BUS 372 University of Arizona Global Campus Workplace Discrimination Paper


Workplace culture is important for building a foundation of motivation, high morale, and success. There are policies and laws in place to ensure a safe and healthy work environment. In this assignment, you will examine a scenario, determine if harassment occurred, and discuss HR best practices.
Prior to beginning work on this assignment,
Consider reviewing Chapter 3 and Chapter 4 from the textbook.
In your paper,

Identify the type of potential harassment Chantel is facing at work.
Propose at least two resolutions that an HR manager should suggest regarding Chantel’s situation. Explain why these are appropriate resolutions.

Discuss the government agency that would be involved in investigating Chantel’s harassment claims.

Evaluate how these agencies would be involved in Chantel’s case.
Explain the distinction between harassment and discrimination.

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Discrimination on the Basis of
CSU Archives / Everett Collection / Bridgeman Images
Learning Outcomes
After reading this chapter, you should be able to
Understand that race discrimination and harassment are widespread problems in the United States workplace.
Distinguish between a race discrimination lawsuit brought under 42 U.S.C. § 1981 and one brought under Title VII of the Civil Rights Act of
Describe how race discrimination manifests in the hiring process and in the terms and conditions of employment.
Discuss the issues of and approaches to bringing a race discrimination lawsuit and what the plaintiff must understand regarding disparate
treatment, disparate impact, racial harassment, or retaliation.
Discuss how best practices can be implemented to avoid race discrimination and harassment in the workplace.
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4.1 Introduction
Race discrimination in employment continues to be widespread and prevalent, despite laws banning it and the payout of multimillion-dollar jury awards. Race
discrimination is one of the problems most frequently reported to the Equal Employment Opportunity Commission (EEOC), second only to retaliation, and the
nature of the offense is a flagrant violation of the law. The purpose of this chapter is to focus on a cross-section of cases that illustrate the legal nature and
depth of the problem in order to demonstrate that inequity in employment is extensive. Then we will explore the different ways of proving race discrimination,
racial harassment, and retaliation. The chapter ends with considerations for writing and implementing effective policy that can prevent racial problems in the
The examples in this chapter focus on the experience of Black and African American employees, although the concepts described apply to all people of color.
In all parts of the chapter, the terms Black and African American are capitalized out of respect for the history and struggle endured by persons of African
origin. Discrimination against other peoples of color will be explored specifically in Chapter 6.
There is no doubt that African Americans continue to struggle to achieve equity in the workplace. They account for only 3.2% of all executive and leadership
positions and fewer than 1% among Fortune 500 companies (Brooks, 2019). For college-educated Black people, unemployment is 40% higher than for their
White counterparts. Black women continue to work in lower-paid jobs, earning 61.9 cents for every dollar earned by White men. The median weekly wage for
Black full-time employees was $727 from July 2019 to September 2019, compared with $943 for White full-time employees (Weller, 2019). A quarter of all
EEOC claims come from Black workers, and yet these workers have the lowest rates of success in achieving a positive judicial or administrative outcome—only
15% receive some form of relief (Jameel & Yerardi, 2019).
As we begin this chapter, it is important to acknowledge that laws by themselves cannot end discrimination. Only through the thoughtful work of people will
progress be made. While best practices necessitate the application of law to address barriers to recruitment, hiring, advancement, and promotion, employers
must simultaneously create a framework for conversations about race. Only by acknowledging the depth of the problem will meaningful progress be made to
eradicate it.
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4.2 Laws That Cover Race and Color Discrimination
Understanding the legal aspects of race inequity can be challenging due to the intricacy of the federal statutes that govern this aspect of the law. The two
primary statutes that govern discrimination based on race and color are the Civil Rights Act of 1964 (and the amendments to that law codified in the Civil
Rights Act of 1991) and 42 U.S.C. § 1981.
42 U.S.C. § 1981
Passed in 1866, soon after the Civil War, 42 U.S.C. § 1981 is a civil rights law that gave African Americans numerous rights. Section 1981 is not as well known
as Title VII and is often overlooked in lawsuits, but it has numerous advantages over a Title VII lawsuit. (Here is what the coding of this law’s name means: The
“42” refers to the volume of federal laws in which the law is found; “U.S.C.” stands for the United States Code, the book that contains federal statutes; and the “§
1981” is the number of the law within volume 42. The symbol § means “section.” A claim filed under this law is often just referred to as “a Section 1981” claim,
and “§ 1981” is shorthand for the full citation of the law.)
A Closer Look
Major Laws Covering Race and Color Discrimination
Federal laws
42 U.S.C.§ 1981
The Civil Rights Act of 1964, Title VII
The Civil Rights Act of 1991
State laws
Anti-discrimination laws of each state
Local laws
County, municipality, and town ordinances
Employer’s policies
Based on express policies set out in a handbook or through memos, and on implied policies through actions taken by the company that are not in
written form
According to 42 U.S.C. § 1981,
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
Although this law seems focused on contract law and does not mention discrimination, it is relevant because the relationship between an employer and an
employee is based on a contract. Thus, the phrase “shall have the same right . . . to make and enforce contracts” provides protection regarding forming an
employer-employee relationship (when an employee is hired), the terms and conditions of employment (while an employee is employed), and ending the
employer-employee relationship (when an employee is terminated). In short, the courts have interpreted § 1981 to prohibit intentional discrimination in the
making and enforcement of contracts. The Civil Rights Act of 1991 expanded the reach of § 1981 to include “the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship” (Civil Rights Act, 1991). Therefore,
§ 1981 basically covers all aspects of employment.
A § 1981 action provides several advantages for a plaintiff that are missing from Title VII:
Unlike Title VII, complainants do not have to go through a federal agency such as the EEOC and wait for an investigation or a Right to Sue letter
(Chapter 3). Complainants may sue at any time they choose.
In a § 1981 lawsuit for intentional discrimination, the plaintiff is entitled to recover compensatory and punitive damages, whereas damages are capped
in a Title VII lawsuit, depending on the number of persons employed (for each complaining party, the lowest payment is $50,000 and the highest is
Section 1981 also has a much longer statute of limitations than Title VII does, allowing more time for a complainant to file a complaint. The statute of
limitations is the time period, starting with the date of the injury, in which a plaintiff must file a case. Failure to file within that time period will result in
dismissal of the action. The statute of limitations for a § 1981 lawsuit is 4 years. Under Title VII, the statute of limitations is 180 days, or 300 days if a
state or local agency enforces a law that prohibits employment discrimination on the same basis.
A § 1981 action covers all employers, even those with fewer than 15 employees, as well as entities and individuals who are not employees, such as
independent contractors and interns. However, it pertains only to discrimination based on race and disability and does not cover the other protected
Usually, attorneys who argue civil rights cases, such as those brought under § 1981 and Title VII, are entitled to attorney’s fees if the plaintiff is the
prevailing party.
To prevail in a § 1981 intentional discrimination matter, the plaintiff must prove by a preponderance of the evidence
1. that the defendant failed to hire or promote the plaintiff, or demoted, terminated, or discharged the plaintiff,
2. and that race was the motivating factor in the defendant’s decision.
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In addition,
3. in showing that the plaintiff’s race was a motivating factor, the plaintiff is not required to prove that his or her race was the sole motivation, but only
that race played a motivating part in the defendant’s decision.
The Civil Rights Act of 1964, Title VII
The second major law protecting against race and color discrimination is the Civil
Rights Act of 1964, Title VII, and the amendments to that law codified in the Civil
Rights Act of 1991 (Chapter 3).
Title VII of the Civil Rights Act of 1964 states:
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,
religion, sex, or national origin; 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, religion, sex, or national origin.
Three college students walk a picket line in front of the Madison
County Courthouse in Jackson, Tennessee, in October 1960 to
protest segregated seating on buses. The decades-long civil rights
movement that helped bring about the Civil Rights Act of 1964
demanded protection against race and color discrimination.
The examples of cases discussed in the following sections provide insights into the
nature of disputes that advance to a hearing before the EEOC or litigation in the
courts. These cases represent the worst of the worst, because no statistic is known
for how many disputes are resolved by HR departments in-house (hopefully, the
bulk of complaints). So, a word of caution: In some of the examples, the actual
language stated in the complaint or used in the proceeding appears, and this language is often offensive and racist. This language is repeated in the examples
to show the degree of racism prevalent in that workplace.
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4.3 Discrimination in the Hiring Process
In this section, we will begin to apply Title VII and § 1981 to areas of employment that you may witness or work on as an HR professional, with emphasis on
the hiring process.
Job Descriptions, Advertisements, and Recruiting
Beginning with the job description and advertisement, language about a position and desired applicants should be carefully chosen. Language like “prefer a
strong man for the job” is discriminatory. But language like “must be able to lift 50 pounds” is not, because it designates a necessary work requirement. Even
ads that use descriptive words such as “really energetic person wanted” or “person with leadership skills preferred” may be viewed by the EEOC as violative
because the word energy connotes someone young and leadership tends to discourage female applicants. The safest route is to avoid adjectives about
applicants and limit the job description and ad to facts about the actual needs for the position.
