Discrimination on the Basis of Race 23

Discrimination on the Basis of Race 23

As discussed in Chapter 22, Title VII of the 1964 Civil Rights Act set out sweeping legislation outlawing discrimination in the United States. It was enacted in part to remedy the segrega-tion and underrepresentation of minorities that discrimination had caused in the nation’s workforce. This chapter will provide an overview of one type of prohibited discrimination: that based on race, as it pertains to terms and conditions of employment.

23.1 Title VII and Racial Discrimination

Keep in mind that race discrimination is prohibited by federal law and prohibited as well by each state’s own, unique discrimination laws. In addition, workplace handbooks set forth company policies regarding discrimination. All these provisions must be viewed together, not in isolation. Therefore, you may want to think of the federal law as broad provisions on gover- nance, whereas state and local laws (as well as handbooks) might give more inclusive directives on many other topics, such as sexual orientation. In addition, state laws have different procedures for bringing a discrimination claim that must be taken into consideration when contemplating litigation.

Title VII did not contain a definition of race. However, in applying the law, the Equal Employment Opportunity Commission (EEOC) collects data on race in the United States and on its forms using the following categories: Native Hawaiian or other Pacific Islander (NHOPI), American Indian or Alaskan Native, Asian, White, and Black or African-American. Hispanic or Latino is considered an ethnic rather than a racial category. Color, as opposed to race, refers to skin pigmentation such as light or dark skin. Discrimination on the basis of skin color is the refusal to hire someone because of his or her skin color, such as the refusal to hire “light-skinned blacks.”

Key Title VII Court Decisions

One of the first cases to interpret Title VII on the basis of race discrimination was Griggs v. Duke Power Company, 401 U.S. 424 (1971). In this case, Duke Power Company instituted a general intel- ligence test as a condition to receive a promotion within the company from one division to another. Let’s take a closer look at this case to see how the test was in fact related to racial discrimination.

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Cases to Consider: Griggs v. Duke Power Company

Griggs v. Duke Power Company, 401 U.S. 424 (1971)

The following are excerpts from the U.S. Supreme Court case:

In September 1965 the Company began to permit incumbent employees who lacked a high school education to qualify for transfer from Labor or Coal Handling to an “inside” job by passing two tests— the Wonderlic Personnel Test, which purports to measure general intelligence, and the Bennett Mechanical Comprehension Test. Neither was directed or intended to measure the ability to learn to perform a particular job or category of jobs. . . .

On the record before us, neither the high school completion requirement nor the general intelli- gence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability. Rather, a vice president of the Company testified, the requirements were instituted on the Company’s judgment that they generally would improve the overall quality of the workforce. . . .

In 1955 the Company instituted a policy of requiring a high school education for initial assignment to any department except Labor, and for transfer from the Coal Handling to any “inside” department (Operations, Maintenance, or Laboratory). When the Company abandoned its policy of restricting Negroes to the Labor Department in 1965, completion of high school also was made a prerequisite to transfer from Labor to any other department. From the time the high school requirement was instituted to the time of trial, however, white employees hired before the time of the high school education requirement continued to perform satisfactorily and achieve promotions in the “operat- ing” departments. Findings on this score are not challenged.

The Company added a further requirement for new employees on July 2, 1965, the date on which Title VII became effective. To qualify for placement in any but the Labor Department[,] it became necessary to register satisfactory scores on two professionally prepared aptitude tests, as well as to have a high school education. Completion of high school alone continued to render employees eligible for transfer to the four desirable departments from which Negroes had been excluded if the incumbent had been employed prior to the time of the new requirement. . . .

The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, prac- tices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be main- tained if they operate to “freeze” the status quo of prior discriminatory employment practices. . . .

. . . Because they are Negroes, petitioners have long received inferior education in segregated schools and this Court expressly recognized these differences. There, because of the inferior edu- cation received by Negroes in North Carolina, this Court barred the institution of a literacy test for voter registration on the ground that the test would abridge the right to vote indirectly on account of race. Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discrimi- natory preference for any group, minority or majority, is precisely and only what Congress has pro- scribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. . . . (continued)

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Cases to Consider: Griggs v. Duke Power Company (continued) The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria are now used. The promotion record of present employees who would not be able to meet the new criteria thus suggests the possibility that the requirements may not be needed even for the limited purpose of preserving the avowed policy of advancement within the Company. In the context of this case, it is unnecessary to reach the question whether testing requirements that take into account capability for the next succeeding position or related future promotion might be utilized upon a showing that such long-range requirements fulfill a genuine business need. In the present case the Company has made no such showing. . . .

