A Bias That's Skin Deep

Some employers have yet to learn that color discrimination is far from a black-and-white issue.

By Patrick Mirza Dec 1, 2003

HR Magazine, December 2003

Color. Although it has been prominently listed for nearly 40 years as a protected category under Title VII of the 1964 Civil Rights Act, the meaning of the word seems lost on many businesspeople. Employees, managers and some HR professionals don’t fully realize what color discrimination is—much less how to avoid committing it.

Even some diversity specialists and attorneys are confused. Several experts interviewed for this article were surprised to learn that employees can file charges based on skin color alone—and that these charges can be fundamentally different from traditional charges of race discrimination.

Despite the legal distinctions, some employers continue to treat color and race as if they are synonymous and interchangeable. Many unwittingly omit skin color from their workplace discrimination policies and fail to train employees and managers on ways to recognize and stop such discrimination.

But the longer employers remain confused about color discrimination—and allow their employees and supervisors to remain so—the more they increase their exposure to a type of litigation they will be unprepared to prevent, much less defend against in court.

It’s Not the Numbers

While color discrimination claims account for only about 3 percent of all charges filed with the Equal Employment Opportunity Commission (EEOC), the number has trended upward in the past 15 years, especially since 1994. The EEOC received 1,382 color charges in 2002, almost half of them in the Northeast.

More important, experts predict that the number of color charges will continue to rise. (See “Where Is Color Discrimination Headed?”)

Such statistics and predictions reveal only part of the story regarding color discrimination, however: The greatest risk to employers is not that they will be deluged in the far-off future with color discrimination claims; it is that they will be completely unprepared for the ones they receive today.

Shades of Gray

In general, charges of color discrimination can take three forms, all of which may be surprising for employers:

Interracial.Under Title VII, members of one racial group are barred from giving preferential treatment—based on skin color—to members of another racial group. Thus, a white manager who promotes a light-skinned Asian employee instead of a darker-skinned Asian employee could spark a color discrimination charge. The darker-skinned employee in this situation could not sue for race discrimination because both he and the promoted worker are members of the same race.

Currently, interracial color charges are more common than other forms, say experts. In the experience of S. Robert Royal, regional attorney for the Atlanta District Office of the EEOC, color charges are “almost exclusively” interracial. Most charges, he says, are filed by Hispanics, Asians or Middle Easterners.

Intraracial.Charges also can result when members of the same racial group discriminate against one another based on differences in skin color.

In a recent case involving an Atlanta Applebee’s restaurant, a dark-skinned black employee claimed that his lighter-skinned black manager made disparaging comments about his skin color and eventually fired him. Applebee’s Neighborhood Grill and Bar, which denies any wrongdoing, settled the case for $40,000, according to a statement from the EEOC. As part of the settlement, the company will modify its workplace policies to specifically prohibit color discrimination and will conduct training.

Intraracial discrimination may come as a surprise to some employers, but it does exist. Based on the color of their skin, dark-skinned blacks historically have experienced more discrimination—both from whites and members of their own race—than lighter-skinned blacks, according to the EEOC.

However, professor Trina Jones of the Duke University Law School points out that color discrimination can cut both ways. She says that some individuals “talk about being distanced by members of the African American community because of their lighter skin tone.”

Non-racial. Theoretically, color discrimination charges could even be filed by individuals who are albino or whose skin color is affected by disease or medical treatments, warns Kathryn Bissell, regional attorney for the EEOC’s New York District Office.

But Jones believes that complaints based on medical or genetic conditions “wouldn’t necessarily be supported by the legislative history because they really aren’t related to the types of discrimination that Congress was concerned about in 1964” when it passed the Civil Rights Act.

More Difficult Defenses

Color discrimination charges usually are combined with other charges, complicating an employer’s defense strategies and expenses.

Gerald Maatman, a partner in the Chicago office of the Seyfarth Shaw LLP law firm, says all of the color discrimination charges he has seen were “second charges” added to other claims. He says many Hispanics and people of Middle Eastern descent previously filed charges asserting only national origin discrimination but—since the Sept. 11 terrorist attacks—have increasingly added a second charge of color discrimination.

Bissell, who has worked in the EEOC’s New York office since 1997, says color discrimination charges often accompany race and national origin discrimination charges.

Such multiple charges increase plaintiffs’ legal fees, says Maatman, a cost that employers could have to pay if they lose a lawsuit. More important, Maatman explains that the legal defense employers use to combat a race charge, for example, might not necessarily work as a defense against a color charge. As a result, employers might have to expend additional effort developing defenses for both charges.

Taking Preventive Action

Many employers combat unlawful discrimination with written policies and employee training. But many fail to include color bias in their prevention efforts.

