders.” This is a factor that the Russell Sage/Harvard study on race discussed.

In taking the approach we now do, we want to recognize that the willing- ness of other groups to exercise their rights under the law by using the race category rather than, or in addition to, the national origin category is a trend

Chapter Six Race and Color Discrimination 267

Exhibit 6.6 EEOC’s E-RACE Initiative

THE E-RACE INITIATIVE (ERADICATING RACISM AND COLORISM FROM EMPLOYMENT)

Why Do We Need E-RACE?

The most frequently filed claims with the EEOC are allegations of race discrimination, racial harass- ment, or retaliation arising from opposition to race discrimination. In Fiscal Year 2006, 27,238 charges alleged race-based discrimination, accounting for 36 percent of the charges filed that year.

In a 2005 Gallup poll, 31 percent of Asian Americans surveyed reported having witnessed or experienced incidents of discrimination, the largest percentage of any ethnic group, followed closely by 26 percent of African-Americans, the second largest group. A December 2006 CNN poll conducted by Opinion Research Corporation revealed that 84 per- cent of 328 Blacks/African-Americans and 66 per- cent of 703 non-Hispanic Whites/Caucasians think racism is a “very serious” or “somewhat serious” problem in America.

Color discrimination in employment seems to be on the rise. In Fiscal Year 1992, the EEOC received 374 charges alleging color-based discrimi- nation. By Fiscal Year 2006, charge-filings alleging color discrimination increased to 1,241. A recent study conducted by a Vanderbilt University profes- sor “found that those with lighter skin earn on aver- age 8 to 15 percent more than immigrants with the darkest skin tone—even when taking into account education and language proficiency. This trend continued even when comparing people of the same race or ethnicity.” Similarly, a 2006 University

of Georgia survey revealed that a light-skinned black male with only a bachelor’s degree and basic work experience would be preferred over a dark- skinned black male with an MBA and past manage- rial positions. However, in the case of black female applicants seeking a job, “the more qualified or ex- perienced darker-skinned woman got it, but if the qualifications were identical, the lighter-skinned woman was preferred.”

Meanwhile, overt forms of race and color dis- crimination have resurfaced. In the past decade, some of the American workforce have witnessed nooses, KKK propaganda, and other racist insignia in the workplace. Racial stereotypes and cultural distor- tions continue to influence some decisions regarding hiring, discipline, evaluations, and advancement.

Finally, some facially neutral employment criteria are significantly disadvantaging applicants and em- ployees on the basis of race and color. Studies reveal that some employers make selection decisions based on names, arrest and conviction records, employ- ment and personality tests, and credit scores, all of which may disparately impact people of color. Fur- ther, an employer’s reliance on new technology in job searches, such as video résumés, could lead to intentional race or color discrimination based on ap- pearance or a disproportionate exclusion of appli- cants of color who may not have access to broadband-equipped computers or video cameras.

Collectively, these data show that racial inequal- ity may remain a problem in the 21st century workplace.

Source: http://eeoc.gov/initiatives/e-race/index.html.

we see, note, and here reflect. The EEOC also has seen this trend and, in part because of it, launched a new initiative called E-RACE (Eradicating Racism and Colorism from Employment) intended to address these changes. (See Exhibit 6.6, “EEOC’s E-RACE Initiative.”) As part of their revised Compli- ance Manual, issued in 2006, the EEOC outlined the differences between the categories of race, color, and national origin. (See Exhibits 6.7, “EEOC’s Revised Race Guidance”; 6.8, “EEOC’s National Origin Guidance”; and

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Exhibit 6.7 EEOC’s Revised Race Guidance WHAT IS “RACE” DISCRIMINATION?

Hawaiians have a disproportionately high inci- dence of diabetes. If the employer applies fa- cially neutral standards to exclude treatment for conditions or risks that disproportionately affect employees on the basis of race or ethnic- ity, the employer must show that the standards are based on generally accepted medical criteria.

Title VII prohibits employer actions that discrimi- nate, by motivation or impact, against persons because of race. Title VII does not contain a defi- nition of “race,” nor has the Commission ad- opted one. For the collection of federal data on race and ethnicity, the Office of Management and Budget (OMB) has provided the following five racial categories: American Indian or Alaska Native; Asian; Black or African-American; Native Hawaiian or Other Pacific Islander; and White; and one ethnicity category, Hispanic or Latino. The OMB has made clear that these categories are “social-political constructs . . . and should not be interpreted as being genetic, biological, or an- thropological in nature.”

Title VII’s prohibition of race discrimination gen- erally encompasses:

• Ancestry: Employment discrimination because of racial or ethnic ancestry. Discrimination against a person because of his or her ancestry can violate Title VII’s prohibition against race discrimination. Note that there can be consider- able overlap between “race” and “national ori- gin,” but they are not identical. For example, discrimination against a Chinese American might be targeted at her Asian ancestry and not her Chinese national origin. In that case, she would have a claim of discrimination based on race, not national origin.

• Physical Characteristics: Employment discrimination based on a person’s physical characteristics associated with race, such as a person’s color, hair, facial features, height, and weight.

• Race-Linked Illness: Discrimination based on race-linked illnesses. For example, sickle cell anemia is a genetically-transmitted disease that affects primarily persons of African de- scent. Other diseases, while not linked directly to race or ethnicity, may nevertheless have a disproportionate impact. For example, Native

• Culture: Employment discrimination because of cultural characteristics related to race or ethnicity. Title VII prohibits employment dis- crimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech. For example, an employment decision based on a person having a so-called black accent, or “sounding white,” violates Title VII if the accent or manner of speech does not mate- rially interfere with the ability to perform job duties.

• Perception: Employment discrimination against an individual based on a belief that the individual is a member of a particular racial group, regardless of how the individual identi- fies himself. Discrimination against an individual based on a perception of his or her race violates Title VII even if that perception is wrong.

• Association: Employment discrimination against an individual because of his or her asso- ciation with someone of a particular race. For example, it is unlawful to discriminate against a white person because he or she is married to an African-American or has a multiracial child, or because he or she maintains friendships or otherwise associates with persons of a certain race.

• Subgroup or “Race Plus”: Employment dis- crimination against a subgroup of persons in a racial group because they have certain attri- butes in addition to their race. Thus, for exam- ple, it would violate Title VII for an employer to reject black women with preschool-age

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children, while not rejecting other women with

preschool age children.
• “Reverse” Race Discrimination: Title VII pro-

hibits race discrimination against all persons, including Caucasians. A plaintiff may prove a claim of discrimination through direct or circumstantial evidence. Some courts, however, take the position that if a white person relies on circumstantial evidence to establish a reverse

discrimination claim, he or she must meet a heightened standard of proof. The Commission, in contrast, applies the same standard of proof to all race discrimination claims, regardless of the victim’s race or the type of evidence used. In either case, the ultimate burden of persuasion remains always on the plaintiff.

Source: EEOC Compliance Manual, Section 15-II, http:// www.eeoc.gov.

Exhibit 6.8 EEOC’s National Origin Guidance

NATIONAL ORIGIN DISCRIMINATION

Whether an employee or job applicant’s ancestry is Mexican, Ukrainian, Filipino, Arab, American Indian, or any other nationality, he or she is entitled to the same employment opportunities as anyone else.

ABOUT NATIONAL ORIGIN DISCRIMINATION

National origin discrimination means treating some- one less favorably because he or she comes from a particular place, because of his or her ethnicity or accent, or because it is believed that he or she has a particular ethnic background. National origin dis- crimination also means treating someone less favor- ably at work because of marriage or other association with someone of a particular nationality.

• Employment Decisions. Title VII prohibits any employment decision, including recruitment, hiring, and firing or layoffs, based on national origin.

• Harassment. Title VII prohibits offensive con- duct, such as ethnic slurs, that creates a hostile work environment based on national origin. Employers are required to take appropriate steps to prevent and correct unlawful harassment.

Likewise, employees are responsible for report- ing harassment at an early stage to prevent its escalation.

• Accent Discrimination. An employer may not base a decision on an employee’s foreign accent unless the accent materially interferes with job performance. 


• English Fluency. A fluency requirement is only permissible if required for the effective perfor- mance of the position for which it is imposed. 
• English-only Rules. English-only rules must be adopted for non-discriminatory reasons. An English-only rule may be used if it is needed to promote the safe or efficient operation of the employer’s business. 
COVERAGE OF FOREIGN NATIONALS 
Title VII and the other anti-discrimination laws pro- hibit discrimination against individuals employed in the United States, regardless of citizenship, or those working for American companies in other coun- tries. However, relief may be limited if an individual does not have work authorization. 
Source: EEOC Compliance Manual, http://www.eeoc.gov. 


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Case 1

6.11, “EEOC’s Color Guidance.”) The EEOC noted that the Civil Rights Act did not define race (it was understood at the time of the passage of the law, given our country’s history and the recent and painful civil rights activity leading up to passage of the law, to include African-Americans and whites), but in light of recent trends, the EEOC undertook to bring some understanding to the matter in a world in which things had changed since passage of the act.

We now think of race under Title VII as a more inclusive concept. We applaud the EEOC’s recognition of this trend and have modified our approach accordingly. In the Alonzo v. Chase Manhattan Bank, N.A case, provided at the end of the chapter, you can see for yourself the struggle the courts had dealing with this issue when a Hispanic employee sued for national origin discrimination, then amended his complaint to include a claim for race discrimination. Compare the court’s analysis about Hispanics and race in Alonzo to the discussion of race versus ethnicity in Exhibit 6.4, “Hispanic: Race or National Origin—and Who Is Included?” Do they seem consistent to you?

Things have certainly changed dramatically in the 40-odd years since passage of the Civil Rights Act. But keep the previously mentioned poll in mind: 9 out of 10 whites under 30 believe African-Americans and whites are treated equally. With this mind-set, employers would be less likely to respond appropriately to claims of racial discrimination from nonwhite employees and thus increase the likelihood of liability under Title VII. This is only one of many such polls with similar results. Even in the midst of legalized segregation and Jim Crow, polls showed that whites thought blacks were treated equally. It demonstrates one of the reasons that the disappearance of race discrimination may not necessarily be as realistic in the near future as we would like to think, as per the 2009 poll men- tioned above.

In fact, researchers refer to the idea that whites think everything is fair for everyone, so nothing need be done to ensure equal opportunity anymore, as the “new racism.”24 As Congress noted in its resolution apologizing for slavery, because our unique racial history involved systemic, institutionalized, legal, and social race discrimination, we are left with enough of the vestiges to account for much of the racial differences we see reflected in the items above. If managers and supervisors do not realize that vestiges remain, they are likely to run afoul of the law. We see it in case after case after case. Keep in mind that employers do not need to engage in deliberate, intentional racial discrimination in order to violate the law and the law does not require this in order to find liability. That is why providing information here to address these matters is so important for making workplace decisions that avoid liability.

