Edward P. Lynch, Gregory C. Parliman, Patrick J. McCarthy, Michael T. Bissinger, Theresa A. Kelly, and Mary B. Rogers, Editors
Pitney Hardin LLP

Vol. 16, No. 8
June 2008

EMPLOYMENT DISCRIMINATION

EEOC addresses associational discrimination and code words

The Equal Employment Opportunity Commission (EEOC) is in the middle of its E-Race Initiative, which is designed to eliminate race and color discrimination in the workplace by identifying issues that contribute to it. The commission intends to achieve its goals for the E-Race Initiative by 2013. Two factors it's currently addressing are associational discrimination and code words.

Associational discrimination

Associational discrimination is discrimination against job applicants and employees based on their association with persons (friends, spouses, or relatives) of another race or ethnic group. In trying to weed workplaces of systemic discrimination, the EEOC is suing employers across the country for this newly identified type of discrimination.

In 2007, the EEOC filed suit against a restaurant for allowing customers to harass a white employee because she associated with persons of a different race. The commission was involved in two similar claims in 2006. In one instance, it settled a case in which a management employee for a furniture chain referred to interracial couples as "Oreos" and "zebras" and disparaged an African-American female employee for marrying a white man. It settled another case in which a white female employee who worked without any problems was terminated after management saw her biracial children.

Associational discrimination is treated the same way as other types of discrimination that are based on race or color. Employees must be free to associate with members of other races or ethnic groups without concern that doing so will negatively affect their jobs. Accordingly, management must treat alleged violations of an employee's freedom of association the same way it would treat other allegations of discrimination or harassment.

Code words

The EEOC has also seen an influx of cases dealing with employees and managers using code words to racially harass and degrade other employees. The use of code words is being prosecuted in the same manner as other racially derogatory speech.

In 2007, the EEOC filed a racial harassment suit against an employer that terminated a black employee for complaining that a coworker repeatedly referred to him as "Cornelius" in reference to an ape from the movie Planet of the Apes. That same year, the commission settled a harassment suit in which a male employee who was of Chinese and Italian ancestry was taunted daily with code words, including being repeatedly called "Bruce Lee." The EEOC also settled a lawsuit in which a supervisory employee referred to a file clerk as "reggin" ("n_gger" spelled backward) and then fired the clerk after she complained. The commission treats code words the same way it treats words that have been historically considered racial epithets.

Bottom line

Be mindful that complaints of discrimination based on association or the use of code words should be treated the same way as all other complaints of discrimination. Proper equal employment opportunity policies and enforcement of those policies can help you successfully prevent lawsuits ― and defend against them, should the need arise.

Find out more about discrimination in the workplace in the subscribers' area of www.HRhero.com, the website for New Jersey Employment Law Letter. You have access to an HR Executive Special Report on the subject: "Recognizing & Responding to Workplace Discrimination." Just log in and scroll down to the link for all the Special Report titles. Need help? Call customer service at (800) 274-6774.

Copyright 2008 M. Lee Smith Publishers LLC

This newsletter is intended for general information purposes only, and should not be used or taken as legal advice or legal opinion on any specific facts or circumstances.