Charges alleging race discrimination in employment were included in over a third of the charges filed with the Equal Employment Opportunity Commission (EEOC) in 2006, making race still the most frequently alleged basis of employment discrimination under federal law.
Ancestry. For example, discrimination against all persons of Asian ancestry would violate Title VII.
Physical characteristics associated with race. For example, discrimination based on an individual's color, hair, facial features, height, or weight could violate Title VII if the characteristic on which the employer is discriminating is associated with a particular race.
Race-linked illness. There are certain types of disease or illness that affect primarily persons of particular races. There are other diseases that aren't directly linked to race or ethnicity but have a disproportionately high incidence in certain groups.
Culture. Policies that discriminate based on cultural characteristics linked to race or ethnicity, such as a person's name, cultural dress or grooming practices, accent, or manner of speech may be challenged.
Perception. Title VII prohibits discrimination against an individual based on the belief or perception that a person is a member of a particular racial group.
Association. Title VII also prohibits discrimination based on association with someone of a particular race, such as discrimination against a Caucasian who's married to an African American or has a multiracial or biracial child.
Subgroup or race plus another factor. Title VII prohibits conduct such as rejection of African-American women job applicants who have preschool-age children while not rejecting women of other races who have preschool-age children. In this example, the employer isn't discriminating against all African Americans but is discriminating based on race within a certain subgroup of persons within that protected status.
Reverse race discrimination. Title VII prohibits race discrimination against all persons, including Caucasians.
Disparate-treatment and disparate-impact claims
There are two basic types of race and color discrimination claims under Title VII. Disparate-treatment discrimination occurs when race, color, or another protected trait is a motivating factor in how an individual is treated.
Disparate-impact discrimination occurs when a neutral policy or practice has a significant negative impact on one or more protected groups and either the policy or practice isn't job-related and consistent with business necessity or there's a less discriminatory alternative and the employer has refused to adopt it.
Section 1981 of the Civil Rights Act of 1866
There are several gaps in the protective umbrella of Title VII. One of these areas involves the special case of independent contractors. Independent contractors, when correctly categorized as such, are not full employees and therefore not offered the same protections. An employer still can find herself in hot water, however, when her employees harass or discriminate against an independent contractor they work alongside. Section 1981 of the Civil Rights Act of 1866 protects minorities' rights to enter contracts and by extension binds both parties to the contract to perform their end of the bargain without discrimination or harassment.
Affirmative-action plans
Affirmative-action programs may be implemented when, for example, there's a need to eliminate a manifest imbalance in a traditionally segregated job category. Because affirmative-action and diversity programs carry a significant risk of reverse discrimination challenges, you should exercise caution and consider consulting legal counsel before implementing such a program.
Related articles on Race Discrimination from the State Employment Law Letters designates additional valuable resources available exclusively to Employment Law Letter subscribers
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