Advertising and recruitment practices that result in making a job open only to members of a specific community are discriminatory as well as self-defeating. If
an employer wants to attract the strongest candidates, word-of-mouth hiring, or passing news of a job opening only among friends and connections, tends to
draw from the same group of people and their friends and acquaintances. This can result in a failure to attract candidates from different ethnic and social
backgrounds. Likewise, hiring only relatives, or nepotism (EEOC v. Steamship Clerks Union, 1995), and limiting recruitment to a specific geographical area
(NAACP v. Town of Harrison, NJ, 1991) such as one city, town, or community narrows the pool. The idea behind equal opportunity is to provide an opportunity
to as many people as possible.
Before the advent of the internet, jobs were advertised primarily in print media, such
as newspapers, and occasionally on the radio or TV. But now, job advertisers and
seekers rely almost entirely on the internet. Although advertisers have the ability to
reach many more people on the internet, some unique problems have developed
with this medium, most notably the use of tracking systems. More than 95% of
Fortune 500 companies use an applicant tracking system (ATS) in their webbased programming. An ATS excludes many applicants who do not have a specific
requirement that is part of the tracking system’s algorithm, such as a college degree
or a specific birth year. Gone are the days when a job recruiter read an applicant’s
cover letter and ré sumé and then decided, based on the applicant’s knowledge and
experience, whether she was well suited for the job. Today, applicants who do not
use the right buzzwords or who are less qualified than others may never be
considered because a computer rejects their credentials.
This was demonstrated in a lawsuit filed with the EEOC against Facebook for
targeting younger males with its “micro-targeting ad technology.” When an
advertising company submitted a job posting that it wanted published to Facebook, it
did not limit its search to exclude women. But Facebook’s use of algorithms resulted
in the advertisement popping up only on young men’s pages. It did not appear on
the pages of women older than 55. Obviously, if the women could not see the job
posting, they could not apply for the job, and so they were effectively excluded from
the job search. Facebook argued that it is legal to target certain demographics if their
overall recruitment strategy does not exclude protected classes, but the EEOC
disagreed, finding the company in violation of Title VII (Merrill, 2019). Facebook
subsequently agreed to eliminate age- and gender-based targeting.
iStock / Getty Images Plus / nd3000
The use of automated applicant tracking systems to attract and
manage job applicants is prevalent in large corporations. Such
tracking systems have the potential to unintentionally
discriminate against or discourage applicants in protected
classes. Human resources professionals must be alert to this
Another way the job screening process can be discriminatory was shown in a field experiment conducted by two researchers. They created ré sumé s for Black
and Asian applicants and sent them out to 1,600 employers advertising for entry-level positions. Some of the ré sumé s had clear references to an applicant’s
minority status, while other ré sumé s were “whitened” or “scrubbed” of racial clues. Although the credentials on all the ré sumé s were identical, 25% of Black
and 21% of Asian applicants received callbacks when their ethnicity was scrubbed, compared with 10% and 11.5% when their ethnicity was apparent
(Gerdeman, 2017).
Imposing requirements that are unnecessary to perform a job, and that as a result discriminate against protected classes, is also a violation of Title VII. In
EEOC v. Marquez Brothers International, Inc., an employer imposed a language requirement to attract only Hispanic employees for unskilled positions. The
California food producer’s group of companies preferred Hispanics who spoke Spanish and refused to hire any non-Hispanics, including Black, White, and
Asian applicants, to work in their warehouses. The EEOC obtained a $2 million settlement against the company for imposing an unnecessary language
requirement as part of the hiring process (EEOC v. Marquez Brothers International, Inc., 2019).
Finally, as part of their recruitment processes, employers should be aware of how they appear to the public and to potential applicants. If the entire workforce
of a large company is all White, then statistically this is evidence of discrimination. When Cabela’s, a large sporting goods franchise, had few to no Black and
Hispanic employees on its payroll, Black and Hispanic job applicants took notice and successfully claimed that this was evidence of discrimination. The case
ended in a $1.4 million settlement, and Cabela’s Inc. agreed to take nationwide measures to increase the diversity of its workforce, appoint a diversity and
inclusion director, set hiring goals to increase diversity, implement training of its managers, and update its policies regarding equal employment opportunities
(EEOC, n.d.). (https://www.eeoc.gov/initiatives/e-race/significant-eeoc-racecolor-casescovering-private-and-federal-sectors)
Application and Interview Process
Employers want to avoid not only discrimination, but also the appearance of impropriety. Appearing to the EEOC as if one’s search process is discriminatory is
not only ill advised; it is also unnecessary and reckless. As such, it is important to avoid raising the issue of race during the interview and application process.
For example, asking someone what his race is in an interview or on a job application is both illegal and imprudent. Even if there is no intent to discriminate,
bringing up the issue suggests that race will be used as a factor in hiring. The EEOC’s stance is that asking about race means that the employer is going to use it
as a basis for making selection decisions. Therefore, if minority applicants appear in the pool but then are not hired, the request for such pre-employment
information would likely constitute evidence of discrimination in the EEOC’s eyes. The bottom line is that all employers should treat every applicant the same,
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with identical criteria and reviewing standards. Document every part of the search so that proof that each applicant was treated identically is in a file that can
be easily accessed should any questions arise.
At times, employers may legitimately need information about their applicants’ or employees’ race for affirmative action purposes or to track applicant flow.
One way to obtain racial information and simultaneously guard against discriminatory selection is to use a separate form to collect ethnographic data. A
statement on the form should let the applicant or employee know what data are being collected and why. The form should not ask the applicant or employee
to provide any identifying information (e.g., name, address, or social security number), and the form and data should be stored separately from job
applications, ré sumé s, employee files, and other documents linked to specific applicants or employees. Ethnographic data can be collected during the
application process or after the search process is completed.
Prior Criminal History
Numerous legal and social issues may complicate the application and interview processes when applicants who have criminal records are part of the applicant
pool. Employers are responsible for providing a safe workplace for their employees, and once they are “on notice” of someone with a violent past, the
standard of care they must take toward their employees is raised. On the other hand, many employers choose to offer programs to past offenders in order to
improve their communities and offer a helping hand.
You may be surprised to learn some of the statistics about crime, especially if you have no familiarization with the criminal justice system. A staggering one in
three people in the United States has some type of criminal record. If all people with any type of previous criminal record were excluded from a job search,
one third of all possible applicants would be disqualified immediately. Within that group, there could be some applicants who would make excellent employees.
The most prevalent type of crime in the United States is property crime, not violent crime. In 2019, the rate of property crime was 2,109.9 per 100,000 people,
and the rate of violent crime was 379.4 per 100,000. The most rampant property crime was larceny (theft of personal property), followed by burglary
(entering a building illegally with intent to commit a crime) and motor vehicle theft. Further, under violent crime, the most frequent was aggravated assault
(usually involving a weapon or serious injury), followed by robbery (theft by force or threat of force), rape, and murder (Gramlich, 2020). For reasons that
will become clear later in this chapter, the fact that most U.S. crime is property crime is one reason that the EEOC recommends considering the type of crime an
applicant committed rather than just labeling the person a criminal.
Additionally, there is a strong correlation between poverty and crime. People in households at or below the federal poverty level had more than double the
rate of violent victimization as people in high-income households (Harrell et al., 2014). Additionally, “Blacks are incarcerated five times more than Whites are,
and Hispanics are nearly twice as likely to be incarcerated as Whites” (Sakala, 2014). The possibility of significantly disadvantaging persons of color in the
selection process is apparent from statistics like these, which highlight the potential impact criminal history has on the very groups Title VII means to protect.
That is not to say that a prior criminal history cannot be considered at all when screening applicants. While the EEOC prohibits the use of arrest records
(because they are not proof of guilt), a criminal conviction may be factored in, with certain provisos. Employers may take into consideration a prior criminal
conviction if
1. it does not significantly disadvantage an applicant protected by Title VII, such as an African American or Hispanic, and
2. it helps the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee. (EEOC, n.d. (https://www.eeoc.gov/pre-empl
oyment-inquiries-and-arrest-conviction#:~:text=Title%20VII%20prohibits%20employers%20from,%2C%20sex%2C%20and%20religion) )
The phrase “likely to be a responsible, reliable, or safe employee” is important because it asks the employer to find a correlation between the type of crime
committed and the requirements of the position. The EEOC recommends that the employer consider (1) how long ago the conviction took place, (2) the nature
and seriousness of the crime, and (3) the relationship, if any, the crime would have to the job for which the applicant is being considered. If an applicant is
applying for a job at a bank and has convictions for theft, then of course that would be reason to exclude him from the job pool. But theft 20 years prior likely
has no relationship to working on, say, an automotive assembly line today.