[The Court of Appeals majority, in finding no requirement in Title VII that employment tests be job- related, quoted from an earlier interpretative memorandum on the question of the constitutionality of Title VII:]

There is no requirement in Title VII that employers abandon bona fide qualification tests where, because of differences in background and education, members of some groups are able to perform better on these tests than members of other groups. An employer may set his qualifications as high as he likes, he may test to determine which applicants have these qualifications, and he may hire, assign, and promote on the basis of test performance.

Read the full text of the case here: http://www.law.cornell.edu/supct/html/historics/USSC_CR_ 0401_0424_ZO.html.

Questions to Consider

1. After Griggs, may an employer administer tests for its employees? Under what circumstances are tests allowed? What would the employer have to show for the test to be nondiscriminatory?

2. What did you learn from this case about giving your employees a test at work prior to promotion?

There are many important facets to point out from this case. First, note what the Court said about Title VII’s purpose: The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportu- nities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. When you read the language from the decision, it should be obvious that the test implemented by the employer was used in order to keep African-Americans from infiltrating parts of the plant that they had been excluded from; in other words, the test was being used to keep blacks and whites physically separated, or segregated.

The significance of the Griggs case is that intent was unimportant in proving discrimina- tion. Instead, the effect of the policy was to further discrimination. One could conclude that the language of the Griggs decision woke up America to the fact that even uninten- tional discrimination is unlawful. This is important, because most employers are aware of the laws prohibiting discrimination and therefore do not implement programs in their companies that are intentionally discriminatory. They may believe that as long as their discrimination is unintentional, they are not subject to liability. Nevertheless, through

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both the Civil Rights Act and the Supreme Court’s interpretations, as in Griggs, the courts and Congress have clearly enunciated that a particular program that results in discrimina- tion is also a violation. This is called disparate impact discrimination because the impact of the policy results in discrimination. Disparate impact is most often proven through the use of statistical evidence.

Note the language that the court used in calling the tests “neutral on their face” and even neutral in terms of intent. What does this mean? A test is neutral on its face if it does not appear to be discriminatory; it is only when the test is actually implemented that it becomes discriminatory. This, too, has disparate impact. In Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), disparate impact was summarized as “Fair in form but dis- criminatory in practice.”

One important concept that you should take away from this discussion is that, as a man- ager, you need to evaluate policies implemented by your company to determine whether they have either a discriminatory intent or an adverse effect on employees. If your com- pany uses tests to decide readiness for promotion, the Griggs case tells us that the test must have a relationship to an employee’s ability to perform his or her job and not select candidates based on irrelevant criteria.

The EEOC’s Role

As discussed in Chapter 21, the Equal Employment Opportunity Commission (EEOC) finds that an adverse impact occurs if members of a protected class are selected for a job or promotion at a rate less than 4/5 (80%) of that of another group. According to the EEOC, these groups are protected from employment discrimination by law. They include men and women on the basis of sex; any group that shares a common race, religion, color, or national origin; people over 40; and people with physical or mental handicaps. The EEOC website (www.eeoc.gov) sets out examples of other potentially unlawful practices, such as:

1. Soliciting applications only from sources in which all or most potential workers are of the same race or color;

2. Requiring applicants to have a certain educational background that is not impor- tant for job performance or business needs; and

3. Testing applicants for knowledge, skills, or abilities that are not important for job performance or business needs.

The EEOC also suggests that any record keeping about protected classes be kept sepa- rately from the application process.

According to the agency, not only should employers be aware of the potential for racial dis- crimination, but there is an added component called racial harassment for which employ- ers are also liable. This type of offense includes a workplace in which other employees engage in ethnic slurs or racial jokes.

