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Color Codes

James, a light-complexioned African-American, works as a waiter. His manager, a brown-complexioned African-American, frequently makes offensive comments and jokes about James' skin color. As a result, James can't sleep and dreads going to work. He asks the supervisor to stop, but the abuse only intensifies.

This hypothetical story of color-on-color harassment is one of more than two-dozen scenarios described in the EEOC's recently released "Compliance Manual Section on Race and Color Discrimination." Although the guidelines break no new legal ground, they highlight contemporary examples of discrimination that may escape the notice of even a vigilant employer. They also provide clues to EEOC priorities and best-practices.

"The new guidelines focus employers on issues where the EEOC is prepared to step in," says Dominic Messiha, shareholder in Littler Mendelson.

They also serve as a reminder that 42 years after Congress passed the Civil Rights Act, Title VII violations still constitute the most frequent type of workplace discrimination complaint. Of the approximately 75,000 charges filed with the EEOC in fiscal 2005, more than 35 percent alleged race-based discrimination.

"I read this as the EEOC being shocked at the number of race and color complaints and feeling the need to provide guidance on why this needs to stop," says Richard Greenburg, partner in Jackson Lewis.

Color On Color

Among the topics the guidelines address, color-on-color discrimination, while still rare, is one that is of growing importance in the workplace, according to Messiha.

"Employers may not have given enough attention to discrimination by a supervisor of the same ethnic group or race," he says. It is likely to become more common as more people of color supervise others.

For example, James would have a claim of racial harassment, according to the EEOC, even though he and his supervisor are of the same race. The anecdote is reminiscent of a 2003 consent decree in Atlanta where the EEOC won a $40,000 settlement from Applebee's Neighborhood Bar & Grill. The case involved allegations by a dark-skinned African-American that his lighter-skinned African-American manager had made derogatory remarks about his skin color, and terminated him when he threatened to report the manager.

Skin tone also can be a source of discrimination between immigrants from the same country, who bring with them cultural biases from their homeland. In India, Pakistan and Latin America, people with light skin traditionally have been favored. But in the U.S., if a light skinned Indian supervisor discriminates against dark skinned Indians in his workgroup, a Title VII complaint may ensue.

"Cultural ideas about different gradations of skin tone play out in the U.S. workplace to everyone's bewilderment, unless they are familiar with what's going on in India," says Margaret Hart Edwards, a shareholder in Littler Mendelson's San Francisco office.

The guidelines also point out intersectional discrimination, based on a convergence of two protected classes. For example, an employer might discriminate against Asian-American women, even if there is no evidence of discrimination against Asian-American males or white women.

Disparate Impact

While intentional discrimination is still present in some workplaces, many of the EEOC guidelines illustrate situations where a seemingly legitimate policy violates the law because of its disparate impact on a protected group, or where subconscious judgments result in discriminatory decisions.

"Discrimination in general is less in your face than it was 40, 30 or even 20 years ago," says Corbett Anderson, an EEOC staff attorney. "In updating the manual, we tried to provide examples of where it involves subjective judgments, which is where bias can play out in a service-based economy."

Such subjective characteristics as personality fit and creativity, which are not measurable, are often important in hiring and promotion, he says, and can lead to biased decisions.

Likewise, recruitment centered on referrals from existing employees is suspect if all the current employees are white. "While it is not illegal per se, if it works to exclude certain groups, it needs to be examined," Anderson says.

The EEOC also advises recruiting employees from racially diverse sources, rather than from homogeneous sources, such as colleges with predominately white student bodies.

Even neutral employment policies, such as a rule prohibiting beards, can be discriminatory. The EEOC points out that a no-beard rule disproportionately excludes African-American men, because they have a high incidence of pseudofolliculitis barbae, an inflammatory skin condition caused by shaving.

Another example of a policy that may create a disparate impact, Greenburg notes, is requiring applicants for a certain job to have a high school diploma in the absence of proof that it's a business necessity. "Because of low graduation rates in some communities, that requirement could have an unconscious discriminatory effect," he adds.

Proactive Prevention

The most useful tool for employers in the new guidelines is the "Proactive Prevention" section that concludes the 51-page document.

"The agency included an employer best-practices section--the first time best practices have turned up in agency legal guidance," says Ann Elizabeth Reisman, general counsel of the Equal Employment Advisory Council, a non-profit association of employers. "It's a nice list that companies can use not only to proactively root out discrimination, but also to illustrate to the EEOC that there are good things they are doing."

She explained that having an EEOC training program for all supervisors, for example, can be used as a defense if a supervisor is charged with harassment.

Reisman is also pleased that the EEOC endorsed ADR as a best practice. She said the council has long urged the EEOC to give ADR programs a chance, and pilot programs had been underway. But this is the first time the agency has formally encouraged ADR.

"Many employers have internal programs designed to give employees a way internally to have their complaints resolved fairly and without fear of retaliation," she says. "This endorsement by the EEOC is very useful."

Other best practices include recommendations on training, objective qualification standards, harassment policies and protection from retaliation.

One best practice not mentioned in the guidelines is to keep abreast of EEOC settlements, says Gerald Pauling, a partner in Seyfarth Shaw.

"It's a best practice to know where particular practices fall on the EEOC's radar screen," he says. "If you go through the race and color guidelines, you will see hypotheticals of things you may not look at as discriminatory. But if they think it amounts to race discrimination, you need to manage to that."

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Mary Swanton

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