The most conservative approach an employer can take is to leave any questions about prior criminal history out of the application process altogether. Instead,
go through the interview process and choose the best candidate. Then, make a hiring offer conditional on the discovery of a past conviction, thereby
demonstrating that prior criminal history was not a condition in the hiring process. If a previous conviction comes to light after the conditional offer is
extended, the employer can then consider the factors suggested by the EEOC (how long ago/nature and seriousness/relationship to the position) and make a
decision based on the newly discovered information. Employers must weigh these factors against their important responsibility of protecting the workplace
from violence.
Although the case in the Case Analysis box about Green v. Missouri Pacific Railroad Company is dated, it is a good example of how a person with a criminal
record may be unduly stigmatized.
Case Analysis: Prior Convictions
Green v. Missouri Pacific Railroad Company, 1975
In 1970, Buck Green, 29 years old, applied for a job as a clerk at the Missouri Pacific Railroad Company’s office in St. Louis, Missouri. The application
asked if he had ever been convicted of a crime. Green disclosed that he had been convicted for refusing to be drafted into the military to fight in
Vietnam and had served 21 months in prison. Missouri Pacific rejected him because of his conviction and prison record. Green sought relief under Title
The court found that
although the employment practice in question is facially neutral, an employment test or practice which operates to exclude a disproportionate
percentage of blacks violates Title VII unless the employer can establish that the practice is justified as a business necessity.
The court found that when using criminal convictions as a criterion for rejection, the rejection rate for Blacks is 2.5 times that of Whites. Missouri
Pacific failed to show a business reason for preventing ex-offenders from gaining employment, because there was no proof of a relationship between a
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conviction and one’s ability as an employee. Furthermore, the company did not consider how far back in time convictions had taken place or how they
related to job requirements.
The court held that the business practice was discriminatory and ordered the business to stop using prior convictions to eliminate applicants.
Source: Green v. Missouri Pacific Railroad Company, 523 F.2d 1290 (8th Cir. 1975).
Green v. Missouri Pacific Railroad Company took place almost 50 years ago. Since that time, the country has changed many of its beliefs about ex-offenders. As a
result of heightened sensitivity to how difficult it is for ex-offenders to obtain employment, a nationwide movement called Ban the Box is underway. The
movement is asking employers to remove the box to check on a job application that indicates a conviction. The list of states in A Closer Look: Ban the Box Laws
shows which states currently do not allow questions about convictions. The first group of states has legislation pertaining to private employers
(nongovernmental), and the second group has legislation pertaining to public employers (governmental). This website (https://help.checkr.com/hc/en-us/article
s/360000433248-What-are-Ban-the-Box-laws-Asking) provides more detailed information about each state’s laws regarding ex-offenders and the hiring process.
A Closer Look
Ban the Box Laws
Thirty-one states have enacted Ban the Box laws.
The following states have implemented the laws for private employers:
New Jersey
Rhode Island
These states have implemented the laws for public employers only:
New Mexico
New York
Compensation and Terms and Conditions of Employment
Another aspect of employment rife with race discrimination is what Title VII refers to as terms and conditions of employment, a phrase that encompasses
every aspect of work. Terms and conditions refer to the rules imposed at work, such as what time employees must arrive in the morning, whether they must
clock in, when lunch breaks occur, and how frequently pay is distributed.
The application of terms and conditions to employees cannot be based on protected classifications. The rules should apply to all employees without
consideration of sex, race, national origin, age, or the like. Unfortunately, cases abound in which employees are mistreated.
In EEOC et al. v. Jackson National Life Insurance Company et al., high-level executives threw stress balls at African American employees, touched female
workers and called them “resident street walkers,” kissed subordinates on their lips, and made lewd sexual comments. The court awarded $20.5
million (EEOC, 2020 (https://www.eeoc.gov/newsroom/jackson-national-life-insurance-pay-205-million-settle-eeoc-lawsuit) ).
Walgreens settled a race discrimination case in which it discriminated against African American retail management and pharmacy employees in
promotion, compensation,and assignment of job duties. The settlement was for $20 million (EEOC, n.d. (https://www.eeoc.gov/initiatives/e-race/significan
t-eeoc-racecolor-casescovering-private-and-federal-sectors) ).
A restaurant in Baltimore refused to hire African Americans. The EEOC obtained a $1.3 million settlement for all African Americans who had applied
for jobs and were turned away (Rector, 2014).
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Bass Pro Outdoor World, LLC, routinely denied retail positions such as cashier, sales associate, team leader, supervisor, and manager to African
Americans. Managers made overtly racially derogatory remarks in acknowledging the discriminatory practices, stating that hiring African Americans
did not fit with the company’s corporate profile. Employees who opposed the company’s unlawful policies were fired. Bass settled with the EEOC for
$10.5 million and agreed to the appointment of a director of diversity and inclusion and a timeline to demonstrate improved hiring policies (EEOC,
Numerous cases exist in which African American employees were paid less than their White coworkers. In EEOC v. Williams Country Sausage Co. (2010), an
employer gave raises and paid higher salaries to all maintenance department workers except the lone person of color in the department. City Sports settled
with the EEOC for $420,000 when it refused to hire and promote African Americans and Hispanics into management positions and instead favored Koreans
(EEOC, 2020 (https://www.eeoc.gov/newsroom/city-sports-pay-420000-settle-eeoc-race-and-national-origin-discrimination-lawsuit) ). And Dillard’s Department Store
settled for $900,000 for refusing to post managerial positions at its retail stores or to promote African American employees into management positions (EEOC,
2020 (https://www.eeoc.gov/newsroom/dillards-pay-900000-resolve-eeoc-race-discrimination-lawsuit) ).
In 2020, the EEOC saw 23,976 cases of race discrimination filed. These cases represent situations in which an employer was not able or did not wish to
intervene successfullyand the employee discriminated against had the tenacity to pursue a meaningful outcome (EEOC, n.d. (https://www.eeoc.gov/statistics/char
ge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020) ).
Discrimination on the Basis of Mutable and Immutable Characteristics
One aspect of discrimination that can cause confusion is discrimination on the basis of mutable and immutable characteristics. An immutable characteristic
is one that is not changeable or is too important for anyone to be asked to change, such as one’s race or religion. A mutable characteristic is one that is
changeable, such as one’s hairstyle or style of dress. In this section, we will compare discrimination based on skin color and discrimination based on hairstyles
and grooming.
Discrimination on the Basis of Color
During the past several years, the EEOC has observed an increasing number of color discrimination filings at agency field offices across the country (EEOC,
n.d. (https://www.eeoc.gov/initiatives/e-race/why-do-we-need-e-race) ). In fact, EEOC statistics show that discrimination on the basis of color is increasing at a far
faster rate than other types of discrimination (EEOC, n.d.) (https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020) . Table 4.1
provides a glimpse into how the EEOC tabulates data for the protected class of color.
Table 4.1: EEOC filings regarding discrimination on the basis of color
FY 2010
FY 2011
FY 2012
FY 2013
FY 2014
FY 2015
FY 2016
FY 2017
FY 2018
FY 2019
FY 2020
% of all claims filed
Number of claims
Cause found
Monetary benefits (millions)
Sources: U.S. Equal Employment Opportunity Commission. (n.d.). Color-based charges (charges filed with EEOC) FY 1997–FY 2020. https://www.eeoc.gov/statistics/color-based-charges-charges-filed-eeoc-fy1997-fy-2020; U.S. Equal Employment Opportunity Commission. (n.d.) (https://www.eeoc.gov/statistics/color-based-charges-charges-filed-eeoc-fy-1997-fy-2020) . Charge statistics (charges filed with EEOC) FY 1997
through FY 2020. https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020 (https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020)
The first row shows what percentage of claims filed for all protected classes was based solely on skin color. So, for example, in FY 2010, out of 100% of all
claims filed with the EEOC for every type of discrimination, 2.8% were on the basis of color. From FY 2010 to FY 2020, the percentage of EEOC filings based on
color nearly doubled, a significant increase. In FY 2020, 3,562 claims of color discrimination were filed. Of these, the EEOC found cause in only 1.9%, or
roughly 72 cases. Those cases were settled out of court for more than $13.8 million.
In EEOC v. SLS Hotel South Beach (2018), a Miami hotel paid $2.5 million to settle a lawsuit with the EEOC for discriminating against Black Haitian dishwashers
who were replaced with lighter-skinned Hispanic workers. The supervising chefs allegedly referred to the dishwashers as “f—ing Haitians” and “slaves” and
prohibited them from speaking Creole even among themselves, whereas Hispanic employees could speak Spanish. The preference given to lighter-skinned
workers over darker-skinned workers was held to be discrimination on the basis of color.
In EEOC v. Applebee’s Int’l Inc., Applebee’s settled a discrimination lawsuit brought by a darker-skinned African American employee who was discriminated
against by his lighter-skinned African American manager. The manager fired the employee when he complained to the company’s corporate headquarters. The
company settled with the employee for $40,000. Most remarkable was that a corporation as large as Applebee’s did not have a written policy in effect at any of
its nationwide restaurants that prohibited discrimination based on color. Applebee’s now has amended its harassment and discrimination policies to include
color as a protected basis in accordance with Title VII (EEOC, 2003).