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Section 23.2 How a Race Discrimination Lawsuit Begins CHAPTER 23

23.2 How a Race Discrimination Lawsuit Begins

As previously noted, there are both federal and state discrimination statutes; like-wise, there is a federal discrimination agency (the EEOC) and state agencies. The first decision that an aggrieved person must make is where to begin the claim. The best place, of course, is usually with the person who allegedly discriminated. Trying to remedy the situation with a supervisor or coworker who discriminated is a private, free, quick, and confidential process. Recall the other ways to resolve disputes from Chapter 3, which included alternative dispute resolution. Discrimination claims might be a good place to bring in a trusted advisor or trained mediator. Although there are no reported statistics for how often these remedies actually work, it cannot hurt to try these methods. An admin- istrative agency will likely take months or years to resolve the dispute, in which case it might be easier to get another job.

Determining Jurisdiction

Before an aggrieved person can file a lawsuit in court alleging racial discrimination, he or she must first decide whether the claim will be under state or federal discrimination laws. State discrimination laws are much more narrow and protective than federal laws. An example of one part of New York State’s antidiscrimination law is as follows:

New York State Human Rights Law, Section 296. Unlawful discriminatory practices.

1. It shall be an unlawful discriminatory practice:

(a) For an employer or licensing agency, because of an individual’s age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence vic- tim status, to refuse to hire or employ or to bar or to discharge from employ- ment such individual or to discriminate against such individual in compensa- tion or in terms, conditions or privileges of employment.

Notice that the New York statute protects classifications such as sexual orientation and “domestic violence victim status,” neither of which is covered by Title VII.

If the complainant pursues a state claim, the first step would be to file with the respec- tive agency and follow the procedures set out, which are usually quite detailed and vary from state to state. The agency will make a finding of whether or not there is probable cause to proceed with an investigation. If there is, a site visit may be made to the place of employment, where meetings with personnel take place and documents are procured. If the agency concludes that discrimination in fact occurred, the agency may be empowered to levy fines or issue mandates to correct the employer’s behavior.

If the employee takes a “federal route” through the EEOC, then there is a different detailed process that leads to an investigation and a hearing. The EEOC mandates that before a complainant can sue his or her employer for discrimination, the complainant must first “exhaust all administrative remedies.” This means that the employee must go through all of the EEOC’s proceedings, and only when they are completed does suing in court become

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an option. At both the state and federal levels, the majority of cases never proceed very far because the agencies usually find there is no “cause” or finding of discrimination. For the few cases that do proceed to a hearing, many result in negotiations and settlements. Very few ever proceed to court. In the event that litigation does take place, the plaintiff has the burden of proving the discrimination, as illustrated in the next section.

Burden of Proof

If a discrimination case ends up in court, there is a three-step process pertaining to the burdens of proof that occur. See Figure 23.1 for an illustration.

Figure 23.1: Steps in a race discrimination lawsuit

The Plaintiff The plaintiff has the initial burden of proving the discrimination. The plaintiff must dem- onstrate by a preponderance of evidence that he or she was discriminated against because of his or her race. The plaintiff can sustain the burden of proof by showing that:

1. He or she is a member of a protected class; 2. He or she was meeting the employer’s legitimate job expectations; 3. He or she suffered an adverse employment action; and 4. Similarly situated employees outside the protected class were treated differently.

If the plaintiff is able to prove the above “list” by a preponderance of the evidence, the burden then shifts to the defendant to show a reason for the discrimination.

The Employer The employer now has the burden of proving to the court by a preponderance of the evidence that the employer had a legitimate, nondiscriminatory reason for rejecting the employee. For example, consider the case Twymon v. Wells Fargo & Company, 462 F.3d 925 (2006). In this case, Wells Fargo recruited and hired Twymon, an African-American,

DEFENDANT (Employer)

PLAINTIFF (Employee)

Alleges he or she is a member of a protected class and that discrimination occurred.

