Anderson Law Offices

EEOC Issues New Race Discrimination Guidelines - Old Wine in a New Bottle?

04/24/06

The Commission's new compliance manual on race and color discrimination, at http://www.eeoc.gov/policy/docs/race-color.html addresses the harder to prove forms of race discrimination, such as exclusion of Blacks from promotion and networking. Although the total number of EEOC charges is down in the past few years, race is still the most common basis for filing a charge (over one-third; the fastest growing type of charge is retaliation).

The introduction to the manual puts it this way:

“Today, the national policy of nondiscrimination is firmly rooted in the law. In addition, it generally is agreed that equal opportunity has increased dramatically in America, including in employment. Blacks and other people of color now work in virtually every field, and opportunities are increasing at every level.

Yet significant work remains to be done. Charges alleging race discrimination in employment accounted for 35.5 percent of the Commission’s 2005 charge receipts, making race still the most-alleged basis of employment discrimination under federal law. In addition, several private studies conducted in the early 2000s provide telling evidence that race discrimination in employment persists. A 2003 study in Milwaukee found that Whites with a criminal record received job call-backs at a rate more than three times that of Blacks with the same criminal record, and even at a rate higher than Blacks without a criminal record. A 2003 study in California found that temporary agencies preferred White applicants three to one over African American applicants. And, a 2002 study in Boston and Chicago found that résumés of persons with names common among Whites were 50 percent more likely to generate a request for an interview than equally impressive résumés of persons with names common among Blacks.

Moreover, racial and ethnic disparities still exist in the labor market. People of color are more likely than Whites to work in lower-paying jobs and less likely to work in higher-paying jobs. Unlawful employment discrimination is one of the reasons for these disparities. Therefore, vigorous law enforcement, and proactive prevention of discrimination – i.e., enhanced outreach, education, and technical assistance to promote voluntary compliance – remain critical to ensuring that race and color play no part in employment decisions…”

But the conclusions drawn by the Commission, scores of paragraphs later, reflect nothing new. This is unfortunate because the racism that lingers in the workplace is so unconsciously expressed by some managers (albeit rarely and significantly so over the past few decades) that they don't even realize they have the impulse or the perceptions that manifest the trait.

Much of the following, excerpted from the final section of the guidelines that counsel employers about how to avoid problems, could have been written fifteen years ago:

General

Develop a strong EEO policy that is embraced by the CEO and top executives, train managers and employees on its contents, enforce it, and hold company managers accountable.
Make sure decisions are transparent (to the extent feasible) and documented. The reasons for employment decisions should be well explained to affected persons. Make sure managers maintain records for at least the statutorily-required periods.

Recruitment, Hiring, and Promotion

Recruit, hire, and promote with EEO in mind, by implementing practices designed to widen and diversify the pool of candidates considered for employment openings, including openings in upper-level management.
Monitor for EEO by conducting self-analyses to determine whether current employment practices disadvantage people of color, treat them differently, or leave uncorrected the effects of historical discrimination in the company.
Analyze the duties, functions, and competencies relevant to jobs. Then create objective, job-related qualification standards related to those duties, functions, and competencies. Make sure they are consistently applied when choosing among candidates. Identify and remove barriers to EEO – such as word-of-mouth recruiting in a workforce that does not reflect the diversity of the qualified labor market, or employment tests – if they cannot demonstrably be tied to job performance and business necessity.
Develop the potential of employees, supervisors, and executives with EEO in mind, by providing training and mentoring to give workers of all backgrounds the opportunity, skill, experience, and information necessary to perform well, and to ascend to upper-level jobs.

Make sure promotion criteria are made known, and that job openings are communicated to all eligible employees.