Despite this, clearly much progress has been made in the area of race discrimination in the workplace since Title VII was enacted. However, as men- tioned earlier, the extremely comprehensive, four-year, 1,400-page study of intentional workplace discrimination between 1975 and 1999, released by Alfred and Ruth Blumrosen in 2002,25 found that workplace discrimination against African-Americans is still the worst of all groups; “the seriousness of intentional

Case 2

job discrimination against black workers by major and significant industries is evident; and the ‘playing field’ is far from level. However, minorities increased their participation in the labor force by 4.6 million workers beyond the increase resulting from economic growth and increased their share of ‘better jobs’ as officials, managers, professionals, technical, and sales workers.” The study showed that 15 percent of African-Americans experience intentional workplace discrimination.

In addition, there are, in fact, companies that are doing just fine and understand the impact of race in the workplace and work to make sure they do not violate the law. The Wall Street Journal reported that after a study of 31,000 of their U.S. jobs showed discrepancies, Eastman Kodak Co. agreed to pay about $13 million in retroactive and current pay raises to 2,000 female and minority employees in New York and Colorado. The pay raise was not in response to a threatened lawsuit, as is generally the case. Employees had complained about it to supervisors the year before, so Kodak conducted the study and determined it would make the correction.26

One of the best ways we have found to address this gap in awareness that can lead to employer liability is to give you some of the history of race in our country. We have found in our own classrooms that most of our students fit quite neatly into that “9 out of 10” category. They come into the course think- ing everyone is treated equally and see little reason to still have Title VII in force. Until, that is, we show them documentaries on historical events like slavery, the Jim Crow era, and school desegregation riots leading up to its pas- sage and discuss this and the information in this introduction. Then they get it. They are astonished at how clueless (their term, not ours) they were about it all and how little they really knew about this history, yet how important it is to know in order to understand the law, where we are today, and how it im- pacts their actions in the workplace. It would take volumes to do it any real justice, but we will give you the most significant highlights leading up to pas- sage of Title VII, primarily to address racial discrimination in the workplace, so that you can see what contributes to some of the workplace situations re- sulting in employer liability.

Before we do this, however, we want you to read the Jones v. Horseshoe Casino & Hotel case, included at the conclusion of the chapter. It is a case in which you get to see how racial discrimination can play out in the workplace. We want you to read it before you proceed to the “Background” section below so you can have some sense of why the next section is such an important one for you to be aware of.

Background of Racial Discrimination in the United States

Chances are, the Jones case doesn’t make a lot of sense to you. You probably can’t figure out why, in this day and time, an employer would do such a thing and be so open and blatant about it. You likely think that if Jones was as good as the

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court said, a casino would be glad to get him. This makes perfect sense if you’ve never really thought about or been confronted with race discrimination. That’s why a bit of background is helpful. None of this makes any sense unless you understand where it comes from. The fact that this took place in Mississippi is not surprising, given its racial history.

History and its present-day effects account for much of the race discrimination we see manifested today. And make no mistake about it, our history regarding race has been a long, complex, and tortured one. Six months after the death of the erstwhile staunch segregationist, South Carolina Senator Strom Thurmond, in 2003, it was a national media event when a black woman announced she was his daughter and had been privately, but not publicly, acknowledged by him all her life. She had been the result of a union between Thurmond, then a 22-year-old lawyer living with his parents, and her mother, a 16-year-old maid in the house- hold.27 Despite the fact that the hallmark of Thurmond’s career had been support- ing racial segregation, including running for president on a segregationist “Dixiecrat” ticket, he had an acknowledged daughter by a black woman and was one of the first southern legislators to hire a black aide in the early 1970s. Complex indeed.

As you recall from the Title VII and affirmative action chapter, Africans arrived in this country in 1619, before the Mayflower. Their initial experience was as free people who were contracted as indentured servants. After the first 40 years or so, this changed as the need for cheap labor grew with America’s rapid expansion, and slavery came into existence. While a very small number of African-Americans were free, slavery as an integral and defining part of American life lasted for well over 200 years, until after the Civil War ended in 1865. With a slight pause (11 years) for Reconstruction after the Civil War, the next 99 years saw Black Codes and Jim Crow laws legalize and codify racial discrimination.

In many places, there were many more slaves than whites (South Carolina had an 80 percent slave population), so absolute control was necessary in order to prevent slave uprisings, which were a major concern for whites. Without having sufficient manpower to exercise this control physically, such control had to be imposed psychologically, as well. This was done quite systematically and with the intention of keeping the system of slavery in place forever. Each of the rules and regulations contained in the Slave Codes, and later, after Reconstruction, in the Black Codes, was designed to do this.

To give you an idea of the detail into which such measures went, a 2002 USA Today news article excerpted a quote from an 1822 South Carolina grand jury in response to complaints about slaves wearing clothes made from ordinary cloth. The grand jury said: “Negroes should be permitted to dress only in coarse stuffs [called “Negro cloth” and manufactured by WestPoint Stevens, today the United States’ largest producer of bed and bath textiles]. . . . Every distinction should be created between whites and the Negroes, calcu- lated to make the latter feel the superiority of the former.”28 “Drapetomania” was an actual “medical condition” doctors ascribed to slaves who wanted to

Chapter Six Race and Color Discrimination 273

run away and be free.29 Clearly the control was comprehensive, all- encompassing, and minutely detailed to accomplish this purpose. It is important to understand this so that you can recognize how insinuated into every aspect of life racism was in this country, and why there were bound to be vestiges long after slavery ended.

When Reconstruction ended, about 11 years after the Civil War was over, the Slave Codes were simply renamed “Black Codes” and used virtually as if slavery had never ended. This system of laws governing black and white relations was based on both law and social custom that was as ironclad as any law ever was. The system, adopted by either law or social custom all over the country, remained in place until the Civil Rights Act of 1964, and in some places well into the 1970s, constantly reasserting the institutionalized role of race in the United States. If you think this was a terribly long time ago, you’d probably be surprised to know that there are audio recordings of actual former slaves telling their stories of what life was like under slavery.30

But what do we really mean by “a system” and “the institutionalized role of race”? And why can’t we just all forget it and move on? Think back to the infor- mation in the prior chapters about how every facet of life was based on race. Doing so is helpful in trying to figure out why race is still such a persistent and pervasive issue in the workplace today.

Race governed every facet of life. In addition to the ways we have already set forth in earlier chapters, blacks were routinely discriminated against by be- ing forced to sit in the balconies of movie theaters or made to attend on days different from those when whites attended. Some fairs had “Negro days” on which African-Americans could attend, and some towns had “Negro days” for African-Americans to shop. Rather than be seated in restaurants, they were generally sent to the back door, where they ordered their food on a take-out basis long before take-out came to be. Staying in hotels was virtually out of the question, even if they had the funds to do so (keep in mind they were relegated to menial labor).

Although they paid full bus fare, in the South, African-Americans had to sit in the back of the bus. They could not simply pay their fare and walk to the back of the bus, as this would mean they were in close contact with whites. Rather, they were required to pay their fare in the front, get off the bus, and reenter through the back, rain or shine. If whites wanted or needed blacks’ seats, African- Americans had to give up their seats even though they were full-fare-paying passengers.

African-Americans could not testify against whites in court; look whites in the eye; stay on the sidewalk when whites passed by; be called “Mr.,” “Mrs.,” or “Miss”; or contradict anything a white person said. The simple act of registering to vote could cost an African-American his or her job, family, home, or life. It was not until the Voting Rights Act of 1965 that African-Americans received full voting rights in the United States. Breach of Jim Crow law or social policy by African- Americans resulted in swift retribution, up to and including death—generally by lynching for males—an event that was often attended by whole families of

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whites, including children, and treated as a festive family outing, complete with picnic baskets.

In historical terms, this was not that long ago. If you were not alive during that time, then most certainly your parents or grandparents were. Remember that the system officially ended only in 1964, and in many places it, or its effects, lingered on long after—in some places, even until today. For instance, in Atlanta, retiring black police officers are suffering right now because of the police department’s racial policy that lingered until the 1970s, which prevented black officers from contributing to a whites-only pension fund. This has resulted in hundreds of dollars a month less in pension payouts to retiring black officers. Along with the difference in pensions, black officers were not permitted to partner with white officers, were made to dress in separate dressing rooms in separate buildings, and were not permitted to arrest white suspects.31 There are other examples of present-day vestiges:

• Between 2000 and 2004, 16 major insurance cases were settled, covering about 14.8 million policies sold by 90 insurance companies between 1900 and the 1980s to African-Americans who were charged more, as was the custom of the day, simply because they were black. The settlements amounted to more than $556 million. During the high-water mark for burial insurance, as it was known, American insurance companies held policies worth more than $40 billion. According to the Federal Trade Commission, some companies, like Metropolitan Life, built their businesses largely on such policies, which not only charged African-Americans higher premiums, but were specifically targeted to poor African-Americans and often paid out less in benefits than the premiums paid in. 


• In 2006, the U.S. Supreme Court unanimously held that the term “boy” used by white managers at an Alabama Tyson Foods plant to refer to black employees could, alone, be used as evidence of workplace race dis- crimination. The term is one used in the slave and Jim Crow era to refer to black men.32 


• In 2006, the Delaware Masons fraternal organization signed a compact to end 150-plus years of racial separation. In 12 southern states, white Masons still do not officially recognize black Masons as their brothers. 


• In early 2007, nearing the 400th anniversary of the founding of Jamestown, America’s first permanent English settlement and an entry point for those coming from Africa to be enslaved, the Virginia House of Delegates ex- pressed “profound regret” for its role in the slave trade and other injustices against African-Americans and Native Americans. Nine members did not cast ballots. In 2001, the Virginia legislature had expressed “profound re- gret” for its role in the discredited “science” of eugenics that led to the ster- ilization of well over 6,000 Virginians between 1924 and 1979 under the Racial Integrity Act and the Sterilization Act, in the name of purifying the 


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white race. Virginia’s apology was later joined by apologies in Florida, Alabama, North Carolina, and New Jersey. The U.S. Congress is also consid- ering such a proposal.

• In 2008—after years of refusing to do so, but after doing so for Native Americans, Japanese detention camp detainees, and Hawaiians for the overthrow of their government—the U.S. House of Representatives passed a resolution apologizing for slavery, Jim Crow, and its present-day impact on blacks. The Senate passed a similar resolution the next year.

Notice that this is not dull, dry history from eons ago. This is now. We are living the history as we speak. In fact, the last widow of a Civil War veteran just died in May 2004, which is certainly in your lifetime.33

We again provided this picture of pre-1964 life in this chapter and in this con- text because in order to understand why the issue still persists today, it is impor- tant to get a picture of what it meant in everyday life for all concerned. It was not until passage of the Civil Rights Act of 1964 that this country was first forced to deal with African-Americans on anything even approaching an equal basis. For virtually their entire history in this country, African-Americans were dealt with as inferiors, with societal laws and customs totally built around that approach. Then came the Civil Rights Act of 1964, attempting to change this 3001-year history overnight. You might now understand a bit better why we have been struggling with the issue ever since.