Protection of Hair Styling and Grooming
An interesting subset of color and race discrimination has to do with hair styling. Title VII protects people from discrimination on the basis of race and color,
yet it does not protect some of the hairstyles that are related to one’s race or ethnic heritage. May a business legally prohibit certain types of hairstyles,
especially those that are endemic to Black culture?
In EEOC v. Catastrophe Management Solutions (2017), Catastrophe Management Solutions had a company policy that it would not hire anyone, Black or White,
who wore an “excessive” hairstyle, a category that included dreadlocks. The company interviewed an African American woman for a job, and she moved
positively through the application process. The hiring supervisor advised her to come to her final interview with her hair hidden, which she did, and she got
the job. She showed up with dreadlocks on her first day of work, and the company rescinded its job offer.
The EEOC sued on her behalf. The case was eventually heard by a court, which held that
banning dreadlocks in the workplace under a race-neutral grooming policy—without more—does not constitute intentional race-based
discrimination. First, dreadlocks are not . . . an immutable characteristic of black individuals. Second, the allegations in the complaint do not lend
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themselves to a reasonable inference that, in applying its grooming policy to dreadlocks, CMS discriminated against Ms. Jones because of her race.
Federal anti-discrimination law does not prohibit discrimination on the basis of hairstyle, such as locs, which the court considers a mutable characteristic. The
court distinguished discrimination based on race from discrimination based on hairstyles, stating that hairstyles have only a cultural link to race or Blackness
rather than being an immutable trait of one’s race. The EEOC argued that the wearing of an African American hairstyle by a Black person has been so
appropriated as a cultural symbol by Black people as to make its suppression either an automatic badge of racial prejudice or a necessary abridgement of
First Amendment rights. Nevertheless, the court was unpersuaded.
In Carswell v. Peachford Hospital (1981), no race discrimination was found when a Black employee was discharged for refusing to remove the beads from the
ends of her cornrow braids. The court reasoned that a hairstyle is not an immutable characteristic, and it was the employee’s refusal to remove the noisemaking beads that led to her discharge. Similarly, in Rogers v. American Airlines, Inc. (1981), American Airlines prohibited employees who had contact with
customers from wearing all-braided hairstyles. Again, because the policy applied equally to all races and sexes and was not based on immutable
characteristics, the case was dismissed.
As a result of court decisions such as these, there has been a movement in the United States aimed at allowing people to wear their hair in accordance with
their culture. In 2020, legislation referred to as the CROWN Act (Creating a Respectful and Open World for Natural Hair) passed the House of Representatives.
This legislation makes it illegal to discriminate against people on the basis of how they wear their hair. Seven states—California, New York, New Jersey, Virginia,
Colorado, Washington, and Maryland—have also passed legislation that makes discrimination on the basis of hairstyle illegal.
Another series of cases addressed mandating that African American men shave off facial hair (beards and mustaches) as part of their employment. This
presents an issue that is different from hair styling. Many African American men suffer from a skin condition called pseudofolliculitis barbae, which can cause
severe irritation brought on by shaving every day. In Bradley v. Pizzaco of Nebraska Inc. (1991), a court found that forcing someone with this condition to shave
is discriminatory.
For more examples of discrimination based on mutable characteristics, see the section “Religious Garb and Grooming” in Chapter 6.
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4.4 Litigating a Race Discrimination Case
As discussed in Chapter 3, the first step in trying to resolve a discrimination lawsuit in the workplace is through an employer’s HR department and, if that fails,
through the mediation and conciliation processes of the EEOC. Additionally, an employer can bring in an arbitrator to decide the case. If these methods fail, or
if the employee prefers, a lawsuit may be brought against the employer. The purpose of this section is to explain some of the aspects of a race discrimination
lawsuit and provide some insights into why litigating in court has definite drawbacks as well as positive aspects.
Some significant issues for plaintiffs who pursue discrimination lawsuits include the following:
Although discrimination cases can also be brought in state courts, attorneys prefer federal court because of its experience with handling these cases.
The attorney for the plaintiff begins by filing a complaint, which consists of the allegations of the case to which the defendant will respond. In a Title
VII case, the plaintiff has the initial burden of convincing the court that there is enough evidence to make a case of discrimination.
It can take 3 to 5 years from the time a discriminatory incident takes place to the time a judge or jury makes a decision. Preparing a case for trial is a
lengthy and time-consuming task that involves many steps. One part of the process is discovery, or interviewing witnesses for both the plaintiff and the
defendant in order to determine what the witnesses will say in court. The attorneys also prepare a great deal of paperwork for the court, including
arguments about the law that advocate for their clients. In addition, courts are overflowing with cases and there are not enough courtrooms to
accommodate them quickly. Imagine suffering from discrimination and not having the opportunity to have a trial for 3 or more years. In that time,
witnesses may forget details, move away, or die.
Even if the plaintiff prevails under Title VII, monetary damages are capped. However, lawsuits brought under § 1981 have no caps on punitive
damages for intentional discrimination. Therefore, plaintiffs usually sue under both laws.
There are four approaches that can be taken to prove race discrimination under Title VII and § 1981: disparate treatment, disparate or adverse impact, racial
harassment, and retaliation.
Disparate Treatment
Disparate treatment discrimination under Title VII means that an employer discriminated against a worker intentionally, or treated a worker in a way that
was dissimilar to how other workers were treated. There are two ways to prove intentional discrimination: by direct evidence and by indirect, or
circumstantial, evidence. Direct evidence is evidence that directly proves a fact. It does not require any reasoning or inference to arrive at the conclusion to be
drawn from the evidence. For the most part, the days in which employers voiced their prejudice overtly against workers are long gone. Most employers are
aware of the high price they could pay by losing a discrimination lawsuit, so they usually refrain from making or allowing discriminatory statements. But when
they do, they provide direct evidence that the plaintiff can use to convince a jury that discrimination took place.
More common are cases in which there is indirect evidence that proves intentional discrimination. Indirect, or circumstantial, evidence does not directly
prove a fact. Rather, it is evidence of another fact that could lead to the conclusion or inference that a wrong has been committed. When evidence is
circumstantial but points to intentional discrimination, the courts recognize the difficulty of proving the discrimination occurred. To aid plaintiffs, the courts
created a framework for them to follow to prove their allegations, named after the first case in which the framework appeared: McDonnell Douglas Corp. v.
Green (1973). Formally, this framework is referred to as the McDonnell Douglas burden-shifting framework.
Under the McDonnell Douglas framework, (1) the plaintiff bears the initial burden of establishing a prima facie case of discrimination. The term prima facie
means “at first face (appearance),” and a prima facie case is one that “on its face” appears to be discriminatory. For example, if an African American applies
for a job at a large company that has no persons of color working for it and she is turned down for a job, then on its face it appears that this company
discriminates against African Americans. Under the framework, then, the plaintiff must show that she is a member of a protected class, that she was qualified
for the position, that she was rejected for the position, and that someone not in a protected class with the same or fewer qualifications was hired instead of
Then (2) the burden shifts to the defendant, who must provide a legitimate, non-discriminatory reason for the adverse employment action, which in this case
was hiring someone other than the plaintiff. For example, the employer could provide as evidence the ré sumé of the applicant it hired and that applicant’s
salary requirements. If the applicant had much better qualifications than the plaintiff and also asked for a lower salary, the employer had a legitimate, nondiscriminatory reason for choosing the applicant over the plaintiff.
Last, (3) the burden shifts back to the plaintiff, who must demonstrate that the employer’s stated reason for the adverse employment action was merely a
pretext for intentional discrimination. A pretext is a reason given to justify a decision that is deliberately not the real reason but, rather, is a lie. For example,
the employer argues that it did not hire the plaintiff because she did not have sufficient educational qualifications. However, the plaintiff can show that the
employer hired others, not in a protected class, who had similar educational qualifications and provided them with on-the-job training to make up for the lack
of qualifications. Thus, she shows that the reason the employer gave for not hiring her was just a pretext and, in fact, the employer had discriminated against
Note that there are plenty of cases in which the evidence a plaintiff presents may start out looking like it proves discrimination but then the defendant can
prove that it did not discriminate. For example, suppose an employer argues that the plaintiff did not have sufficient education qualifications and can prove
that it never hires applicants who lack the necessary educational qualifications. This is a legitimate reason for not hiring the plaintiff and does not indicate
Burden shifting is summarized in Table 4.2.
Table 4.2: Burden shifting in a disparate treatment case under Title VII
1. The plaintiff begins
2. The defendant responds
3. The plaintiff rebuts
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If the plaintiff can prove the following four steps,
then the plaintiff has made a prima facie case:
1. The plaintiff is a member of a protected class.
2. The plaintiff is qualified for the position
3. The plaintiff was rejected for the position or
suffered some other type of harm.
4. Others who were similarly situated were
either treated more favorably or not
subjected to the same or similar adverse
treatment. (That is, someone outside the
protected class who was not better qualified
was hired instead.)
The defendant shows a legitimate, nondiscriminatory reason for the challenged action
or decision. But this reason is a pretext, meaning
that it is a lie thatmasks a discriminatory motive.