Rebuts that the defendant’s stated reason was a pretext for the discrimination, not a true reason

Explains the nondiscriminatory reasons for plaintiff’s termination

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in July 2000 as the Director of Organizational Performance Reporting & Measurement in West Des Moines, Iowa. Twymon’s duties at Wells Fargo included responsibility for the performance management system, employee development consulting, statistical measures, and all activities related to organizational performance and organizational change. On November 30, 2001, Wells Fargo fired Twymon, citing violation of Wells Fargo’s Electronic Communication Use System Policy (computer policy) as the reason for termination. Twymon alleged that racial animus and retaliation were the real reasons for her termination. An audit of Twymon’s work computer revealed that she had visited hundreds of non–work-related Internet sites. Sometime later (the record is unclear as to when), Twymon’s computer hard drive was found to contain images of nude and partially nude males, as well as close-up views of male genitalia. In addition, Twymon was found to have received an inappropriate image via her work e-mail and to have forwarded the e-mail to her personal e-mail account. Wells Fargo deemed Twymon’s alleged actions to be in gross violation of the computer policy and terminated Twymon’s employment on November 30, 2001.

While Twymon sustained the initial burden of showing she was fired for a discriminatory reason, the business was able to show a valid “reason” for the firing that was unrelated to race. The court stated as follows:

We assume, without deciding, that Twymon established a prima facie case of discrimination. However, we agree with the district court that Wells Fargo articulated a legitimate, non-discriminatory rationale for Twymon’s termina- tion: gross violation of the company’s computer policy. We have consistently held that violating a company policy is a legitimate, non-discriminatory rationale for terminating an employee.

Twymon v. Wells Fargo seems to be typical. In the vast majority of cases, the plaintiff cannot prove that the defendant’s actions were pretextual. Instead, when the employer gets to court, the employer often shows perfectly plausible reasons for discharge of the employee. These may involve poor work performance (Garcia v. Bristol-Myers Squibb, 535 F.3d 23), truancy, tardiness, sleeping at work (Smith v. New Venture Gear, Inc., 319 Fed. Appx. 52 [2d Cir. 2009]), inappropriate remarks to coworkers, violent behavior in the workplace, use of drugs and alcohol at work, or refusal to follow reasonable company policy.

The Plaintiff Shows That Defendant’s Reasoning Is Pretextual Suppose the plaintiff has proven the initial steps of the discrimination, and the employer has responded with the reasons the plaintiff was fired. In step three, the plaintiff has the burden of proving that the employer’s reasons are pretextual, untrue, or at least not suffi- cient to warrant the action taken against the employee. This simply means that the reasons proffered by the employer are a cover-up for the racially motivated decision, or a sham. In one court’s words (Johnson v. AT & T Corp., 422 F.3d 756, 763 [8th Cir. 2005]), “To prove pretext, a plaintiff must both discredit an employer’s asserted reason for termination and show that the circumstances permit drawing the reasonable inference that the real reason for terminating the plaintiff was her race.”

A common way of proving pretext is to show that similarly situated employees were more favorably treated or, stated another way, if all whites in the same position were given a bonus and the only African-American was not, it appears that the reason was based on race.

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In Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S.Ct. 1195 (2006) (http://www.relaciones laborales.org/publicaciones/material_educativo_seminarios/ANTHONY_ASH_vs_ TYSON_FOODS_INC.pdf), the two plaintiffs, both African-American, were superinten- dents at Tyson Foods’ poultry plant. They both sought a promotion to “open shift man- ager” positions, but two white males were selected instead, and they then sued for racial discrimination. The appeals court hearing the case stated that their standard for determin- ing whether or not the employer’s actions were pretextual were as follows: “Pretext can be established through comparing qualifications only when ‘the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.’” The Supreme Court sent the case back down, as it found the “slap you in the face” standard erroneous, stating that “evidence of qualifications may suffice, at least in some circumstances, to show pretext.” In addition, the Court stated:

(“The fact that a court may think that the employer misjudged the qualifi- cations of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer’s reasons are pretexts for discrimination”); cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (“[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated”).

23.3 Role of the Manager in Preventing Race Discrimination Lawsuits

While it is true that the law on discrimination is complex, managers nevertheless can do a great deal to prevent these lawsuits from ever occurring. From the start, establishing a company policy that forbids discrimination and enforcing that policy will go a long way in setting the tone in the organization that such behavior will not be tolerated. Managers who set a good example (including by refusing to participate in jokes that demean employees or perpetuate stereotypes) give employees a strong message about the seriousness with which the company takes such matters.