While African-Americans were visibly fighting for civil rights and an end to segregation, their struggle for civil rights highlighted for other groups that they also had received poor treatment in this country. The struggle for civil rights, in part, helped some of those permitted to realize their full poten- tial and become the successful and productive members of society they longed to be. The Irish went from being so reviled that store windows had signs say- ing “No Dogs, No Irish,” to having John F. Kennedy become a revered first Irish and Catholic president of the United States. Other groups, like Native Americans, Hispanics, and Asians were, for various reasons, castigated, vili- fied, ostracized, marginalized, and discriminated against by the greater soci- ety. They dealt with it in different ways. Asian Americans are now the minority with the highest income, but also with an increasing number of discrimination claims.34

But a rising tide lifts all boats, so once the Civil Rights Act was passed, it benefited all groups by protecting them from discrimination. As was stated about Supreme Court Justice Thurgood Marshall, who argued, and won, the Brown v. Board of Education case that began to dismantle racial segregation in our country by outlawing segregated public schools, “He created a new legal landscape, where racial equality was an accepted principle. He worked in be- half of black Americans but built a structure of individual rights that became the cornerstone of protections for all Americans.”35 (See Exhibit 6.9, “Profile: Thurgood Marshall.”)

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Exhibit 6.9 Profile: Thurgood Marshall (1908–1993), Associate Justice of the U.S. Supreme Court, 1967–1992

You probably had no idea how different your life would be had it not been for Justice Thurgood Marshall.

Thurgood Marshall was born in Baltimore, Maryland, the son of a steward and a school teacher. He graduated from Lincoln University and from Howard University Law School in 1933. While at Howard, Marshall attracted the attention of Dean Charles Houston, a noted black lawyer and chief legal planner for the NAACP. When he met Marshall, Houston was about to begin a campaign challenging the constitutionality of racial segrega- tion laws in the United States. After law school, Marshall practiced law for a brief period, joined the NAACP as a staff attorney, then took over as chief counsel after Houston in 1938.

When Marshall assumed leadership of the NAACP legal program, racial segregation pervaded every aspect of life in the United States—its legality was hardly questioned, and blacks were not consid- ered full partners in the American republic. The Thirteenth, Fourteenth, and Fifteenth Amendments and the laws enacted to give meaning to their promise of black equality had been emptied of con- tent by decisions of the U.S. Supreme Court. The most influential decision, Plessy v. Ferguson, 1896, was understood to give broad approval to provid- ing separate public facilities and services for blacks. The political power of the southern states was such that neither Congress nor the president would sup- port legislation to outlaw lynching, much less to end racial segregation. Marshall and his colleagues determined, therefore, to concentrate their efforts on the courts. Their early cases aimed at docu- menting the inequalities—for example, in per-pupil spending and teacher pay—that made the segre- gated public facilities and education offered to blacks by the southern and border states not equiv- alent to those provided to whites. It was thought that such litigation might lead to significant short- term improvement in the facilities with which blacks were provided. However, the NAACP’s ulti- mate goal and grand design were to persuade the Supreme Court that racial segregation as such was

unconstitutional, that regardless of the facilities offered to blacks, it inevitably relegated them to a position of inferiority and second-class citizenship.

After World War II, the pace of litigation quick- ened, and the Supreme Court struck down particu- lar instances of racial discrimination in interstate travel, primary elections, housing, and criminal jus- tice. Eventually litigation efforts were concentrated on education. By 1954 when Marshall argued Brown v. Board of Education, dealing with public school seg- regation, extensive documentation had been accu- mulated demonstrating that, as the Court ultimately found, “separate educational facilities are inherently unequal.” Soon after, civil rights lawyers won a series of cases that made clear that Brown had undermined any constitutional basis for the government to make invidious distinctions in the allocation of goods, ser- vices, or benefits on the basis of race.

During his years with the NAACP, Marshall earned a reputation as a tough, shrewd legal tacti- cian with a deceptively easygoing personal style. Southern senators attempted to block his appoint- ment to the U.S. Court of Appeals in 1961, but the nomination was confirmed in 1962. In 1965, President Lyndon B. Johnson named Marshall solicitor-general, and in 1967 Johnson appointed him an associate justice of the Supreme Court.

On the Supreme Court, Marshall usually sup- ported positions taken by civil libertarians, equal rights advocates, and those who construe the proce- dural guarantees of the Bill of Rights to protect criminal defendants. In the 1970s when many ground-breaking liberal decisions of the later 1950s and the 1960s were restricted by a new conservative majority of justices appointed by President Richard M. Nixon, Marshall became one of the Court’s more vocal dissenters, especially in cases such as the Bakke decision outlawing reverse racial quotas, where he believed the Court had retreated from a commit- ment to eliminate racism in public life.

Source: Adapted from Michael Meltsner, “Thurgood Marshall,” Collier’s Encyclopedia, vol. 15. Copyright © 1983 by Macmillan Educational Company. Reprinted by permission of the publisher.

Race: Putting It All Together

When race has been as ingrained in a culture as it has been in the United States, it is predictable that it is taking a rather long while to rid the workplace of the ves- tiges of race discrimination. The effects of racially based considerations and deci- sions linger long after the actual intent to discriminate may have dissipated.

As we saw earlier the U.S. Department of Labor Glass Ceiling Studies in 1991 and 1995 of barriers to full management participation in the workplace by women and minorities found that minorities had made strides in entering the workplace, but a “glass ceiling” exists beyond which minorities rarely progress. The study found that minorities plateau at a lower corporate level than women, who plateau at a lower level than white males.

According to the studies, monitoring for equal access and opportunity was al- most never considered a corporate responsibility or a part of the planning and developmental programs and policies of the employer, nor as part of participation with regard to senior management levels. Neither employee appraisals nor total compensation systems were usually monitored. Most companies had inadequate records regarding equal employment opportunity and affirmative action responsi- bilities in recruitment, employment, and developmental activities for management- level positions.

Such factors militate against serious consideration of full participation by all sectors of the work population and prevent the employer from being presented in the best light should lawsuits arise. If an employer analyzed and monitored work- place information based on the Glass Ceiling considerations, much race discrimi- nation could be discovered and addressed long before it progressed to the litigation stage. As you saw in the affirmative action chapter, that is the approach that the law would prefer employers to take so that liability can be avoided altogether.

The cases in this chapter are specifically chosen to help you learn to recognize race discrimination claims when you see them coming, before they turn into liti- gation. Pay particular attention to the facts in the cases and the case questions following them. They are specifically developed to make you think about the is- sue as a manager would so that you will be able to practice analyzing situations for potential liability as they arise and become familiar with issues in this area with which you may not have experience. After thoroughly reading and thinking about the cases, you should feel much more comfortable about being a manager or supervisor who is able to spot trouble in this area and do what needs to be done to avoid it.

General Considerations

Title VII was enacted primarily in response to discrimination against African- Americans in this country, but the act applies equally to all. Though, as we saw in the chapter on affirmative action, there are times when it appears the law does not equally protect rights of nonminorities; this is done only in a remedial context

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with strict safeguards in place. The McDonald v. Santa Fe Transportation36 case demonstrated that racial discrimination may occur against whites also and is equally prohibited under Title VII. In that case, both black and white employees stole merchandise that was being transported by the company they worked for. The white employee was terminated, while the black employee was disciplined. The white employee sued for race discrimination and won. It may seem strange to think that it took a U.S. Supreme Court case to determine that Title VII protects whites as well as blacks, but keep in mind the history we discussed leading up to passage of the Civil Rights Act. Discrimination against whites was never contem- plated since it was not an issue.

We have often heard the perception from our students and employees in the business world that “all someone has to do is yell discrimination, and they win a case.” This is not so. It takes far more than alleging discrimination to win a case under Title VII. It is necessary to present credible evidence of discrimination in order to succeed. This can be done directly, by presenting evidence that the em- ployer did or said something racially negative, or indirectly, by way of the dispa- rate impact requirements discussed in the toolkit chapter. In Phongsavane v. Potter,37 an Asian employee was unable to prove the discrimination she alleged, and thus lost her case. She complained that she was not given as much overtime as she had wanted, and she alleged it was because she was Asian, but she gave no evidence to support the allegation, and the employer could show that the decision was not based on race. This is one of the reasons that employers should not fear Title VII claims. Either there is a viable basis for discrimination or there is not. If there is not, the employee’s alleging discrimination does not make it true and no liability will attach to the employer. Of course, an employer still must use re- sources to counter the claim, which is another reason why a “best practices” ap- proach is always best. It lessens the likelihood that employees will file claims because they perceive fairness by the employer on an ongoing basis.

Recognizing Race Discrimination

Often, one of the most difficult things for a manager is recognizing race discrimi- nation when it presents itself. The latest EEOC statistics for FY 2010 indicated that race remains one of the most frequent types of claim filed with the agency, with 35.890 percent of the total claims filed being on the basis of race. Many of these claims involve systemic race discrimination affecting hundreds of employ- ees. That is, the glass ceiling is still at work, denying full workplace participation to minorities. Just within the past couple of years, the EEOC has settled class action suits with Abercrombie & Fitch ($50 million), Consolidated Freightways ($2.75 million), Milgard Windows ($3.37 million), Home Depot ($5.5 million), Carl Buddig ($2.5 million), Local 28 Steelworkers’ Union ($6.4 million), and Super- cuts ($3.5 million). All of these cases involve widespread workplace discrimina- tion in hiring, promotions, training, and other aspects of work life. Cases of systemic glass ceiling–type discrimination that actually go to trial are becoming increasingly rare. Even if, as was the case with Abercrombie & Fitch, the

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employer settles with the EEOC for a whopping $50 million, they still may be better off than taking the case to trial where higher compensatory damages and punitive damages are possible.

Often employers are held liable for race discrimination because they treated employees of a particular race differently without even realizing that they was building a case of race discrimination for which they could ultimately be liable. Sometimes it is something seemingly small or subtle, but given the stage we are playing on, with the history we presented to you, it can be perceived as discriminatory. Remember Sen. Joseph Biden’s January 2007 statement about his 2008 presidential opponent Barack Obama as the “first mainstream African- American who is articulate and bright and clean and a nice-looking guy”? Though he said he did not mean to offend, because of the history we provided in this and other chapters, you should be able to recognize why his statement would cause a stir. At the very least it offered insight into his questionable per- ception of blacks—keep in mind these are people who had run for the highest office in our government. As the Vaughn v. Edel case demonstrates, provided for your review, intent may be established by direct evidence of discrimination by an employer even when the employer may discriminate for what it considers to be justifiable reasons. In Vaughn, a manager told a supervisor not to have any confrontations with a black female employee about her work after she asked a member of the legal staff if she thought a conversation she had with her supervi- sor sounded discriminatory. Two years later when she was terminated for poor performance, she sued and alleged race discrimination in that she was not given proper feedback that would have allowed her to better her performance. As you read the Vaughn case, think about whether you would have handled things dif- ferently to avoid the result the court reached here. Vaughn is the basis for Open- ing Scenario 2.