The plaintiff shows that the reason set forth by
the defendant is a pretext.
Practical Application: Burden Shifting
Paula Brook is a White woman, and Estelle Haverstram is an African American woman. Both had previous experience as restaurant servers, and both
applied for server jobs at the Our Host Restaurant Corporation. The company has a history of failing to hire many African Americans at its restaurants,
and its owner has been heard making statements about not wanting to hire Black people. Brook was hired, and Haverstram was not.
1. The plaintiff establishes a prima facie case.
a. The plaintiff is a member of a protected class: As an African American, Haverstram is a member of a protected class.
b. The plaintiff is qualified for the position sought: Haverstram proved that she had a good work record and was qualified for the position.
c. The plaintiff was rejected for the position or suffered some other type of harm: Haverstram was not hired.
d. Others similarly situated were treated more favorably or not subjected to the same or similar adverse treatment: Brooks, a White
person, was hired, whereas Haverstram, an African American, was not.
Therefore, Haverstram was successful in providing prima facie evidence of race discrimination.
2. The defendant produces evidence that it had a legitimate, non-discriminatory reason for its employment decision.
The hiring manager stated that he believed, based on his interview of both candidates, that Brooks was the best person for the position. She
came to the interview fully prepared, and during the interview she articulated the more thoughtful approach to being a server at the
3. The plaintiff must show that the defendant’s reason is a pretext for discrimination.
Haverstram could not disprove that the defendant’s reason was a pretext. Thus, Haverstram did not prevail in this case.
Slack v. Havens (1975) provides an example of disparate treatment race discrimination under Title VII. In this case, four Black women brought an action
against their former employer, charging discriminatory discharge and seeking damages. They were employed in the bonding and coating department at
Havens, along with one White woman named Murphy. Their immediate supervisor informed them that they would be expected to undertake a general heavy
cleaning of their department the following morning. Murphy was excused from the assignment. The four women protested that they had not been not hired to
do cleaning work and wondered why Murphy had been excused. The supervisor said, “Colored people should stay in their places” and that they are “hired to
clean because they clean better.” The women refused to do the janitorial work and were fired. They brought a claim under Title VII.
The court correctly looked beyond the employer’s lack of intent to discriminate and considered the consequences of its employment practices. Based on the
employer’s actions, the court found that there was discrimination in the terms and conditions of employment. Even if the employer did not mean to
discriminate, intent can be drawn from the totality of the circumstances, which is that the employer treated the Black workers much less favorably than it did
the White worker and imposed one standard for Black workers and another for White workers. In other words, intent can be proven from circumstantial
Disparate, or Adverse, Impact
Disparate, or adverse, impact discrimination occurs when an employer adopts a practice or policy that seems neutral and non-discriminatory on its face
but has a disproportionately negative effect on members of a protected class and has no legitimate business justification. For example, suppose an employer
requires that all its employees must have attended a private preparatory school rather than a public high school. On its face, this seems like a neutral, nondiscriminatory practice. But when it is applied, it affects poor people of color negatively because many poor families cannot afford to send their children to a
private prep school.
To prove disparate impact, a plaintiff must show that the seemingly neutral practice results in the hiring or promotion of applicants in a “significantly
discriminatory pattern.” The U.S. Supreme Court has approved three types of statistical comparisons for assessing the impact of an employer’s practice on a
protected group:
General population statistics can be used to compare, in a relevant geographic area, the percentage of protected workers adversely affected by the
employer’s practice with the percentage of nonprotected workers also adversely affected.
Applicant flow data compares the number of minorities in the pool of workers applying for a job or a promotion with the composition of workers
actually hired or promoted by the employer.
The available workforce statistic compares the percentage of a protected class in the relevant labor market, defined as those workers having the
requisite skills for the job, with the percentage of that class in the employer’s workforce.
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Once a plaintiff shows that a seemingly neutral practice had an adverse impact on her, the employer then has the option of showing that the reason for the
practice is a business necessity. For example, the employer might argue that persons who graduate from a private prep school are better equipped
academically and therefore make better workers. The plaintiff then has the opportunity to respond to the employer’s argument by showing that the practice
has no relationship to job performance and that the employer can apply an alternative practice that has less of a discriminatory impact on people of color. For
example, the employer could require that all its employees, as needed for specific jobs, have completed the necessary training to perform those jobs.
To defend its practice, the employer must meet the burden of proving that the practice has a relationship to job performance and thus is a business necessity.
If the practice is sufficiently job-related, the employer may continue with the practice even if it has an adverse impact on members of a protected group.
Griggs v. Duke Power Co. was the first case to establish the theory of disparate impact, and it still stands as good law today.
Case Analysis: Disparate Impact
Griggs v. Duke Power Co., 1971
Thirteen African American workers at the Duke Power Company’s Dan River Steam Station sued the company under Title VII. The Dan River plant was
organized into five operating departments: labor, coal handling, operations, maintenance, and laboratory and test. African Americans were employed
only in the labor department, where the highest-paying jobs paid less than the lowest-paying jobs in the other four departments. Only White people
were employed in those departments. In order to transfer out of the labor department, an employee was required to have completed high school and
to obtain a particular score on two general intelligence tests the company instituted.
The court acknowledged that Title VII does not require giving preference to members of a protected class. But what is required is the removal of
“artificial, arbitrary, and unnecessary barriers to employment that operate [harmfully] to discriminate on the basis of race” or other protected
The court found that there was no relationship between the education requirement or the tests and an employee’s ability to successfully perform the
jobs in the other four departments. A vice president of the company testified that the requirements were instituted because the company thought that
they would improve the overall quality of the workforce. But the evidence showed that employees in the four departments who had not completed high
school or taken the tests had performed their jobs satisfactorily, had advanced, and had been promoted. Thus, the court found that the requirements
were not needed for the reasons the company thought and, in fact, the practice amounted to discrimination, even if intent could not be proven.
Source: Griggs v. Duke Power Co., 401 U.S. 424 (1971).
Duke Power argued that everyone had to take the same test, Black or White, and therefore it was applied equally and was fair. But such an analysis completely
ignored the status of education in the South at the time of the case. Schools were segregated and little public money was given to schools in African American
communities, so few opportunities were available to people of color to receive a quality education. Even when there is no evident discrimination, disparate
impact discrimination occurs if an employment policy results in discrimination against a protected class so disproportionately that the court can infer
discrimination is indeed taking place.
Table 4.3 compares and contrasts disparate treatment and disparate impact.
Table 4.3: Disparate treatment versus disparate impact
How proven
Disparate treatment
Disparate impact
Employer intended to treat an employee less favorably because of
the employee’s membership in a protected class.
An employment practice or policy that is
neutral on its face,
but that has had a statistically significant adverse effect on
members of a protected class
and is discriminatory because there is no legitimate business
justification for it.
Follows the McDonnell Douglas model. Plaintiff must prove:
1. He belongs to a protected class.
2. He is qualified for the job.
3. Despite his qualifications, he was not hired or he
suffered some other type of harm.
4. After he was rejected, the employer continued to seek or
hire applicants outside a protected class with the same
or fewer qualifications than the plaintiff.
The employer provides a legitimate non-discriminatory reason
for the discrimination.
The plaintiff shows that the employer’s reason is a pretext, or
a lie to mask discrimination.
Plaintiff must show that one of three types of comparisons for
assessing the discriminatory impact of an employer’s practice
1. General population statistics:Compare % of protected
workers adversely affected with % of nonprotected
workers similarly affected.
2. Applicant flow data: Compare number of minorities in
pool who apply for a job or a promotion with the
composition of workers actually hired or promoted.
3. Available workforce statistic: Compare % of protected
class in labor market with % of that class in the
employer’s workforce.
The employer shows that the reason for the practice is a
business necessity.
The plaintiff shows that the practice has no relationship to job
performance and that an alternative practice would have less
of a discriminatory impact.
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Practical Application: Disparate Impact
Follow this hypothetical scenario and see if you can apply the disparate impact test presented in Table 4.3. Can you analyze these facts and decide
whether disparate impact occurred?
Big Data Corporation has several openings throughout the country in data-entry positions. The company is seeking candidates who have data-entry
and verbal communication skills. In addition to having all candidates go through the routine application process, Big Data requires that all candidates
take a series of tests:
The first is a data-entry test that measures timing and accuracy.
The second is a personality assessment that measures a candidate’s behavioral preferences and inclinations, which relate to retention and
overall success on the job.
The third is an aptitude test that measures how well a candidate is suited for the job.
The data-entry test is directly related to the requirements of the position. But the personality and aptitude tests are somewhat mixed in what they show
regarding how well a candidate would perform in the position. On the one hand, scores on the personality and aptitude tests tend to indicate the overall
satisfaction of employees and how they work with one another. On the other hand, it is difficult to prove a correlation between the two tests and the
overall success of the company and its employees.
Men tend to score best on the personality and aptitude tests.
Women tend to score best on the data-entry test.
Persons of color tend to score best on the data-entry and personality tests but tend to score least well on the aptitude test.