Establishing Clear Policies

All the cases presented thus far represent the failure of employers to put programs into place that would either have prevented discrimination, or, if that was not possible, dealt with the discrimination once it occurred. As a business manager, properly reacting to a charge of discrimination is just as important as having a policy in place to prevent it; so is thorough and extensive training of employees. The following is a list of suggested compo- nents to include in an appropriate plan:

1. Develop detailed and thorough policies regarding discrimination; 2. Communicate and train workers in the policies; 3. Set up a reporting system; 4. Act quickly and decisively upon reports;

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5. Conduct fair but detailed investigations; and 6. Educate your employees about the ramifications of violations.

Vetting New Hires

One of the places in which the employer is most vulnerable to lawsuits is in the hiring phase, also known as the preemployment process. Here, it is essential that employees in the Human Resources (HR) department or others involved with interviewing and hiring pro- spective employees be aware of the many potential pitfalls that even casual remarks may generate. In no way should the hiring process include any questions that regard race, sex, national origin, or other classifications under Title VII (or local and state law) (see Chap- ters 24 and 26 for an in-depth discussion).

Many questions are illegal to ask an interview candidate, under both Title VII and state law. There are many subject areas in which even innocently posed questions may have ramifications. For example, the application form should not refer to the race of the appli- cant. If the employer seeks to keep statistics, the EEOC suggests the use of tear-off sheets for identifying an applicant’s race. After the applicant completes the application and the tear-off portion, the employer separates the tear-off sheet from the application and does not use it in the selection process. For a list of forbidden lines of inquiry, see the HR World website article, “30 Interview Questions You Can’t Ask and 30 Sneaky, Legal Alternatives to Get the Same Info,” which can be found at http://www.hrworld.com/ features/30-interview-questions-111507/.

Key Terms

color Skin pigmentation, such as light or dark skin.

disparate impact discrimination Policies that are neutral on their face but in practice have a discriminatory effect.

neutral on its face A test that does not appear to be discriminatory at first; it is only when the test is actually implemented that it becomes discriminatory.

pretextual An employer’s reason for dis- crimination that is not true or is an invalid reason for the action taken.

prima facie case The plaintiff has met the burden of proof initially, and the defen- dant may now rebut that finding.

race Ancestry or physical or cultural char- acteristics associated with a certain group of people, such as skin color, hair texture or styles, or certain facial features.

racial harassment An atmosphere in the workplace in which employees engage in ethnic or racial slurs.

segregation A system of laws or social policies that keep blacks and whites (or other groups) separated.

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Critical Thinking and Discussion Questions

1. What are the three steps pertaining to burdens of proof in a race discrimination lawsuit?

2. List three things a manager can do to help prevent discrimination in the workplace.

3. What is race? How is race defined in Title VII? By the EEOC? 4. What is a test that is “neutral on its face”? What is the legal significance of such a

test in terms of race discrimination? 5. What is a protected class? Who determines what classes are protected? Why are

some classes protected? 6. Ace Manufacturing Company is located in 35 states throughout the United States

and makes metal coil springs used in automobile chassis. Ace is currently hir- ing workers for its plant in Arizona and puts an advertisement on the Internet that says, among other things, “All workers must have three years of previous experience as a metal coil spring operator.” A group of workers rejected for the job bring a lawsuit under Title VII alleging that they were discriminated against because they did not have any previous experience and therefore were rejected for employment.

Discuss in detail the likelihood of the group prevailing. You can assume that the workers are members of a protected class, such as African-Americans. Outline, using arrows, the respective burdens of proof and what each of the parties must prove in order to prevail in the lawsuit.

7. Your company’s employee handbook is in need of an update. Draft a comprehen- sive hearing procedure for your company to use when an employee believes that he or she has been discriminated against on the basis of race. Your procedures should include, at a minimum:

a. How a hearing board would be constituted and by whom; b. How such a complaint would be investigated and by whom; c. To whom the results of the investigation would be made public; d. What powers the hearing board has in terms of sanctions; e. What sanctions are available; and f. What the appeals process would be. 8. Suppose that you are an employee at a large corporation and think that your

employer is discriminating against you on the basis of race. As a result, you wish to begin a racial discrimination lawsuit against this employer. Go online and find your state’s human rights agency that is equivalent to the EEOC. Then discuss the first steps you would take to file such a complaint. Draw up the initial correspon- dence with the agency as well as the initial information you would supply the agency about the alleged incident. Use your imagination to draft an incident that occurred at your fictional company.

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