2 Scenario

Case 3

Chapter Six Race and Color Discrimination 279

3 Scenario

An employer who has not considered the issue of race may well develop and implement policies that have a racially discriminatory impact without ever intend- ing to do so. The Bradley v. Pizzaco of Nebraska, Inc., d/b/a Domino’s Pizza38 “no-beard” case is a good example of this. As you may recall from an earlier chapter, in Bradley, the employer had a “no-beard” policy requiring employees to be clean shaven. The employee, a black pizza delivery driver, told the employer he could not shave without severe discomfort. The employer told him he must shave, and when he did not, he was terminated. The employee sued for race dis- crimination and won. The court determined that the condition the employee had was pseudofolliculitis barbae (PFB), which occurs in about 50 percent of the black male population, and about 4 percent of the white male population. Thus, the policy had a disparate impact on black males and had to be proved to be a business necessity if the employer was to keep the policy. The employer could not show this since being clean shaven is not a requirement for being able to drive a pizza delivery truck.

Bradley is also a good example of why disparate impact cases must be recog- nized if Congress’s legislative intent of ridding the workplace of employment discrimination is to be at all successful. Bradley is the basis for Opening Scenario 3.

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Case 4

Bradley also clearly demonstrates why the more an employer knows about diverse groups, the better. Here, where the employer was not aware of the impact of PFB on at least 50 percent of the black male population and less than 4 percent of the white male population, it could have saved the employer from liability. Bradley demonstrates just how important it is to simply be able to recognize race discrimination when you see it. If you, as a manager, never had to deal with PFB (as 95 percent of the white male population and certainly all of the white female population and other ethnicities need not do), you would be blissfully unaware of the impact of your policy on 50 or so percent of the black male population (and only about 5 percent of the white male population).

How would you avoid this situation? As a manager faced with an unfamiliar situation, your favorite eight words should be, “Let me get back to you on that.” This informs the employee that you have heard her or his concern and will take it seriously. It then gives you time to find out what you need to know to make an informed decision. If it is something you do not know, ask the employee for more information, check the Internet, use resources around you, but do not simply react. If time is not a factor, there is no need to rush into making a decision on something about which you may be clueless.

If the employer in Bradley had simply asked the employee to provide docu- mentation for his condition from a reputable and reliable source, such as a derma- tologist or barber, the outcome might have been different. Simply taking the time to treat the employee’s concern as legitimate (rather than merely dismissing it because it was not something with which the manager was familiar) and trying to seek alternatives would have made all the difference.

The employer would have had a basis for providing an exception to the rule in these particular circumstances, while still maintaining the general rule for other employees. While not satisfied that everyone does not have to obey the policy, the employer at least would feel satisfied that sufficient justification was provided to excuse this employee. Other employees seeing the employee treated differently would be less likely to be resentful, knowing that the difference in treatment was based on justifiable medical reasons available to anyone with the same condition.

If the employer had been flexible, rather than dismissing the employee’s asser- tions out of hand simply because it was not familiar to him, he undoubtedly could have avoided the result in this case. As a manager, make sure you try to consider all angles before making a decision. It is especially important to consider the realities of those who belong to groups with which you may not be familiar. Again, don’t be afraid to seek help or information from those in a better position to know—starting with the employee for whom it is an issue. It may help you avoid a much bigger problem later. (For more examples of manifestations of dis- crimination, see Exhibit 6.10, “Names and ‘Hello’ Can Keep You Out.”)

Chandler v. Fast Lane, Inc., provided for your review, is another unusual mani- festation of racial discrimination that might well slip by a manager, just as it did in this case. In Chandler, the action was brought by a white manager who was trying not to discriminate when her company wanted her to do so. You should be aware that this also is covered by Title VII.

Chapter Six Race and Color Discrimination 281

Exhibit 6.10 Names and “Hello” Can Keep You Out

Two research studies have shown just how perva- sive, yet subtle, race discrimination can be for employees and job applicants.

In the first, researchers from the University of Chicago and MIT conducted a study in which they sent out nearly 5,000 fictional résumés in response to 1,300 newspaper ads for jobs in Chicago and Boston. To each ad they sent two sets of two résumés: one identical set had a résumé with a “traditionally black” name and one with a “traditionally white” name; the other set of résumés had more experience, and again, one had a “traditionally black” name and the other a “traditionally white” name. “Traditionally black” names included Rasheed, Kareem, Leroy, Tyrone, Ebony, Kenya, LaTonya, Tanisha, Keisha, Hakim, Aisha, and Tamika. “Traditionally white” names in- cluded Greg, Jill, Allison, Emily, Laurie, Sarah, Bren- dan, Brad, Meredith, Kristen, Matthew, and Brett.

Applicants with “traditionally white” names received 50 percent more callbacks than those with “traditionally black” names. The researchers found that increasing credentials resulted in a better chance of whites being called back more often, but not African-Americans. Applicants with “tradition- ally white” names were called back at a rate compa- rable to having eight additional years of experience. The result was the same across occupations, indus- tries, and employer size. Federal contractors or oth- ers who indicated they were equal employment opportunity employers were just as likely to discrim- inate as other employers, according to the research- ers. Having more upscale addresses helped whites, but not African-Americans. The researchers con- cluded that “differential treatment by race still appears to be prominent in the U.S. labor market.”

In the second study, Dr. John Baugh, a professor of education and linguistics at Stanford University, presented over 300 university students recordings of voices saying a single word. The students were asked to identify the ethnicity of the speaker. Over 80 percent were able to do so correctly, based solely on hearing the single word, “hello.”

Baugh, black, became interested in linguistic profiling when he placed several calls in response to

newspaper ads for housing, but when he showed up at the property, he was always given reasons why it could not be rented to him. He suspected that the phenomenon was because he used his pro- fessional voice on the phone and the landlords thought he was white, but he showed up and was black. He set out to investigate his suspicions. Dr. Baugh is particularly adept at voices, having grown up in Philadelphia and Los Angeles with many different dialects. He placed over 100 calls inquiring about a rental property, some using his professional voice, and others his “ethnic dialects.” He used the exact same sentence each time he called, and only varied his voice and intonation. Dr. Baugh found that when using his “white” voice, he received 50 percent more callbacks.

After James Johnson suspected that the same thing happened to him while looking for an apart- ment in San Francisco, he reported it to the local fair housing agency, the Eden Council for Hope and Opportunity. Eden used five callers to inquire about housing, leaving messages. Three of the callers “sounded white” and two “sounded black.” The “white” callers’ calls were returned within hours. The “black” callers’ calls were not returned. The counselor who ran the investigation said it was “pretty blatant.” Shanna Smith, executive director of the National Fair Housing Alliance, says it is a familiar practice for hous- ing, banking, and other industries, such as insurance.

Sources: Marianne Bertrand and Sendhil Mullainathan, “Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimina- tion,” 2004, http://economics.harvard.edu/faculty/ mullainathan/files/emilygreg.pdf; Patrice D. Johnson, “Linguistic Profiling,” The Black Commentator 1 (April 5, 2002), http://www.blackcommentator.com/linguistic_ profiling_pr.html; Steve Osunsami, “When Voice Recogni- tion Leads to Bias” ABC News.com, December 6, 2001, http://abcnews.go.com/WNT/story?id=130504&page=1; “The Color of Voice: How Inferring Race Can Become Discrimination,” ABC News.com, February 6, 2002, http://abcnews.go.com/sections/Downtown/2020/ downtown_linguisticsprofiling_020205.html.

282 Part Two Regulation of Discrimination in Employment Racial Harassment

In addition to an employer being liable for race discrimination under Title VII, the employer also can be liable for workplace racial harassment. Harassment claims filed with the EEOC have been increasing, particularly incidents involving nooses, the “n-word,” and other racial epithets. “It is shocking that such egregious and unlawful conduct toward African-American employees is still occurring, even increasing, in the 21st century workplace, more than 40 years after enactment of the landmark Civil Rights Act of 1964,” said David Grinberg of the EEOC.39 The Louisiana House and Senate recently unanimously passed a bill outlawing public display of a hangman’s noose with the intent to intimidate someone. The bill was signed into law by Governor Jindal in 2008. According to the EEOC, harassment claims have more than doubled since the early 1990s, from 3,075 in fiscal year 1991 to about 7,000 in 2007, with race the most frequently alleged basis.40 As EEOC general counsel Eric Dreiband said, “As blatant discrimination decreases, other areas like harassment increase.”

To hold an employer liable for racial harassment, the employee must show that the harassment was (l) unwelcome, (2) based on race, and (3) so severe or pervasive that it altered the conditions of employment and created an abusive environment, and that (4) there is a basis for imposing liability on the employer. The employer is re- sponsible for such activity if the employer himself or herself is the one who perpe- trates the harassment, or if it is permitted in the workplace by the employer or supervisory employees. For instance, in January 2008, the EEOC announced a settle- ment with Lockheed Martin for $2.5 million for claims that it allowed a black electri- cian to be “severely harassed,” including, among other things, threatened with lynching and called the “n-word” while working on military aircraft at various places he was assigned all over the country. One of the harassers was a supervisor, and though the employer knew, no discipline was imposed and the harassment continued unabated.41 This is the largest settlement the EEOC has ever obtained for a single employee in a racial harassment case, and one of the largest for any single employee.

Actions for racial harassment, like those of race discrimination under Title VII, may be brought under the same alternative statutes as race discrimination, as appropriate—that is, the post–Civil War statutes, state human rights or fair employment practice laws, or constitutional provisions.

In Daniels v. WorldCom Corp.,42 the two black employees reported being sent racially charged e-mails through their work computer. The court said that racial harassment has as its basis the employer imposing on the harassed employee dif- ferent terms or conditions of employment based on race. The employee is required to work in an atmosphere in which severe and pervasive harassing activity is directed at the employee because of the employee’s race or color. However, the employer took prompt, corrective remedial action to address the situation, so the court found no liability.

As Daniels demonstrates, the employer’s 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 to take immediate corrective

action, if necessary, after investigation. An employer must do this to avoid liability. The case also demonstrates how important it is for a manager to keep up with changes that result in new and different ways to harass. In Daniels, the harassment was accomplished by e-mail., but because the employer took immediate corrective action, liability was avoided.

Keep in mind that an employer’s prompt response to harassment is impor- tant. In a recent case in which the EEOC sued the employer for workplace racial harassment, the employer ended up paying a $1.8 million settlement despite the fact that in responding to the racial harassment it had called the police, photographed the “racist graffiti,” offered rewards, placed undercover employees in the plant, hired handwriting analysts, sent employees to diversity training, increased plant security, and sought the help of the FBI. The graffiti continued to appear, yet declined to a large extent “after the company started taking the remedial steps and the litigation was in full swing.” The EEOC said that the company could have stopped the harassment earlier if it had wanted to. The company also was required to take preventive measures including adopting a policy against racial harassment and instituting camera monitoring of its facilities, training managers and employees, and periodic reporting to the EEOC on racial harassment complaints.43

In the Henderson v. Irving Materials, Inc. case,44 it is clear that racial harass- ment may be established by piecing together many things that in and of them- selves may seem insignificant but, when taken together, as they must be for racial harassment, create for the harassee a very different workplace than for those not being harassed. This is extremely important for employers to keep in mind, as it may not be one big harassing act that causes liability, but rather, many small ones. That is why staying on top of things and dealing with them as they arise is so very important. In Henderson, a black employee was subjected to a number of incidents at work, including racial epithets, threats, greasing of his truck, dead mice placed in his truck, and the buttons cut off his uniform, by two of his white co-workers. Several of the incidents were witnessed by their super- visor. The court found that though some of the events, in isolation, may not qual- ify as harassment, when taken in the total context of the employee’s experience as the first black hired to work there and in the greater context of race in our country, they constituted racial harassment.

