Reprinted from the May 21, 2007 issue of PERSONNEL LEGAL ALERT , a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

EEOC Works To "E-RACE" Discrimination

Last year, the EEOC issued guidance on how Title VII prohibits discrimina-
tion in employment on the bases of race and color. Earlier this year, the agency went one step further and adopted the Eradicating Racism and Colorism from Employment (E-RACE) initiative. Unlike guidelines that simply put forth the EEOC's position, E-RACE gives the agency increased power to police hiring and promotion decisions, as well as provide education and outreach assistance in ridding racism from today's workplaces, explained Lynn D. Lieber, Esq., founder and CEO of San Francisco-based Workplace Answers, Inc.

THE NEED

In light of Don Imus's remarks regarding the Rutgers University women's basketball team, Naomi Earp, Chair of the EEOC, wrote an open letter stating, "Names, especially racist and sexist slurs, can and do hurt! It is one of the reasons that the EEOC recently launched E-RACE…a national campaign designed to hold businesses accountable for the discriminatory conduct of their officials, managers, and employees."

According to Lieber, E-RACE is needed "because race gets looked at differently than other protected characteristics, and lags behind advances made in sex and disability discrimination." Race-based claims continue to be the most frequently filed claims with the agency. In FY 2006, 27,238 race-based charges were filed, accounting for 36% of all charges filed with the EEOC that year.

Color discrimination is also on the rise. In FY 1992, the EEOC fielded 374 such claims. By FY 2006, that number increased to 1,241. Color discrimination is based on the lightness, darkness, or other color characteristic of pigmentation, complexion, or skin tone, and can occur among persons of the same race.

Take note, warned Lieber, because more race discrimination claims are being certified as class actions. "It’s easier and less intimidating for employees to opt into a class action than to file their own case," she pointed out. The potential payout in a class action is much greater than in individual lawsuits.

THE TARGETS

E-RACE will specifically target facially neutral hiring criteria that are significantly disadvantaging to individuals based on race and color. Among those criteria:

1. Names. Whether consciously or not, some hiring managers dismiss job applicants because their names are too ethnic sounding.

Avoid this by: taking personally identifying information off of applications/résumés before passing them on to the hiring manager.

2. Arrest and conviction records. Automatically disqualifying from consideration applicants with a criminal record could eliminate a disproportionate number of minorities.

Avoid this by: conducting criminal background checks only if necessary for the job; ignoring arrests; and ignoring crimes that are not related to the job.

3. Employment and personality tests. Many of these tests are created with an inherent bias against minorities.

Avoid this by: using pre-employment tests that are directly tied to job duties. Last month, FedEx settled a race discrimination class action lawsuit to the tune of almost $55 million. As part of the settlement, the company agreed to stop using its "Basic Skills Test" as a prerequisite for promotions. An expert determined that the test was not a valid measure of job success. (Satchell v. FedEx Express, N.D.CA, No. 03-2659, 2007)

4. Credit scores. On average, minorities have lower credit scores than whites.

Avoid this by: verifying that the credit check is absolutely tied to job responsibilities, and checking it for each and every person applying for the position, said Lieber.

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