The company weighs each of the three tests equally, and, as a result, people of color are excluded from work.
1. Use the criteria and ruling set out in Griggs to discuss Big Data’s practice.
2. Do you think the use of the tests would be legal under Griggs? Why or why not?
Litigating a race discrimination lawsuit under § 1981 is somewhat different than under Title VII. First, a plaintiff bringing a case under § 1981 does not have to
exhaust administrative remedies as Title VII litigants do. This means that plaintiffs do not have to first seek the permission of the EEOC or obtain a Right to Sue
letter. Instead, they can proceed directly to court. Second, in terms of the burden of proof, § 1981 follows a but-for standard, meaning that but for race the
plaintiff would not have suffered. In other words, the plaintiff must prove that if it had not been for the employer’s actions regarding race (cause), the plaintiff
would not have suffered any discrimination (result). This is a more stringent standard than that required by Title VII.
Racial Harassment
A special subset of racial discrimination is racial harassment, or harassment based on an employee’s race. Racial harassment is disparate treatment
In a series of evaluations conducted in the early 2000s regarding the anti-discrimination policies of federal agencies, the EEOC (n.d. (https://www.eeoc.gov/feder
al-sector/model-eeo-programs-must-have-effective-anti-harassment-program) ) described what harassment of a protected class entails, based on what courts had
held in earlier lawsuits. To establish a viable claim of harassment, a complainant must show the following:
She belongs to a class that is protected by law.
She was subjected to unwelcome verbal or physical conduct involving the protected class.
The harassment complained of was based on the protected class.
The harassment had the purpose or effect of unreasonably interfering with her work performance; creating an intimidating, hostile, or offensive work
environment; or both.
5. There is a reason for considering the employer liable for the harassment (Ornelas v. Department of Justice, 2002).
An aggrieved employee is one who has suffered a personal loss or harm with regard to a term, privilege, or condition of employment for which there is a
remedy under Title VII (Brooks v. Department of the Navy, 1996). A complainant can sue only if an incident of harassment was sufficiently severe or pervasive
so as to alter the conditions of the complainant’s employment (Longoria v. Department of Veterans Affairs, 2005). For example, “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” In this
regard, it is important to realize that Title VII is not “a general civility code” (Rotarius v. Department of the Treasury, 2004). In addition, when determining
whether a work environment was hostile and thus violated antidiscrimination laws, a court takes into consideration what employees other than the
complainant thought about the general work environment (Jackson v. U.S. Postal Service, 1999).
Examples of cases for which the EEOC held that no harassment occurred include Corral v. U.S. Postal Service (1998), in which an employee was told to turn
down his radio, and Longoria v. Department of Veterans Affairs (2005),in which a supervisor—about whom the employee had previously filed a complaint of
sexual harassment—told an employee he needed to check on her to be sure she was doing her job. In both instances, the EEOC held that the supervisor was
providing needed feedback to an employee.
Several cases illustrate what racial harassment entails:
In EEOC v. Mike Enyart & Sons(2010), coworkers cut an African American worker’s belt with a knife while he was wearing it and showed him a swastika
that had been spray painted onto company equipment. The West Virginia company ended up paying $87,205 in lost wages and punitive damages.
In EEOC v. Papermoon-Stuart, Inc. (2010), the managers of a Florida club referred to Black employees using offensive racial slurs, forced Black
employees to work in the back of the club instead of at the club entrance, and complained that “black music makes the club look bad.” Company
managers did not stop the harassment, but instead either forced out or fired White employees who opposed the abusive conduct, resulting in a
settlement against the club of $95,000.
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In EEOC v. Wisconsin Staffing Services, Inc., the president of a staffing firm
made derogatory comments about the “ethnic appearance” of an employee,
Carolyn Red Bear. She suggested that Red Bear seek alternative employment
in personal home care, as that would be more consistent with the skills of
Native American people, and she made statements that Red Bear did not “fit
in” with the White community in Ladysmith, Wisconsin. Despite complaints,
the company allowed a non–Native American coworker to refer to herself by
the fictitious name “Pink Feather” at work, allegedly to mock Red Bear. The
company forced Red Bear out of her job when she refused to comply with a
directive from the company president to cut her hair, change her last name,
and stop “rubbing in” her heritage. The company eventually settled for
$20,000 and mandated training at its facilities for all managers and
employees (EEOC, 2010b).
In EEOC v. Ralph Jones Sheet Metal, Inc. (2011), an architectural sheet metal
company located in Tennessee agreed to pay $160,000 to former African
American employees to settle a racial harassment lawsuit in which the
supervisor regularly referred to African American employees with the
epithet “n—-r” and used other slurs. In addition, the EEOC charged that
fizkes / iStock / Getty Images Plus
racial graffiti was on display in common areas and on company equipment.
Diversity training is often mandated for corporations the EEOC
In EEOC v. A.C. Widenhouse (2014), Contonius Gill and other African
holds to be in violation of Title VII. Nowadays, many companies
American employees were repeatedly subjected to unwelcome derogatory
are proactive in offering employees anti-discrimination training in
racial comments and slurs by employees and managers at a trucking
order to encourage a diverse and equitable working environment.
company located in North Carolina. These comments and slurs included “n—r,” “monkey,” and “boy.” On one occasion, Gill was approached by a coworker holding a noose and was told, “This is for you. Do you want to hang from
the family tree?” The complaint alleged that on another occasion, the company’s general manager told Gill, “We are going coon hunting. Are you going
to be the coon?” Gill and other Black employees complained to management and the co-owner of the company about the racial harassment, but the
harassment continued. A jury awarded more than $200,000 in damages.
In EEOC v. NYU (2011), a New York University mailroom supervisor harassed an employee from Ghana, using racial slurs such as “monkey” and
“gorilla” and insults such as “Go back to your cage” and “Do you want a banana?” The supervisor made fun of the employee’s Ghanaian accent, called
his speaking “gibberish,” and expressed hostility toward all immigrants of African descent. In an excellent example of what not to do, NYU took months
to investigate the employee’s many complaints and then took virtually no corrective action. It seems likely that had NYU provided an immediate,
empathetic response and swift corrective action, it would have avoided the $210,000 penalty it had to pay in lost wages and compensation for the
emotional distress the employee experienced because of the unlawful conduct.
A Closer Look
Test Your Understanding of Discrimination Concepts
Would you like some feedback on your understanding of discrimination concepts? The EEOC has developed a challenge (https://www.eeoc.gov/youth/ch
allenge-yourself-21 ) that you can take to test your knowledge and gain some insight into your understanding.
Retaliation is the most common complaint made to the EEOC. Recall from Chapter 1 that retaliation occurs when an employee reports a violation of antidiscrimination law to a supervisor and then, instead of getting relief, is punished for making the report. For example, in EEOC v. Dart Energy Corp. (2014),
minority employees regularly heard racist terms and demeaning remarks about green cards and deportation. Racial slurs were used in reference to Black,
Hispanic, and Native American employees, and the “N” word was commonly used. Several employees complained to management, but their complaints were
minimized or ignored entirely. A supervisor told the employees to stop complaining to him or, if they did not like the working conditions, to quit their jobs.
Several employees who took their complaints to the EEOC were either demoted or fired. A demotion or firing for reporting discrimination to the EEOC is
exactly the type of retaliation that is a violation of the law. As a result, the EEOC filed suit, and the company paid more than $1.2 million in damages.
The most important thing to understand about retaliation is how broad the protection is. Ironically, an employer may not be liable for discrimination, but if an
employee complains about perceived discrimination and suffers a consequence, then the employee has a case for retaliation. Therefore, it is essential that
employers and managers are wary of making any comments or taking actions that might be interpreted as retaliation. Some legal writers encourage employers
to limit an investigation for discrimination to as few people as possible. It takes knowledge of discrimination to retaliate, so the fewer people aware of
allegations of discrimination, the fewer people there are who can retaliate.
Employees covered by laws that protect against retaliation are those who
made a charge of discrimination;
testified in a discrimination hearing;
assisted or participated in an investigation, proceeding, or hearing;
claim to be a victim of discrimination; or
oppose the discrimination.
Any attempts to “get even” are retaliation. For example, in EEOC v. U-Haul, a U-Haul employee subjected to racial slurs and other racially offensive comments by
his White supervisor was fired when he reported the treatment to the president of the company. Firing an employee for reporting discrimination is retaliation.
The company ended up settling the claims for more than $750,000 (EEOC, 2013b).
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In EEOC v. AA Foundries, three African American workers at a manufacturing plant were subjected to a relentless environment of racial hostility. Not only did
their supervisor use the “N” word, but he also called adult African American male employees “mother-f—–g boys,” posted racially tinged written material in
the break room, and routinely slandered the employees by referring to them as “you people” and accusing African Americans of always stealing and wanting
welfare. If the story stopped there, it would be easy to prove a case of disparate treatment. But the story goes on.