A Word about Color

Detroit DJ and promoter Ulysses “DJ Lish” Barnes was totally surprised when a furor erupted over the “Light Skin Libra Birthday Bash” at Club APT he sched- uled for October 2007. The plan was to allow light-skinned African-American women to get into the party for free. An Internet blitz led him to change his mind and he canceled the event. “I made a mistake,” Barnes said. “I didn’t think there would be a backlash.”

We can’t imagine why not. As an African-American, very brown at that, Barnes would certainly have been aware that skin color has a long and painful

Chapter Six Race and Color Discrimination 283

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Exhibit 6.11 EEOC’s Color Guidance

WHAT IS “COLOR” DISCRIMINATION?

Title VII prohibits employment discrimination be- cause of “color” as a basis separately listed in the statute. The statute does not define “color.” The courts and the Commission read “color” to have its commonly understood meaning—pigmentation, complexion, or skin shade or tone. Thus, color dis- crimination occurs when a person is discriminated against based on the lightness, darkness, or other color characteristic of the person. Even though race and color clearly overlap, they are not synonymous. Thus, color discrimination can occur between per- sons of different races or ethnicities, or between persons of the same race or ethnicity.

EXAMPLE 1. COLOR-BASED HARASSMENT

James, a light-complexioned African-American, has worked as a waiter at a restaurant for over a year. His manager, a brown-complexioned African-American,

has frequently made offensive comments and jokes about James’s skin color, causing him to lose sleep and dread coming in to work. James’s requests that the conduct stop only intensified the abuse. James has been subjected to harassment in the form of a hostile work environment, based on his color.

EXAMPLE 2. COLOR-BASED EMPLOYMENT DECISIONS

Melanie, a brown-complexioned Latina, works as a sales clerk for a major department store. She applies for a promotion to be the Counter Manager for a major line of beauty products, but the employer de- nies her the promotion because the vendor prefers a “light skinned representative” to manage its prod- uct line at this particular location. The employer has unlawfully discriminated on the basis of color.

Source: EEOC Compliance Manual, section 15-III, http: //www.eeoc.gov/policy/docs/race-color.pdf.

history in the African-American culture, stretching back to a time when lighter blacks were given jobs in the slave owner’s home, while darker blacks worked the fields. This often resulted in better treatment and the pitting of one group against the other. Later, after slavery ended, the division stuck and “the paper bag test” was used as a basis for allowing entrée to everything from schools to social organizations. If your skin was any darker than a brown paper bag, you were excluded.

Color has been a divisive issue for as long as African-Americans have been in this country, and it is still with us today. As other ethnicities have joined the mix, it is clear that color is an issue with them also. Lighter-toned Hispanics, East Asians, and Asians, among others, all have experienced serious color issues within their cultures. While you may not think that you care about color, research indicates that we tend to feel more comfortable with those most like ourselves, and one of the ways this is manifested is through color discrimination.

Now you have an idea of why color is one of the five categories included in Title VII as a prohibited basis for discrimination. (See Exhibit 6.11, “EEOC’s Color Guidance.”) However, despite the findings reflected in Exhibit 6.12, “Light and Dark,” the first color discrimination case was not decided under Title VII until 1990.45 The number of cases has since steadily grown.

Chapter Six Race and Color Discrimination 285

Exhibit 6.12 Light and Dark

• The National Survey of Black Americans across the country, published in the American Journal of Sociology, found that “the fairer one’s pigmenta- tion (skin color), the higher his or her occupa- tional standing.” Researchers found that a light-complexioned black, on average, had a 50 percent higher income than darker African- Americans, regardless of educational, occupa- tional, or family background.1 


• We are proud to say that one of our students, psy- chology doctoral student (now a newly minted PhD!) Matthew Harrison, received national atten- tion (including by the EEOC; see Exhibit 6.6) when he presented at the national meeting of the Academy of Management results of a first-of-its- kind study indicating that dark-skinned African- Americans face a distinct disadvantage when applying for jobs even if their résumés are better than those of lighter-skinned African-Americans. Other studies had been conducted on colorism, 
Keith, V.M. and C. Herring, “Skin Tone and Stratifica- tion in the Black Community,” American Journal of Sociology, v. 97, no. 3 (Nov. 1991), pp. 760–778. 


but Harrison was the first to specifically examine how colorism operates in workplace hiring. He used the same photo, but had the skin tone ma- nipulated to dark, medium, or light with Adobe Acrobat. A light-skinned man with a bachelor’s degree and minimal experience was consistently chosen for a job over a dark-skinned man with an MBA and managerial experience when evaluators were presented with their résumés.

• A law and economics professor at Vanderbilt University looked at a government survey of 2,084 legal immigrants to the United States from around the world and found that even tak- ing into consideration virtually all other factors that could affect wages, those with the lightest skin earned an average of 8 to 15 percent more than similar immigrants with much darker skin. Economics professor Shelly White-Means of the University of Tennessee at Memphis said the study shows there is a growing body of evi- dence that there is a preference for whiteness in America that goes beyond race.

1 Scenario

After Title VII was enacted, the country started out with such severe race issues that it was not until later that the fine-tuning of looking at color discrimination came along—even though the color issues had been around as long as race had. Be aware that while we tend to be faced with race discrimination where the discrimi- nator is one race and the discriminatee another, with color discrimination that is not necessarily the case. Often the discrimination is by people of the same race. In several cases, both the party alleging discrimination and the alleged perpetrator of the discrimination have been black. Employers should not miss the possibility of this legal liability by thinking there can be no discrimination since two people of the same race are involved. This is why in Opening Scenario 1, Joan is doing more than acting unprofessionally toward Mary by constantly making comments about Mary’s skin color. Joan is violating Title VII.

If you think color doesn’t matter, think about whether it was a coincidence that the first-ever black Miss America, in 1984, Vanessa Williams, was light brown, with green eyes and long hair. As recently as 1984, America was not ready for Miss America to be a darker brown with short, kinky natural hair. It didn’t appeal to the nation’s cultural sensibilities of beauty. That is why African- Americans and other ethnic groups began, and still hold, their own beauty

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pageants (e.g., “Miss Black America” pageant, “Miss Latina America” pageant, “Miss Asian America” pageant). It is not for purposes of self-segregation. Rather, it is to have a pageant that reflects the standards of beauty and talent that arise from, and are appreciated by, the group itself rather than those of the larger soci- ety that may not reflect the group’s own standards.

However, the reality is that it was also against the rules for nonwhites to be in the main pageants. African-Americans were not allowed into the Miss America pageant until after the Civil Rights Movement in the 1960s. It was not until 1945 that they even had someone Jewish, and it was a very big deal when Bess Myerson won the crown.

You may recall the brouhaha during the 2008 presidential election when sev- eral comments were made about candidate Barack Obama only getting as far as he did as an African-American presidential candidate because he was light skinned. One of the statements was made by Senator Harry Reid, who was the majority leader of Obama’s own Democratic Party.46

When several of the Hemmings who claimed to be the descendants of the 38-year-long relationship between revered U.S. President Thomas Jefferson and his slave Sally Hemmings appeared in public and looked just as white as many of their white Jefferson kin, there was initially widespread public disbelief. If color did not matter, this simply would not have occurred.

In his book Ace of Spades,47 David Matthews, who has a Jewish mother and African-American father and who looks white, gives a vivid and gut-wrenching portrayal of growing up in Baltimore, Maryland, with his dad (his mother left when he was an infant), walking the tightrope of race by passing for white. He did this because even as a child, he could clearly see how much better whites were treated than African-Americans, even by teachers.

If you don’t think you ever notice color, think about who comes to mind when I ask you about African-American actresses (Halle Berry?) or performers (Beyoncé?) Both are light. There are certainly other famous actresses and enter- tainers, but chances are, these quickly came to mind. Not only that, we would likely agree that they are both beautiful (or, as my male students would say, “hot”). Whoopi Goldberg was the first black actress to win an Oscar since 1939, but chances are, that is not who came to mind.

Also, notice how different your thoughts are when you think of black actors. Chances are, you are more likely to think of a browner (and older) male. JayZ? Lawrence Fishburne? Denzel Washington? Just keep in mind that we do notice color, whether it registers consciously or not.

Don’t misunderstand. There is nothing wrong with this, per se, but just keep it in mind as you make decisions in the workplace. As we see in Exhibit 6.12, research shows that color can matter a great deal. Whether or not you agree with the idea that color matters, the point is that skin color exists and has a value (negative or positive) in our society that may be reflected in the workplace. Make sure you are aware that Title VII prohibits discrimination on the basis of color and be mindful of the subtle, though not necessarily conscious, role it may play in how we deal with others.

Management Tips

Race discrimination can seem elusive. Many of us tend to think it no longer exists, or that others feel as neutral as we do about race. That is not necessarily so. Because a manager can be unaware of the presence of race discrimination, he or she can miss it until litigation arises. Think back to the Patterson case discussed in the toolkit chapter. Recall that Patterson worked for the bank for 10 years without a promotion and finally sued for race discrimination when she was laid off. Remember that many of the things Patterson alleged as part of a discriminatory pattern of treatment toward her would have been insignificant in and of themselves. However, taken together, the list becomes quite significant. Be aware of what goes on in the work- place and “don’t miss the forest for the trees.” The following tips may prove useful:

LO6 •

Believe that race discrimination occurs and be willing to investigate it when it is

alleged.

• Make sure that there is a top-down message that the workplace will not toler- 
ate race discrimination in any form. 


• Don’t shy away from discussing race when the issue arises. Be open to learning 
and sharing. There are many resources you can use, including the Internet and 
books on race. 


• Provide a positive, nonthreatening, constructive forum for the discussion of 
racial issues. Don’t let the only time a discussion of race arises be in the midst 
of an allegation of racial discrimination. 


• Be aware of cultural differences that may be connected, at least in part, to race, 
when doing things as simple as deciding how to celebrate special events in the workplace. Be inclusive regarding what music will be played, what food will be served, what recreation will be offered, what clothes will be worn, and other factors. These all form a part of the atmosphere in which an employee must work and experience workplace leisure. If people do not see themselves re- flected in the workplace culture, they will not feel a part of it and will feel iso- lated. If they feel isolated, they are more likely to experience other factors leading to discrimination and ultimately to litigation. If this seems like a small matter to you, imagine yourself showing up at a gathering at work, and the music, decorations, food, and clothing were all Japanese. There’s sushi to eat sake to drink, and everyone is speaking Japanese. You’d probably feel a bit out of your element and would quickly realize how those seemingly simple things make a big impact. Now imagine that happening at every workplace party. 


• When an employee reports discrimination based on race, don’t let the first move be telling the employee he or she must be mistaken. Investigate it as any other workplace matter would be investigated. 


