*The U.S. Equal Employment Opportunity Commission*

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# Questions and Answers About            Race and Color Discrimination in Employment

## INTRODUCTION

Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees fromdiscriminating in employment based on race, color, religion, sex, and national origin.  It  alsoprohibits retaliation against persons who complain of discrimination or participate in an EEOC investigation.  Everyone is protected from race and color discrimination   Whites, Blacks, Asians,Latinos, Arabs, American Indians, Alaska Natives, Native Hawaiians, Pacific Islanders, persons ofmore than one race, and all other persons, whatever their race, color, or ethnicity.

These questions and answers are adapted from the EEOC's Compliance Manual Section on Race andColor Discrimination.  For more detailed information about race and color discrimination, you mayreview the Race and Color Section on the EEOC's website or  call1-800-669-3362 to request a free copy of the Race and Color Section of the web site.

What is "Race"?

Title VII does not contain a definition of "race."  Race discrimination includes discrimination on thebasis of ancestry or physical or cultural characteristics associated with a certain race, such as skincolor, hair texture or styles, or certain facial features.  

- Note that forms used for collecting federal data on race and ethnicity in the workforce use     five racial categories:   American Indian or Alaska Native; Asian; Black or African American;     Native Hawaiian or Other Pacific Islander; and White; and one ethnicity category, Hispanic     or Latino. 

What is "Color"?

## EMPLOYMENT DECISIONS

What employment actions are prohibited by Title VII?

Title VII prohibits race and color discrimination in every  aspect  of employment, includingrecruitment, hiring, promotion, wages, benefits, work assignments, performance evaluations,training,  transfer, leave, discipline, layoffs, discharge, and any other term, condition, or privilege ofemployment.  Title VII  prohibits not only intentional discrimination, but also practices that appearto be neutral, but that limit employment opportunities for some racial groups and are not based onbusiness need. 

What is intentional discrimination?  

Intentional discrimination occurs when an employment decision is affected by the person's race.  It includes not only racial animosity, but also conscious or unconscious stereotypes about theabilities, traits, or performance of individuals of certain racial groups.

**Example**: An upscale retail establishment with a 	 sophisticated clientele rejects an African American male applicant.  The hiring 	 manager stereotypically believes that African American males do not convey a 	 clean-cut image and that they lack the soft skills needed to service customers 	 well. A finding of discrimination would be warranted.

What if clients, customers, or employees prefer working with people of theirown race? 

Basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination. Employment decisions that are based on thediscriminatory preferences of customers or coworkers are just as unlawful as decisions based on anemployer's own discriminatory preferences.

Can neutral policies be discriminatory?

Yes, in some instances.  Some neutral employment policies or practices may exclude certain racialgroups in significantly greater percentages than other racial groups.  If there is a business necessityfor the practice and there is no equally effective alternative, the practice will be lawful despite itsimpact. 

However, if there is not a business necessity for the practice or the business need could readily bemet in a way that has less impact, the practice will be unlawful.

**Example**: An employer has a "no-beard" rule, 	 which disproportionately excludes African American men because they have a higher 	 incidence of pseudofolliculitis barbae, an inflammatory skin condition caused by 	 shaving.  The employer must be able to demonstrate that beards affect job 	 performance or safety.  Also, there must be no alternatives to a strict "no-beard" 	 rule that would meet the employer's business or safety needs.

Additional examples of neutral employment policies that may be discriminatory are included in thefollowing sections.

##  RECRUITMENT AND HIRING PRACTICES

Can an employer ask about an applicant's race on an application form?

Employers may legitimately need information about their employees or applicants race for affirmative action purposes and/or to track applicant flow.  One way to obtain racial information and simultaneously guard against discriminatory selection is for employers to use separate forms or otherwise keep the information about an applicant's race separate from the application.  In that way, the employer can capture the information it needs but ensure that it is not used in the selection decision.

Unless the information is for such a legitimate purpose, pre-employment questions about race can suggest that race will be used as a basis for making selection decisions.  If the information is used in the selection decision and members of particular racial groups are excluded from employment, the inquiries can constitute evidence of discrimination.