Several employees who had suffered the supervisor’s abuse filed racial harassment charges with the EEOC. Rather than investigate and maintain a semblance
of professionalism, coworkers of the complainants displayed a noose in the workplace, and in response to employee complaints about this noose, the
superintendent described the reports as “BS,” stated that the noose “was no big deal,” and said the complainants were “too sensitive.” When the case got to
court, the supervisor denied that racial harassment occurred at AA Foundries and maintained that the company had done nothing wrong. In response to
questioning, however, he admitted that it did not bother him to hear racially derogatory language at the plant. It took two trials and one appeal for this case to
be resolved. But the EEOC did win an injunction against the company, ordering the company to implement a policy prohibiting race-based discrimination,
disseminate it to all employees, and conduct 1 hour of Title VII training. The employer also had to pay two employees $50,000 each and two others $40,000
and $20,000, respectively (EEOC, 2014b).
In Humphries v. Cracker Barrel Restaurant (2004), an employee was dismissed from his position at Cracker Barrel because he complained to one of his
managers when an assistant manager dismissed a Black employee for race-based reasons. He sued in federal court under both Title VII and § 1981. The part
of the lawsuit brought under Title VII was dismissed. But the question of whether § 1981 encompasses retaliation claims was argued before the U.S. Supreme
Court. The court held that § 1981 can also be used for retaliation, which is significant for the reasons described in Section 4.2.
Practical Application: Applying Best Practices to an HR Problem
Go to the EEOC website Best Practices of Private Sector Employers (https://www.eeoc.gov/best-practices-private-sector-employers) .
Go to Section II, Section B: Comprehensive Programs Presented by Companies.
Choose one company that is highlighted in the report.
Discuss what program the company implemented, why it felt the need to do so, and the success and results of the program.
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4.5 The Reality of Preventing Racial Discrimination
Most, if not all, of the cases in this chapter have one striking factor in common: The employer failed to develop internal guidelines that prohibited
discrimination or, if such guidelines existed, they were not enforced. Also striking is the number of cases in which employees reported incidents to managers
who did nothing to alter the conditions of employment.
One of the main reasons why employers fail to prevent discrimination is that there is no commitment to doing so. The chances of getting caught or being
penalized for discrimination are low. A study conducted between 2010 and 2017 showed that the EEOC closes most of its cases without deciding whether
discrimination took place. This is most likely because the agency is so underfunded that there is not enough money to pay for many investigations (Jameel &
Yerardi, 2019).
More than 55% of all workers in private industry must settle any disagreements with their company through mandatory arbitration. Among companies with
1,000 or more employees, the number is 65% (Bickerman, 2020). With binding arbitration, a worker cannot take an employer to court himself, but he can file
with the EEOC and the EEOC can sue the employer on the employee’s behalf. However, the EEOC brings only a small percentage of complaints to trial. In 2020,
it received 67,448 complaints and filed 97 suits, and its merit factor resolution rate was 17.4% (EEOC, n.d. (https://www.eeoc.gov/statistics/eeoc-litigation-statistic
s-fy-1997-through-fy-2020) ; EEOC, 2021b). (Merit resolutions are charges that are resolved through an administrative process, such as mediation or
conciliation, in favor of the plaintiff without having to go to court.) Although the EEOC is an important and helpful agency, its reach goes only so far. This makes
the possibility of reporting and settling a discrimination dispute unlikely for most workers in private industry.
Finding the evidence to prove discrimination is also exceedingly difficult, given that employers control their files and data and can bury relevant information.
Yet, many high-profile companies do create and effectively manage non-discrimination policies. The alternative, allowing a workplace to become overrun with
racist misbehavior, not only makes it intolerable for the workers being abused but also subjects the entire business—and its brand—to public exposure of its
internal problems. Racial discrimination and harassment in the workplace are so widespread that AdAge has a blog (https://adage.com/article/cmo-strategy/regul
arly-updated-blog-tracking-brands-responses-racial-injustice/2260291) that regularly tracks brands’ responses to racial injustice. In January 2021 alone, companies
supporting new anti-discrimination endeavors included TikTok, Starbucks, Mtn Dew, Chevy, and Animal Crossing (Ad Age, 2021).
Reading all of the examples in this chapter of racist behaviors ranging from unkind to diabolical, one has to wonder what steps could have been implemented
to avoid the outcomes, including large financial settlements and EEOC supervision. The answer is best practices (Chapter 2). It is in the best interests of all
employers, whether they are multinational conglomerates or small partnerships, to have best practices in place that help them avoid bias and harassment of
their workers.
Practical Application: EEOC Guidelines on Writing an Effective Non-Discrimination Program
One of the assignments you might receive as a new member of an HR team would be to review documents and make suggestions for improvement. This
EEOC website (https://www.eeoc.gov/federal-sector/model-eeo-programs-must-have-effective-anti-harassment-program#suggestions) provides guidelines on
writing an effective non-discrimination program.
Recall from Chapter 2 that best practices are professional policies and procedures that are accepted as being correct or most effective in achieving desired
results. Best practices promote equality in the workplace and demonstrate a serious commitment from management to devote the time and resources
necessary to ensure success. Any worthwhile anti-discrimination program begins with communication among management and workers to engage in
thoughtful and open discussions about how to most effectively create an equitable environment. It is often helpful to identify one person in a business to
handle equity issues so that employees know who will be responsive to their problems.
The EEOC suggests, among many policies, that all businesses
Adopt a policy that treats employees as individuals.
Incorporate the core policies of the organization into the anti-discrimination policies.
Make employee training a part of every employee’s job and begin training from their first day.
Designate an individual to handle all discrimination claims and to oversee the implementation of the latest rules and regulations.
Adopt a grievance procedure that includes management and staff in overseeing any disputes that arise.
Swiftly deal with reports of harassment and follow up all warnings with decisive action.
Make sure that retaliation does not occur by keeping complaints confidential and admonishing any participants in an investigation that retaliation will
have consequences.
Incorporate the anti-discrimination policies into orientation and handbook materials. (EEOC, n.d.) (https://www.eeoc.gov/federal-sector/model-eeo-progr
A Closer Look
A Model Private Employer’s Best Practices for Racial Equity
Prudential Insurance Company of America is one of the largest diversified financial services institutions in the world. The company offers a full range of
insurance, investment, health care, and real estate products and services to both individuals and institutions. Prudential is headquartered in Newark,
New Jersey, and employs more than 90,000 employees.
One of Prudential’s most successful programs has been its partnership with INROADS, a group dedicated to placing talented minority youths in
business and industry to prepare them for corporate and community leadership. The program is used by several major Prudential facilities in the
United States. Prudential’s corporate office in Newark, New Jersey, is the largest corporate sponsor of INROADS interns in Northern New Jersey.
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Prudential also relies on other programs, including sponsors for educational opportunities and summer interns from local colleges. Prudential
indicates that these programs have been a rich source of outstanding minority employees.
Source: U.S. Equal Employment Opportunity Commission. (n.d.). Best practices of private sector employers. https://www.eeoc.gov/best-practices-private-sector-employers (https://www.eeoc.gov/best-practic
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Chapter Summary
Key Concepts
Discriminatio n on the basis of race and color is still a widespread phenomenon in U.S. society and is reflected in the workplace, more than 150 years
after Congress passed civil rights laws meant to protect Black and African American people. In fact, discrimination on the basis of color is increasing in
the United States at a far faster rate than other types of discrimination.
Race and color discrimination in employment are covered primarily by three federal laws:
Section 1981 (42 U.S.C. § 1981) allows plaintiffs to go directly to court to sue their employers for money damages regarding race and color
discrimination (but not other types of discrimination based on a protected class). It also has a longer statute of limitations than Title VII does,
allows for the award of compensatory and punitive damages, does not involve the EEOC, and covers all employers, no matter their size and
types of workers. To prevail in a § 1981 lawsuit, a plaintiff must prove intentional discrimination and that race or color was a motivating factor
in the defendant’s decision.
The Civil Rights Act of 1964, Title VII, prohibits numerous types of discrimination, including discrimination on the basis of race and color.
Before plaintiffs can bring a lawsuit under this statute, they must first exhaust all administrative remedies through the EEOC, a federal agency
that oversees discrimination complaints. Only when the EEOC releases a Right to Sue letter may the plaintiff litigate.
The Civil Rights Act of 1991 amended the Civil Rights Act of 1964 to extend its reach to U.S. firms that had workers overseas and to make
changes in how discrimination must be proven in court.
The recruiting and hiring process is one area of employment in which HR professionals must be mindful of avoiding discriminatory practices.
Job descriptions and advertisements must use appropriate, non-discriminatory language. Applicant searches should cast a wide net in order to
attract the best candidates for a position. As such, employers should avoid relying on word-of-mouth advertising and nepotism and should
ensure that their use of applicant tracking systems does not result in unintentional discrimination. In addition, employers should not discourage
qualified applicants by imposing requirements that are unnecessary to perform a job.
During the application and interview process, employers should not raise the issue of race and color. If an employer must gather ethnographic
data about applicants for affirmative action purposes or to track applicant flow, the data should not include any identifying information and
should be stored separately from employment documents linked to specific persons.