• Be willing to treat the matter as a misunderstanding if it is clear that is what has taken place. There is no use in making a federal case (literally) out of a matter that could be handled much more simply. Do not, however, underplay the significance of what occurred. 


• Offer support groups if there is an expressed need. 


• Offer training in racial awareness and sensitivity. Courts have offered language 
indicating they will look more favorably on employers who do so. 


• Constantly monitor workplace hiring, termination, training, promotion, raises, and discipline to ensure that they are fair and even-handed. If there are differences in 
treatment among races, be sure they are explainable and legally justifiable. 


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Exhibit 6.13 Still Not Convinced?

We know it is difficult to imagine that race dis- crimination is still an issue of grave importance when you may live in a world in which race doesn’t seem to matter. Just in case you’re still having trouble believing it, we ask you to con- sider the following.

A 2007 survey conducted by TheLadders.com, the world’s largest online executive job search ser- vice, concluded that racial discrimination in the workplace is as bad now as it was 10 years ago.

According to the research, 81 percent of executives had witnessed discriminatory actions in their com- panies, with race accounting for 42 percent of the discrimination; 54 percent say there has been no improvement in the past 10 years, and 77 percent say discrimination starts at the top.

Source: “Workplace Discrimination Starts at the Top; Found to Be Commonplace in American Business,” February 28, 2007, http://www.theladders.com/press/ job_search_engine/workplace_discrimination_2007.2.28.

Chapter Summary

Employees also can sue under the state or federal Constitution for a denial of equal protection if they work for the government or under state tort laws for defamation, intentional infliction of emotional distress, assault, or any other tort the facts support.

An employer who must remedy racial discrimination may not avoid doing so because of the possibility of a reverse discrimination suit by employees alleging they were adversely affected. If an employer institutes a judicially imposed or voluntary affirmative action plan that can withstand judicial scru- tiny for the reasons set forth in the affirmative action chapter, the employer will not be liable to employees for reverse discrimination. (See Exhibit 6.13, “Still Not Convinced?”)

• Title VII prohibits discrimination on the basis of race and color. This also may intersect with national origin discrimination. 


• Employers must ensure that every employee has an equal opportunity for employment and advancement in the workplace, regardless of race, color, or national origin. 


• Employers must be vigilant in guarding against the more stubborn, subtle man- ifestations of race and color 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. 


• Race cannot be used as a bona fide occupational qualification. 


Chapter-End Questions

1. A black firefighter alleges that each time he is transferred from one fire station to an- other, he must take his bed with him, on orders of the fire chief. The chief defends on the basis that it is a legitimate decision because white firefighters would not want to sleep in the same bed in which a black firefighter slept. Is this illegal under Title VII? Explain. [Georgia newspaper article] 


2. A white college receptionist is fired when it is found that she told a black college applicant that the applications for admissions are distinguished by race by the notation of a small RH in the corner of black applicants’ applications. “RH,” she says, is her supervisor’s term for “raisin heads,” which he calls African-Americans. Is the employee entitled to reinstatement? [Jet magazine article] 


3. It is discovered that, at a health club, the owner has been putting a notation on the application of black membership applicants that reads “DNWAM,” which means “do not want as member.” In addition, the black membership applicants are charged higher rates and are much less likely to be financed as other nonblack applicants. Can the black applicants bring a successful action under Title VII? 


4. A black female employee is told that she cannot come to work with her hair in decora- tive braids traditionally worn in Africa, and if she continues to do so, she will be ter- minated. Does the employee have a claim under Title VII? 


5. Bennie’s Restaurant chain routinely hires Hispanics, but it only assigns them to the lower-paying jobs as kitchen help, rather than as higher-paid servers, salad bar help- ers, or managers. Bennie’s says it does not discriminate because it has many Hispanic employees. If suit is brought by the Hispanic employees, who will likely win? [Based on Denny’s restaurants] 


6. Five white and one black canine unit officers sued for race discrimination when the operating procedures for their unit were drastically changed, they alleged, because the unit was “too white.” Can the black officer bring suit for race discrimination on these facts even though he is not white? [Ginger v. District of Columbia, 477 F. Supp. 2d 41 (D. D.C. 2007).] 


7. Ken recruits applicants for several prominent companies. Often when the companies call for Ken’s services, they strongly hint that they do not wish to hire Southeast Asians, so Ken never places them with those companies. Is Ken liable for illegal discrimination? 


8. José and César, both Hispanic, are carpenters employed by a contractor to help build an office building in Maryland. While working, José and César discover that they are being paid less than non-Hispanic employees. In addition, they allege a hostile work environment and discriminatory terms and conditions of employment, including anti-Hispanic statements by managers and employees, segregated eating areas, and an “English-only” rule imposed by the contractor. José and César sue for race discrimination. Will they win? [Aleman v. Chugach Support Services, 485 F.3d 206 (4th Cir. 2007).] 


9. Jill, the owner of a construction business, says her construction crew will not work if she hires Hispanic crew members, so Jill does not do so. Is this a defense to a Title VII action? 


10. Sam has worked at Allied for several years with no problems. Avril is transferred into Sam’s unit. Sam immediately begins having a strong allergic reaction to the perfume Avril wears each day. After having to take days off work because of his al- lergies, Sam asks Avril if she can tone down her perfume. Avril does so for a few 


Chapter Six Race and Color Discrimination 289

290 Part Two

Regulation of Discrimination in Employment

End Notes

days, then resumes her usual amount. Sam does not complain any further but is thinking of quitting because his allergies are so bad. He doesn’t want to go any fur- ther with Avril about it because Sam is white and Avril is Asian, and Sam thinks it might lead to race discrimination liability for his employer. Is Sam correct? [Based on student’s parent’s dilemma]

1. “Number of Hate Groups on the Rise, Report Says,” CNN.com, 2/23/11, http://articles. cnn.com/2011-02-23/us/splc.hate.groups_1_patriot-groups-southern-poverty-law-center- mark-potok?_s=PM:US. 


2. Devah Pager, “The Mark of a Criminal Record,” American Journal of Sociology, 108, 5 (March 2003), pp. 937–75. 


3. Marianne Bertrand and Sendhil Mullainathan, “Are Emily and Brendan More Employ- able Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination,” http://www.economics.harvard.edu/faculty/mullainathan/files/emilygreg.pdf. 


4. Patricia Rice, “Linguistic Profiling: The Sound of Your Voice May Determine If You Get That Apartment or Not,” Washington University in St. Louis Newsroom, 2/2/2006. For a fun test originally given on ABC TV’s 20/20, take a look at this Web site: http: //www.uiowa.edu/~c103112/lingprof.html. 


5. Derdrick Muhammad, senior organizer and research associate for the Institute for Policy Studies, “Census Shows Lingering Racial Wage Gap,” New Pittsburgh Courier, 10/11/10, http://www.blackvoicenews.com/news/news-wire/45111-census-shows- lingering-racial-income-gap.html. In an interesting article on the racial wage gap, Amitabh Chandra of Darmouth College’s Department of Economics argues that the decrease shown in the wage gap over the years is actually greater than it appears to be because of the failure to include black men who have left the labor market due to fac- tors such as incarceration. See Amitabh Chandra, “Is the Convergence of the Racial Wage Gap Illusory?” NBER Working Paper # 9476, 1/2003. 


6. 127 S. Ct. 625 (2006). 


7. 127 S. Ct. 638 (2006). 


8. 2006 U.S. TRANS LEXIS 48. 


9. DeWayne Wichkham, “Alabama Segregation Vote Stirs Memories of Wallace,” USA 
Today, 12/6/2004, http://www.usatoday.com/news/opinion/columnist/wickham/2004- 
12-06-wickham_x.htm. 


10. EEOC v. Northwest Cosmetic Labs LLC, consent decree Civil Action No. 10-608- 
CWD, (D Idaho, 2011). 


11. EEOC v. Charapp Ford South, consent decree No. 03-0171 (WD Pa. 2003), http://ar- 
chive.eeoc.gov/litigation/settlements/settlement11-03.html. 


12. Consent decree, EEOC v. SPS Temporaries, Inc., Jamestown Container Lockport, Inc, 
and Whiting Door Manufacturing Corp., No. 04-CV-0052E (SC) (WDNY 2005), 
http://archive.eeoc.gov/litigation/settlements/settlement11-05.html. 


13. EEOC v. Wisconsin Staffing Services, Inc., d/b/a Nicolet Staffing, Inc., Case No. 
3:10-cv-543 (WD WI 2010). 


14. “Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care,” Na- 
tional Academies’ Institute of Medicine, 3/20/2002, http://www8.nationalacademies. org/onpinews/newsitem.aspx?RecordID=10260. 


Chapter Six Race and Color Discrimination 291

15. Boston Globe, October 2, 1999, p. B1, http://www8.nationalacademies.org/onpinews/ 
newsitem.aspx?RecordID=10260. 


16. Multi-City Study on Urban Inequality, (Russell Sage Foundation Publications, 2001), http://www.icpsr.umich.edu/icpsrweb/ICPSR/studies/02535. 


17. Lisa Richardson, “History of Racism and Sexism Chronicled in LAFD,” Los Angeles Times, 3/13/2006. 


18. Jeffry Scott, “Jones Ordered to Pay $185,000,” Atlanta Journal and Constitution, 4/1/2010, http://www.ajc.com/news/dekalb-discrimination-suit-jones- 426095.html. 


19. EEOC v. Professional Transit Management, d/b/a Springs Transit, Case No. 06-cv- 01915 (D. Colo. May 17, 2007). 


20. “Majority of Americans Say Racism against Blacks Widespread,” Gallup, 8/4/2008, http://www.gallup.com/poll/109258/Majority-Americans-Say-Racism-Against- Blacks-Widespread.aspx. 


21. “In U.S., Views on Race Relations Return to Pre-Obama Levels,” Gallup, 10/20/2009, http://www.gallup.com/video/123935/Views-Race-Relations-Return-Pre-Obama- Levels.aspx. 


22. Ibid. 


23. “Gallup Poll Social Audit: Black-White Relations in the U.S.,” http://www.gallup. com/poll/4627/gallup-social-audit-blackwhite-relations-us.aspx; http://media.gallup. com/GPTB/specialReports/sr010711.PDF. 


24. Eduardo Bonilla-Silva, Racism without Racists: Color-Blind Racism and the Persis- tence of Racial Inequality in the U.S. (Lanham, MD: Rowman & Littlefield, 2003); Eduardo Bonilla-Silva, White Supremacy and Racism in the Post-Civil Rights Era, (Boulder, CO: Lynne Rienner, 2001). 


25. Alfred Blumrosen and Ruth Blumrosen, The Reality of Intentional Job Discrimination in Metropolitan America—1999 (Jersey City, NJ: EEO1, 2002). 


26. http://www.adversity.net/Kodak/02_non-lawsuit.htm. 


27. David Mattingly, “Strom Thurmond’s Family Confirms Paternity Claim,” 12/16/2003, http://articles.cnn.com/2003-12-15/us/thurmond.paternity_1_thurmond-family-essie- mae-washington-williams-carrie-butler?_s=PM:US. 