How can employers avoid racial discrimination when recruiting? 

- Job advertisements  -  Generally, employers should not express a racial 	 preference in job advertisements.  Employers can indicate that they are "equal 	 opportunity employers."
- Employment Agencies  -  Employment agencies may not honor employer 	 requests to avoid referring applicants of a particular race.  If they do so, both the 	 employer and the employment agency that honored the request will be liable for discrimination.
- Word-of-mouth employee referrals - Word-of-mouth recruitment is the 	 practice of using current employees to spread information concerning job vacancies to 	 their family, friends, and acquaintances.  Unless the workforce is racially and 	 ethnically diverse, exclusive reliance on word-of-mouth should be avoided because it 	 is likely to create a barrier to equal employment opportunity for racial or ethnic 	 groups that are not already represented in the employer's workforce.
- Homogeneous recruitment sources  -  Employers should attempt to recruit 	 from racially diverse sources in order to obtain a racially diverse applicant pool.  For 	 example, if the employer's primary recruitment source is a college that has few African 	 American students, the employer should adopt other recruitment strategies, such as also recruiting at     predominantly African American colleges, to ensure that its applicant pool reflects the     diversity of the qualified labor force. 

How can employers avoid racial discrimination in hiring and promotions?

Race or color should not be a factor or consideration in making employment decisions except inappropriate circumstances as set forth at Section 15-VI-C of the Compliance Manual section on Raceand Color Discrimination.   Reasons for selection decisions should be well supported and based ona person's qualifications for the position.

Also, an employer should not use selection criteria that disproportionately exclude certain racialgroups unless the criteria are valid predictors of successful job performance and meet the employer'sbusiness needs.

- Educational Requirements  -  Certain educational requirements are 	 obviously necessary for some jobs.    However, if the educational requirement exceeds 	 what is needed to successfully perform the job and if it disproportionately excludes 	 certain racial groups, it may violate Title VII.
- Arrest & Conviction Records  -  Using arrest or conviction 	 records as an absolute bar to employment disproportionately excludes certain 	 racial groups.  Therefore, such records should not be used in this manner unless there 	 is a business need for their use.        Whether there is a business need to exclude persons with conviction records from particular     jobs depends on the nature of the job, the nature and seriousness of the offense, and the     length of time since the conviction and/or incarceration.    Unlike a conviction, an arrest is not reliable evidence that an applicant has committed a     crime.  Thus, an exclusion based on an arrest record is only justified if it appears not only      that the conduct is job-related and relatively recent but also that the applicant or employee     actually engaged in the conduct for which (s)he was arrested.

Can employers base hiring or promotion decisions on employment tests?

Yes, professionally developed tests may be used to make employment decisions if they do notdiscriminate on the basis of race.  Employment tests that disproportionately excludeapplicants/employees of a certain race  must be validated.  For example, if an employer uses apersonality test to assess which employees are "management material" and the test disproportionatelyexcludes people of a certain race, the employer must have the test professionally validated to ensurethat the test accurately predicts or correlates with successful job performance.  Employers should alsoconsider whether there is an alternative to the test that serves the employers' needs with lessdiscriminatory impact.

How can employers avoid racial discrimination on the job?

Employers should not only strive to recruit and hire in a way that provides equal opportunity forworkers of all backgrounds to obtain jobs, but should also ensure that race and color discriminationare not barriers to employees' success once they are in the job.  Race or color should not affect workassignments, performance evaluations, training opportunities, discipline, or any other term orcondition of employment, except in appropriate circumstances as set forth at Section 15-VI-C of theCompliance Manual section on Race and Color Discrimination.

**Example**: An employer terminates a new Asian 	 employee on the ground that she performs her work too slowly and makes too many mistakes.  	 The investigation reveals that although White employees who perform at a substandard level are     coached toward increasingly good performance, new employees of color get less     constructive feedback and training.  Therefore, they tend to repeat mistakes and make     new ones that could have been avoided.  A finding of discrimination would be     warranted.