Applicants with a prior criminal history are protected by law from discrimination. Employers are responsible for providing a safe workplace
but should not automatically discount an applicant based on the applicant’s prior convictions. Rather, employers must determine whether an
applicant is “likely to be a responsible, reliable, or safe employee” by considering how long ago a conviction took place, the nature and
seriousness of the crime, and the relationship of the crime to the job.
Employers must ensure equity in the terms and conditions of employment for workers after they are hired. All rules an employer develops to
govern employees must be applied fairly to all employees, regardless of an employee’s membership in a protected class. Allowing employees to
denigrate minorities, display prejudice, or otherwise behave in a way that violates anti-discrimination law should be immediately stopped and
Immutable characteristics of a person are those that cannot be changed or that are too important for anyone to be asked to change, such as skin color,
heritage, or religion. Mutable characteristics, on the other hand, can be changed, such as hair color or styling. Immutable characteristics are protected
by law; mutable characteristics are not. Therefore, discrimination against persons of color for their hairstyles or grooming choices is legal because
generally these are mutable characteristics. However, if a grooming choice is the result of an immutable characteristic, such as a skin condition,
discriminating against it is illegal.
There are four approaches that can be taken to prove race discrimination under federal and state anti-discrimination laws:
Disparate treatment discrimination, or intentional discrimination, can be proved with direct or indirect evidence. To prove discrimination when
there is indirect evidence of it, a plaintiff may use the McDonnell Douglas burden-shifting framework. With this framework, the plaintiff must
show that she is a member of a protected class who was denied a privilege of employment she was qualified for, such as a promotion, and a
person not in a protected class who was not qualified was awarded the privilege. The employer then must show a legitimate, nondiscriminatory
reason for its decision regarding the privilege. The plaintiff then must show that the defendant’s reason is a pretext, or lie.
Disparate, or adverse, impact discrimination is unintentional and occurs when an employer’s seemingly neutral practice or policy adversely
affects a protected class and has no legitimate business justification. To prove disparate impact, a plaintiff must show with general population
statistics, applicant flow data, or the available workforce statistic that an employer’s practice or policy results in a significantly discriminatory
pattern. To defend itself, the employer must prove that the practice has a relationship to job performance and thus is a business necessity.
Racial harassment is different from racial discrimination in that it involves unwelcome verbal or physical conduct regarding race or color, such
as slurs, threats, and other unkind and derogatory behavior. To prove harassment, a plaintiff must show that the conduct interfered with the
plaintiff’s job performance or created an intimidating, hostile, or offensive work environment in violation of anti-discrimination law.
Retaliation occurs when an employee is punished for reporting a violation of anti-discrimination law, even if no discrimination took place. To
avoid retaliation complaints, employers must ensure that they do not make comments or take actions that might be interpreted as “getting
even” with an employee for filing a complaint.
Preventing race discrimination and harassment in the workplace starts with an employer developing and implementing detailed and appropriate
policies regarding equity. The EEOC suggests that, among other things, employers adopt policies that treat employees as individuals, train all
employees on anti-discrimination policies routinely, and stop and punish discrimination and retaliation swiftly.
Key Terms
Click on each key term to see the definition.
A U.S. federal civil rights statute passed in 1866 that gives all persons the right to make and enforce contracts regardless of race.
Software that helps an employer manage the job recruitment and hiring process, in part by categorizing applicants according to the data provided on ré sumé s
and other application materials.
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A standard of proof met when a plaintiff proves that if it had not been for an employer’s actions (cause), the plaintiff would not have suffered any
discrimination (result).
Evidence that directly proves a fact and thus does not require any reasoning or inference to arrive at the conclusion to be drawn from the evidence.
Unintentional discrimination that is based on a practice or policy that seems neutral and non-discriminatory on its face but that has a disproportionately
negative effect on members of a protected class and has no legitimate business justification.
Intentional discrimination against a person based on that person’s race, color, religion, gender, national origin, age, or disability.
Landmark decision by the U.S. Supreme Court that established the theory of disparate impact as a cause for racial discrimination.
A human characteristic that is not changeable or is too important for anyone to be asked to change, such as one’s race or religion.
Evidence that does not directly prove a fact but, rather, is evidence of another fact that could lead to the conclusion or inference that a wrong has been
A framework for plaintiffs to follow in order to prove allegations of intentional discrimination when the evidence for that discrimination is circumstantial: (1)
Plaintiff is a member of a protected class, (2) plaintiff suffered an adverse employment action, (3) plaintiff met an employer’s qualifications at the time of that
action, and (4) plaintiff was treated differently from a similarly situated person outside the plaintiff’s protected class.
A human characteristic that is changeable, such as one’s hairstyle or style of dress.
Favoritism shown to a relative when hiring for a position or regarding other terms and conditions of employment.
A case that “on its face” appears to be discriminatory, which is supported by a plaintiff’s evidence.
Harassment based on race that occurs when an employee is subjected to unwelcome verbal or physical conduct sufficiently severe or pervasive so as to
interfere with the employee’s work performance; create an intimidating, hostile, or offensive work environment; or both.
Passing news of a job opening to friends, associates, and other network connections rather than advertising it to a wider pool of possible applicants.
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Introduction to Employment
Richard Levine / age fotostock
Learning Outcomes
After reading this chapter, you should be able to
Understand the extent and effect of discrimination in the U.S. workplace.
Discuss how discrimination throughout the United States led to passage of the Civil Rights Act of 1964 and other key anti-discrimination
Define the protected classes and describe how employers ensure legal protections for these classes.
Explain the various approaches to resolving discrimination disputes between employees and employers.
Describe the different types of remedies available when a court finds an employer has intentionally discriminated against its employees.
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3.1 Introduction
With this chapter, we begin several chapters that discuss various types of employment discrimination. Discrimination is unfair or unequal treatment of an
employee or a group of employees based on a protected characteristic: race, color, sex/gender, national origin, religion, age, or disability. It is an unfortunate
reality that despite the passage of laws more than a century ago that prohibited discrimination on the basis of race, color, and ethnicity, discrimination is still
front and center in many workplaces. It affects every aspect of employment, from the hiring process to termination. In a study analyzing 21 years of data from
the Equal Employment Opportunity Commission (EEOC), results showed that bias against Black and Hispanic employees has not improved in two decades
(Paychex, 2019). How extensive are discrimination claims in employment? Between 2010 and 2019, more than 1 million cases were filed with just the EEOC,
the federal administrative agency that oversees discrimination in employment. Of those 1 million cases, retaliation was the most frequent type, followed by
racial and sex discrimination (Jameel et al., 2019).
In terms of time and money, discrimination lawsuits against employers are a huge drain on the economy. In one examination of cases whose damages were
disclosed publicly, from 2000 to 2018 there were “252 cases [out of 680] in which corporations paid $1 million or more to resolve a discrimination or
harassment claim. These include 62 with payments of $10 million or more and three with $100 million or more” (Mattera, 2019, p. 10). For example, in 2018,
Dollar Tree paid $45 million to settle gender discrimination allegations regarding more than 37,000 female store managers (p. 3). Yet, despite big payouts,
bringing a lawsuit against an employer can have negative consequences, such as the risk of retaliation by the employer. If a grievant chooses to sue, he must
hire an attorney to represent him in court. Often, cases take years to wind through the system, and attorney’s fees may run into the hundreds of thousands if
the grievant loses his claim. If the grievant prevails, his attorney’s fees are covered by the EEOC, but this is not the case with private lawsuits. For an employer
defending an action, not only does it also have to pay attorney’s fees, but business is interrupted and distracted by the legal proceedings. Employees must
work with the employer’s attorneys to prepare for trial, taking up hours of valuable time. It is an immense task to defend a multimillion-dollar lawsuit, and one
that can have severe repercussions should the employer lose.
The financial aspect of discrimination lawsuits does not even begin to touch on the emotional toll that discrimination has on the workplace. Each case in this
chapter involves a person who has suffered from being treated differently than his or her coworkers, perhaps being paid less or denied benefits that others
receive. It seems obvious that a more humane approach would be to create a workplace in which discrimination, retaliation, and harassment are prevented
before an employer and employees are damaged by them. Yet, too many cases illustrate that often supervisors take no action when learning of inappropriate
behavior and that they allow employees to engage in bullying and sexual harassment until the aggrieved person either leaves or a third party steps in to stop
A plan to prevent discrimination needs development, as does a plan to educate employees about discrimination, oversee and update data, communicate
changes in the law to the workforce, and create enforcement procedures. But to do all these things requires familiarity with discrimination rules and
regulations. Having familiarity with the law does not mean you have to become a walking encyclopedia, but it does require that you have a grasp of the major
legislation, court interpretations, and applications as they affect a business. Because discrimination law is so extensive, it is also necessary to learn how to find
relevant information. In this chapter, you will see numerous links to websites that refer you to sources that can help you remain up to date on various topics.
This chapter will also explore what protected classes are and how employers can ensure legal protections for these groups, approaches to resolving instances
of employment discrimination, and remedies a court will apply when an employer is found to have intentionally discriminated.
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