28. “Textile Firm Linked to “Negro Cloth” for Slaves, USA Today, 2/21/02, http://www .usatoday.com/money/general/2002/02/21/slave-westpoint-stevens.htm. 


29. Diseases and Peculiarities of the Negro Race: by Dr. Cartwright (in Debow’s Review), “Africans in America,” PBS.org, http://www.pbs.org/wgbh/aia/part4/ 4h3106t.html. 


30. Ira Berlin, Marc Favreau, and Steven F. Miller, Remembering Slavery: African Americans Talk about Their Personal Experiences of Slavery and Emancipation (with MP3 Audio CD) (New York: The New Press, 1998). 


31. “Retired Black Police Seek Pension Parity: Retired Black Officer Lobbying to Gain Credit, Compensation for Lost Years,” MSNBC, 3/2/2008, http://www.msnbc.msn. com/id/23426196/ns/us_news-life/. 


32. Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). 


33. “Civil War Widow, Final Link to Old Confederacy, Dies,” USA Today, 5/31/2004, http://www.usatoday.com/news/nation/2004-05-31-war-widow_x.htm. 


292 Part Two

Regulation of Discrimination in Employment

Cases

Case 1 Case 2 Case 3 Case 4

Alonao v. Chase Manhattan Bank, N.A 293
Jones v. Robinson Property Group, L.P., d/b/a Horseshoe Casino & Hotel 294 Vaughn v. Edel 295
Chandler v. Fast Lane, Inc. 297

34. “Usual Weekly Earnings of Wage and Salary Workers, Fourth Quarter 2010,” U.S. Bureau of Labor Statistics. “Among the major race and ethnicity groups, median weekly earnings for black men working at full-time jobs were $629 per week or 73.4 percent of the median for white men ($857). The difference was less among women, as black women’s median earnings ($605) were 87.1 percent of those for white women ($695). Overall, median earnings of Hispanics who worked full time ($539) were lower than those of blacks ($614), whites ($772), and Asians ($828). http://www.bls.gov/news.release/wkyeng.nr0.htm. 


35. Juan Williams, Thurgood Marshall: American Revolutionary (New York: Three Rivers Press, 1998), p. xiv. 


36. 427 U.S. 273 (1976). 


37. 2006 U.S. Dist. LEXIS 70103 (W.D. Tex. 2006). 


38. 7 F3d 795 (8th Cir. 1993). 


39. Eve Tahmincioglu, “Racial Harassment Still Infecting the Workplace,” MSNBC.com, 
January 13, 2008, http://www.msnbc.com/id/22575581/from/ET/print/1/displaymode/ 
1098/ (last visited January 15, 2008). 


40. “Lockheed Martin to Pay $2.5 Million to Settle Racial Harassment Lawsuit,” http:// 
www.eeoc.gov/press/1-2-08.html (last visited February 6, 2008). 


41. EEOC v. Lockheed Martin, CV-05-00479 (D. Hawaii 2008). 


42. 1998 US Dist LEXIS 2335 (N.D. Tex. 1998). 


43. EEOC v. Scientific Colors, Inc., d/b/a Apollo Colors, No. 99 C 1959 (N.D. Ill. 2002). 


44. 329 F. Supp.2d 1002 (S.D. Indianapolis Div. 2004). 


45. Walker v. Secretary of the Treasury, Internal Revenue Service, 742 F. Supp. 670 (N.D. 
Ga., Atl. Div. 1990). 


46. Jeff Zeleny, “Reid Apologizes for Remarks on Obama’s Color and Dialect,” 1/9/10, 
The New York Times, http://www.nytimes.com/2010/01/10/us/politics/10reidweb. html. See also the comment by then-Sen. Joe Biden widely understood to imply color, “Biden’s Description of Obama Draws Scrutiny,” CNN, 1/13/2007, http://articles. cnn.com/2007-01-31/politics/biden.obama_1_braun-and-al-sharpton-african- american-presidential-candidates-delaware-democrat?_s=PM:POLITICS. 


47. David Matthews, Ace of Spades: A Memoir (New York: Henry Holt, 2007). 


Case 1

Sweet, J.

Alonzo v. Chase Manhattan Bank, N.A 25 F. Supp. 2d 455 (S.D.N.Y. 1998)

A Hispanic employee sued his employer for national origin discrimination, alleging he was the only His- panic in his unit and the only person subjected to name calling and racial slurs because of it. After the EEOC’s determination and before bringing the case to court, the employee amended the complaint to in- clude race discrimination. The employer argued that race was not included in the original EEOC complaint; therefore, the court had no jurisdiction to hear it at this point. In holding that it was permissible to include the new category because it was within the scope of what could reasonably have been expected to grow out of the EEOC investigation, the court discussed the uncertainty of race versus national origin discrimination.

Whereas the term “black,” or even “Asian,” does not trigger the concept of national origin or an affiliation to a particular country, the term “Hispanic” may trig- ger the concept of race. Thus, the allegations con- tained in Alonzo’s EEOC charge would reasonably cause the EEOC to investigate discrimination based both on national origin and race, thereby satisfying the “reasonably related” requirement, even though he only checked the box labeled “national origin” on his EEOC charge.

Alonzo stated his belief that he was discriminated against because he is Hispanic. While the term “black” is not associated with national origin, some courts have treated “Hispanic” as a racial category. In an oft-cited passage, the court in Budinsky v. Corning Glass Works, 425 F. Supp. 786 (W.D. Pa. 1977), reasoned that:

The terms “race” and “racial discrimination” may be of such doubtful sociological validity as to be scientifically meaningless, but these terms none- theless are subject to a commonly-accepted, albeit sometimes vague, understanding . . . On this ad- mittedly unscientific basis, whites are plainly a “race” susceptible to “racial discrimination.” His- panic persons and Indians, like African- Americans, have been traditional victims of group discrimination, and, however inaccurately or stu- pidly, are frequently and even commonly subject to a “racial” identification as “non-whites.”

Whether being Hispanic constitutes a race or a national origin category is a semantic distinction with

historical implications not worthy of consideration here. Thus, submits Alonzo, neither he nor the EEOC em- ployee who filled out his EEOC charge should be penal- ized for not checking the box marked “race”. Alonzo points out that because he did not state that he was the only Hispanic from a particular country treated in a dis- criminatory manner, he did not confine his claim to one of national origin discrimination.

Due to Alonzo’s pronouncement that he was dis- criminated against because he is an Hispanic, because it has not been established that the designation of be- ing an Hispanic precludes a claim of racial discrimina- tion, and given the uncertainty among courts as to whether “Hispanic” is better characterized as a race or a national origin, Alonzo’s claims of racial discrimina- tion are reasonably related to his claims of national origin discrimination as they fall within the reasonable scope of EEOC investigation. Accordingly, Defen- dants’ MOTION for judgment on the pleadings re- garding the claims premised on racial discrimination is DENIED.

Case Questions

1. What do you think of the court’s quote from the Budinsky case about classification of race being stu- pid and inaccurate? Explain.

2. Do you think it matters whether someone’s category is called “race” vs. “ethnicity”? Explain.

3. Do you agree with the court that the employee should not be penalized for checking the race box? Explain.

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Chapter Six Race and Color Discrimination 293

294 Part Two Regulation of Discrimination in Employment

Case 2

Jones v. Robinson Property Group, L.P., d/b/a Horseshoe Casino & Hotel 427 F.3d 987 (5th Cir. 2005)

A better-than-average black poker dealer with a good deal of experience sued a casino for refusing to hire him over an eight-year period, alleging it was only because of his race. Based on the facts, the court agreed.

Stewart, J.

Ralph Jones is an African-American male living in Tunica County, Mississippi. He is a certified poker dealer who has worked in various casinos as a poker dealer and in other capacities. He has also dealt in several major poker tournaments, including the World Poker Open held at the Horseshoe Casino. It is undisputed that Jones is a well qualified poker dealer, whose dealing skills are better than the average poker dealer in Tunica County, Mississippi.

Robinson Property Group (RPG) first opened the Horseshoe Casino and Hotel in Tunica, Mississippi, in 1995. Ken Lambert has served as the poker room man- ager at the Horseshoe since that time.

Jones alleges that he has repeatedly sought and been refused a position with RPG. Jones first applied for a position at Horseshoe in late 1994, before the casino opened. In May 1995, Jones applied for a poker floor person and a poker dealer position at Horseshoe. Jones was not hired for either position. Two weeks later, Jones complained to Anna West, Horseshoe’s Director of Human Resources, that his non-hiring was due to racism. Jones asked her whether the casino had a problem with hiring blacks as poker dealers because he observed that there were no African-Americans working at the Horseshoe as poker deal- ers at that time. Lambert was summoned to respond to Jones’ question. Lambert responded to Jones’ complaint by stating that there were no qualified African-American poker dealers in Tunica County. Jones informed him that there were at least five qualified African-Americans in the area, including himself. Lambert testified that he became indig- nant at Jones’ accusation, and he felt “misjudged” and “embarrassed.” He claims that he nonetheless offered Jones a position as a poker dealer again. When Jones refused and he persisted in his racial allegations, Lambert testified that his feelings became hurt and he ended the conversation. Jones denies that he was offered a position as a poker dealer.

Between 1995 and 2002, Jones submitted applications for a poker dealer position no less than 10 times. Horseshoe has employed Jones in other departments and on a

temporary basis as a poker dealer during high profile poker tournaments; however, Jones has never been hired by Horseshoe on a permanent basis. The record reveals that during the relevant time period the Horseshoe was hir- ing poker dealers for permanent positions. The Horseshoe generally employs a staff of 40–45 poker dealers.

***
Under Title VII, an employer cannot “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 individual’s race[.]” An employee can prove discrimination through direct or cir- cumstantial evidence. If an employee presents credible direct evidence that discriminatory animus at least in part motivated, or was a substantial factor in the adverse em- ployment action, then it becomes the employer’s burden to prove by a preponderance of the evidence that the same decision would have been made regardless of the discriminatory animus.

***
We have previously held that “statements or docu-

ments which show on its face that an improper criterion served as a basis—not necessarily the sole basis, but a basis—for the adverse employment action are direct evidence of discrimination.” When a person or persons with decision making authority evinces [sic] racial ani- mus that may constitute direct evidence of discrimina- tion. [sic] (“This court has implied that calling an employee a ‘nigger’ would be direct evidence of race discrimination.”) We have also previously observed that racial epithets undoubtably demonstrate racial animus.

***
. . . Upon extensive review of the parties’ arguments

and the record in this case, we find that Jones has demon- strated direct evidence of discrimination.