## HARASSMENT

What is racial harassment?

Racial harassment is unwelcome conduct that unreasonably interferes with an individual's workperformance or creates an intimidating, hostile, or offensive work environment.  Examples ofharassing conduct include: offensive jokes, slurs, epithets or name calling, physical assaults orthreats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, andinterference with work performance.  An employer may be held liable for the harassing conduct ofsupervisors, coworkers, or non-employees (such as customers or business associates) over whom theemployer has control. 

An isolated incident would not normally create a hostile work environment, unless it is extremelyserious (e.g., a racially motivated physical assault or a credible threat of one, or use of a derogatoryterm, such as the N-word, etc.).  On the other hand, an incident of harassment that is not severestanding alone may create a hostile environment when frequently repeated.

**Example**: A day after a racially charged dispute 	 with a White coworker, an African American employee finds a hangman's noose hanging 	 above his locker, reminiscent of those historically used for racially motivated lynchings.  	 Given the violently threatening racial nature of this symbol and the context, this 	 incident would be severe enough to constitute harassment.

**Example**: An African American librarian presents an idea to his 	 supervisor  to create a section devoted to African American authors and history, 	 similar to those in major bookstore chains.  The supervisor rejects the idea, stating 	 that he does not want to create a "ghetto corner" in the library.  This statement alone, 	 while racially offensive, does not constitute severe or pervasive racial harassment in 	 the absence of additional incidents. 

How can employers prevent racial harassment?

The most important step for an employer in preventing harassment is clearly communicating toemployees that harassment based on race will not be tolerated and that employees who violate theprohibition against harassment will be disciplined.  Other important steps include adopting effectiveand clearly communicated policies and procedures for addressing complaints of racial harassment,and training managers on how to identify and respond effectively to harassment.  By encouragingemployees and managers to report harassing conduct at an early stage, employers generally will beable to prevent the conduct from escalating to the point that it violates Title VII.

An employer is liable for harassment by a supervisor if the employer failed to take reasonable careto prevent and promptly correct the harassment or if the harassment resulted in a tangible job action(termination, demotion, less pay, etc.).  For more information, see EEOC's Questions & Answersfor Small Employers on Employer Liability for Harassment by Supervisors.   An employer isliable for harassment by co-workers or non-employees if it knew or should have known of theharassment and failed to take prompt corrective action.

## COMPLAINTS OF DISCRIMINATION

What should an employer do when someone has complained aboutrace/color discrimination?

Employers should investigate and seek to resolve any complaint of discrimination by an applicantor employee.  Employers should remember that, in all cases, it is unlawful to retaliate against aworker who complains of discrimination or participates in an investigation of discrimination.

**Example**:  In the months following a charge of 	 discrimination, a Native American employee begins receiving less and less overtime work.  	 He files another charge alleging that the denial of overtime is retaliatory.  The 	 employer states that the employee was not assigned overtime because there is less work.  	 However, the investigation reveals no significant change in the amount of overtime available before     and after the employee's original charge.  Other employees with similar qualifications     have continued to be assigned overtime at approximately the same rate.  These facts     establish that the employee has been retaliated against for filing a charge. 

What should an employee do if he or she experiences or witnesses race/color discrimination?

Employees or job applicants should attempt to address concerns with the offender and, if thatdoes not work,  report any unfair or harassing treatment to the company.  They should keeprecords documenting what they experienced or witnessed, as well as other witness names,telephone numbers, and addresses.  Employees may file a charge with the EEOC, and are legallyprotected from being punished or fired for reporting or opposing job discrimination or forparticipating in an EEOC investigation.  Charges against private sector and local and stategovernment employers may be filed in person, by mail, or by telephone by contacting the nearestEEOC office. If there is no EEOC office in the immediate area, call toll free 1-800-669-4000 or1-800-669-6820 (TTY) for more information. Federal sector employees and applicants shouldcontact the EEO office of the agency responsible for the alleged discrimination to initiate EEOcounseling. For more details, see How to File a Charge of Employment Discrimination.

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*this page was last modified on May 16, 2006.*

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