Mims [a poker dealer and part-time supervisor] stated that she inquired why an African-American poker dealer

***

was not hired and was told, by either Lambert or his as- sistant, that “they hired who they wanted to hire and there [sic] were not going to hire a black person unless there were extenuating circumstances.” She was then told by Lambert, or his assistant, that “good old white boys don’t want blacks touching their cards in their face.” Sam Thomas [a former Horseshoe employee] testified that in 1995, that Lambert told him that “maybe I’ve been told not to hire too many blacks in the poker room.” It is in- controvertible that Lambert made the hiring decisions at Horseshoe and Presley as his assistant would have pro- vided input, therefore, viewing the evidence in the light most favorable to Jones, the aforementioned evidence proves, without inference or presumption, that race was a basis in employment decisions in the poker room at Horseshoe. The evidence need not show that race was the sole basis in order to constitute direct evidence. . . . Mims’ and Thomas’ testimony clearly and explicitly indicates that decision maker(s) in the poker room used

race as a factor in employment decisions, which is by definition direct evidence of discrimination. Thus, we find that Jones has presented direct evidence of discrimi- nation and accordingly, he has established a prima facie case of discrimination. The district court erred in grant- ing summary judgment for RPG. We thus REVERSE and REMAND this case back to the district court for further proceedings consistent with this opinion.

Case Questions

1. Are you surprised that this is a 2005 case? Explain. 2. Giventheevidence,doyouunderstandwhythelower court would have found that no race discrimination

had taken place? Explain.
3. What do you think of the statements that management

allegedly made? Do they seem like appropriate bases for making workplace decisions? Explain.

Vaughn v. Edel 918 F.2d 517 (5th Cir. 1990) Case 3

During a retrenchment, a black female was terminated for poor performance. She alleged race discrimination in that her employer intentionally determined not to give her necessary feedback about her performance that would have helped her perform better and perhaps avoid dismissal. The court upheld the employee’s claim.

Chapter Six Race and Color Discrimination 295

Wiener, J.

Emma Vaughn, a black female attorney, became an associate contract analyst in Texaco’s Land Department in August of 1979. Her supervisors were Robert Edel and Alvin Earl Hatton, assistant chief contract analyst. In Vaughn’s early years with Texaco, she received promo- tions and was the highest ranked contract analyst in the department.

The events leading to this dispute began on April 16, 1985, the day after Vaughn returned from a second maternity leave. On that day, Edel complained to Vaughn about the low volume of her prior work and the excessive number of people who visited her office. Vaughn later spoke with Roger Keller, the head of the Land Depart- ment, about Edel’s criticism of her.

In a memorandum concerning this discussion, Keller wrote that he had told Vaughn that he had been told that Vaughn’s productivity “was very low”; that he “had become aware for some time of the excessive visiting by predominantly blacks in her office behind closed doors”; and that “the visiting had a direct bearing on her produc- tivity.” Keller then told Vaughn, as he noted in his memo, that “she was allowing herself to become a black matri- arch within Texaco” and “that this role was preventing her from doing her primary work for the company and that it must stop.”

Keller’s remarks offended Vaughn, so she sought the advice of a friend who was an attorney in Texaco’s Legal Department. Keller learned of this meeting and of

***

296 Part Two Regulation of Discrimination in Employment

Vaughn’s belief that he was prejudiced. To avoid charges of race discrimination, Keller told Vaughn’s supervisor, Edel, “not [to] have any confrontations with Ms. Vaughn about her work.” Keller later added that “if he [Edel] was dissatisfied, let it ride. If it got serious, then see [Keller].”

Between April 1985 and April 1987 when Vaughn was fired, neither Edel nor Hatton expressed criticism of Vaughn’s work to her. During this period all annual writ- ten evaluations of Vaughn’s work performance (which, incidentally, Vaughn never saw) were “satisfactory.” Vaughn also received a merit salary increase, though it was the minimum, for 1986. Keller testified that for sev- eral years he had intentionally overstated on Vaughn’s annual evaluations his satisfaction with her performance because he did not have the time to spend going through procedures which would result from a lower rating and which could lead to termination.

In 1985–86 Texaco undertook a study to identify ac- tivities it could eliminate to save costs. To meet the cost- reduction goal set by the study, the Land Department fired its two “poorest performers,” one of whom was Vaughn, as the “lowest ranked” contract analyst. The other employee fired was a white male.

In passing Title VII, Congress announced that “sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.”

When direct credible evidence of employer discrimi- nation exists, employer can counter direct evidence, such as a statement or written document showing discrimina- tory motive on its face, “only by showing by a prepon- derance of the evidence that they would have acted as they did without regard to the [employee’s] race.”

Vaughn presented direct evidence of discrimination. Keller testified that to avoid provoking a discrimination suit he had told Vaughn’s supervisor not to confront her about her work. His “black matriarch” memorandum de- tails the events that led Keller to initiate this policy. Keller also testified to deliberately overstating Vaughn’s evalua- tions in order not to start the process that might eventually lead to her termination. This direct evidence clearly shows that Keller acted as he did solely because Vaughn is black.

Although Vaughn’s race may not have directly moti- vated the 1987 decision to fire her, race did play a part in Vaughn’s employment relationship with Texaco from 1985–1987. Texaco’s treatment of Vaughn was not color- blind during that period. In neither criticizing Vaughn when her work was unsatisfactory nor counselling her how to improve, Texaco treated Vaughn differently than it did its other contract analysts because she was black. As a

result, Texaco did not afford Vaughn the same opportunity to improve her performance and perhaps her relative rank- ing, as it did its white employees. One of those employees was placed on an improvement program. Others received informal counselling. The evidence indicates that Vaughn had the ability to improve. As Texaco acknowledges, she was once its highest ranked contract analyst.

Had her dissatisfied supervisors simply counselled Vaughn informally, such counselling would inevitably have indicated to Vaughn that her work was deficient. Had Keller given Vaughn the evaluation that he believed she deserved, Texaco’s regulations would have required his placing her on a ninety-day work improvement pro- gram, just as at least one other employee—a white male—had been placed. A Texaco employee who has not improved by the end of that period is fired.

When an employer excludes black employees from its efforts to improve efficiency, it subverts the “broad overriding interest” of Title VII—“efficient and trusty workmanship assured through fair and racially neutral employment and personnel decisions.” Texaco has never stated any reason, other than that Vaughn was black, for treating her as it did. Had Texaco treated Vaughn in a color-blind manner from 1985–1987, Vaughn may have been fired by April 1987 for unsatisfactory work; on the other hand, she might have sufficiently improved her per- formance so as not to be one of the two lowest ranked employees, thereby avoiding termination in April 1987.

Because Texaco’s behavior was race-motivated, Tex- aco has violated Title VII. Texaco limited or classified Vaughn in a way which would either “tend to deprive [her] of employment opportunities or otherwise ad- versely affect [her] status as an employee” in violation of the law.

Case Questions

1. Do you agree with the court’s decision? Why or why not?

2. How would you have handled this matter if you were the manager?

3. What do you think of Keller’s remarks about Vaughn becoming the “black matriarch” of Texaco, “meeting behind closed doors,” and “excessive meetings with predominantly blacks”? What does it signify to you? What attitudes might it reflect that may be inappro- priate in the workplace? What concern, if any, might be appropriate?

Case 4

Eisele, J.

In the complaint filed with the Court, Chandler (who is white) alleges that she was the victim of a discriminatory employment practice at the hands of her employers. Chandler, a former manager of employer’s restaurant, claims that her employer thwarted her efforts to employ and promote African-American employees, and that as a result the conditions of her employment became so intolerable that she was forced to resign. The employer argues that because they are alleged to have adopted discriminatory hiring and promotional practices targeted only at African-Americans, a white person has no standing to assert a Title VII claim premised upon these policies.

It is true that only individuals whom employers are claimed to have failed or refused to hire or promote were African-Americans. However, by focusing on the “fail or refuse to hire” provision of 2000e-2(a)(1), employer’s argument misperceives the unlawful employment prac- tice alleged by Chandler. Chandler does not claim that she was a target of employer’s allegedly anti–African- American employment practices. Rather, Chandler ar- gues that employer’s insistence that she enforce these practices violated her fundamental right to associate with African-Americans, and as a consequence employer committed a separate violation by engaging in an unlaw- ful employment practice that “otherwise discriminate[d] against an individual,” namely Chandler.

Although the Court recognizes that Chandler’s Title VII claim is somewhat novel, it is of the opinion that such a claim, if proven, would state a cause of action un- der Title VII. A white person’s right to associate with African-Americans is protected by Sec. 1981. Therefore, the Court concludes that an employer’s implementation of an employment practice that impinges upon this right is actionable under Title VII.

Additionally, Chandler’s allegations are sufficient to establish a Title VII claim under a separate provision of the statute. The relevant provision of Title VII is found in 42 U.S.C.A. § 2000e-3(a), which provides in perti- nent part:

It shall be an unlawful employment practice for an employer to discriminate against any of his employ- ees . . . because [s]he has opposed any practice made an unlawful employment practice by [Title VII].

In order to establish a prima facie case under the “opposition” clause of § 2000e-3(a), an employee must show: (1) that she was engaged in an opposition activ- ity protected under Title VII; (2) that she was a victim of adverse employment action; and (3) that a causal nexus exists between these two events. The Court has no doubt that an employee who exercises her authority to promote and employ African-Americans engages in protected “opposition” to her employer’s unlawful employment practice which seeks to deprive African- Americans of such benefits. Thus, Chandler’s allega- tions are clearly sufficient to meet the first requirement of a § 2000e-3(a) claim. The Court further concludes that employer’s insistence that Chandler enforce such an employment practice, if proven, would certainly cause an “adverse employment action” to be visited upon her. Title VII forbids an employer from requiring its employees “to work in a discriminatorily hostile or abusive environment,” and included within this prohi- bition is the right of white employees to a work environment free from discrimination against African- Americans, or any other class of persons. Indeed, sub- jecting an employee to such a hostile working environment may result in an actionable constructive

***

Chapter Six Race and Color Discrimination 297

Chandler v. Fast Lane, Inc. 868 F. Supp. 1138 (E.D. Ark., W. Div. 1994)

A white employee brought suit against her employer for constructive dismissal under Title VII and other statutes, alleging that she was forced to leave her job when the employer would not allow her to hire and promote African-Americans. The employer argued that since its policies discriminated only against African-Americans, the white employee had no right to sue under Title VII. The court disagreed and permitted the case to be brought.

298 Part Two Regulation of Discrimination in Employment

discharge, a result that is especially likely under facts similar to those presently alleged. Under Title VII, a constructive discharge occurs whenever it is reason- ably foreseeable that an employee will resign as a result of her employer’s unlawful employment prac- tice, and it is plainly foreseeable that an employee might choose to resign rather than to acquiesce in or enforce her employer’s discriminatory and illegal employment practice.

The Court is therefore satisfied that employer’s efforts to hinder Chandler from hiring and promoting African-Americans, and their insistence that she dis- criminate against such persons, if proven, would result in an actionable Title VII claim. Indeed, “[u]nder the terms of § 2000e-3(a), requiring an employee to dis- criminate is itself an unlawful employment practice.” Accordingly, it is therefore ordered that employer’s motion to dismiss is DENIED.

Case Questions

1. What do you think of the employer’s argument that since its policies discriminated against African- Americans, the white employee should not be able to bring a suit for discrimination? Explain.

2. Do you understand the court’s reasoning that the white employee was being discriminated against by not being able to hire and promote black employees? Explain.

3. What reason can you think of as to why the employer had the policy of not hiring or promoting African-Americans? Do you think it makes good economic sense? (Consider all facets of economics, including the possibility of litigation over the policies.)