“Color is included about half of the time” in employers’ anti-discrimination policies, estimates Lynn D. Lieber, CEO of Workplace Answers, a San Francisco-based employment law compliance training company. Lieber, an attorney, practiced employment law for 17 years, specializing in harassment and discrimination.

Mary Harlan, CEO and founder of Harlan Consulting in Houston, agrees that only about 50 percent of employer policies specifically mention color discrimination.

Francine Esposito, who practiced HR for seven years before becoming an attorney, says: “Very often I see policies that don’t include color, probably because employers think it is redundant, the same as race.” Currently, Esposito is a principal at the law firm of Grotta, Glassman & Hoffman PA in Roseland, N.J.

In addition to updating their policies, some employers could ramp up their color discrimination training efforts, say experts.

“My experience is that employers totally ignore color discrimination,” says the EEOC’s Royal, who handled the Applebee’s case. “They think they have met their requirement if they have discussed or trained people about race discrimination or national origin discrimination.”

Employers rarely request color discrimination training, agrees Esposito, who chairs her law firm’s employer training function and estimates she has trained tens of thousands of people in the past 10 years.

“If employers don’t have a harassment policy and/or train employees, they are liable,” she warns. “If employees don’t know they’re not supposed to be doing something, how is their employer attempting to prevent violations of the law? Employers need to prevent harassment by both training and having a policy.”

To ensure that employees get the message, Lieber’s online training requires employees to answer 60 test questions as well as to review and agree to abide by their employers’ policy.

Open Box, Step Inside

One of the dangers of providing color discrimination training is that it may open a Pandora’s box of potentially sensitive issues.

For example, many of the sources contacted for this article say blacks may be hesitant to discuss intraracial discrimination in a mixed group.

“You are reluctant to air your dirty laundry in public,” explains Jones. “There is a fear that people will use this sort of information against you and say, ‘Well, if African Americans are engaging in discrimination against each other, why should we be so concerned about our own discrimination?’ ”

Tanya Hernandez, a professor at the Rutgers University School of Law-Newark, says that Hispanics may tend to deny intraracial discrimination because national origin, race and color all blend together in potentially confusing ways that can cloud the issue of color for Hispanics.

“Part of the national pride in Latin American countries is to not acknowledge that racism exists, that there are different racial groups,” says Hernandez. For example, Hernandez and others say that color discrimination abounds in some Latin American countries—sometimes manifesting itself as national origin discrimination—despite the fact these nations appear on the surface to have no race-oriented problems.

Making Training Work

Tackling these and other potentially sensitive race issues requires time and attention.

Harlan says her experience as a trainer has shown that it is important to create a safe environment in which employees can bring up issues. To raise awareness and sensitivity, she shows a movie, The Color of Fear, in which one man of color describes feeling uncomfortable discussing intraracial color discrimination with other races present. “This is our private issue,” he says.

Jones also believes that training can defuse some racial tensions and “make the discussion more useful” by discussing color in the larger context of popular culture and art. For example, light often is associated with beauty and truth, while darkness evokes dirt or criminality.

Harlan adds that training should discuss the fact that whites still may receive benefits that minorities do not. It is important, she says, to discuss “the concept of white privilege, which is the big secret among whites—no one wants to talk about it.”

To help Hispanics sort through the potentially confusing intersection of race, color and national origin, Hernandez suggests making training very explicit. She suggests using plenty of detailed examples and anecdotes to explain the differences between these forms of discrimination.

Nat Alston, immediate past president of the National Association of African Americans in Human Resources and president of The Horizons Group in Columbia, Md., says that color discrimination training, “like any diversity training, must be done from the top. It’s got to be sincere, and it’s got to be with an eye toward educating.”

The focus on education is crucial. Employees and managers “in general are just shocked about what they didn’t know,” says Esposito. For example, they often are surprised to learn that “you don’t get immunity [from a bias claim] because you belong to the same group.”

Workplace trainer Lieber agrees that employees in the same racial group often incorrectly believe they have the right to speak to each other using racial or color-based epithets. This widespread misconception that “I can make Italian jokes because I am Italian” makes it more difficult for employers to cope with intraracial discrimination compared to interracial discrimination, she says.

Smart Business

Although amending policies and providing training to specifically address color discrimination may touch on potentially sensitive areas, these measures can provide employers with a certain degree of legal protection.

“The EEOC looks favorably on situations where employers include all protected classes in a policy,” says Bissell.

Jones says the amount of protection provided “depends upon the type of claim.” For claims that allege a hostile environment without economic harm, an employer’s efforts to prevent discrimination will work to its advantage. But when employees suffer some economic harm—such as being fired or losing out on a promotion or new job—training and policies won’t necessarily help much.

Overall, Jones believes that policies and training are worth the investment. “You are always going to appear more sympathetic to a jury or to a judge if you have taken preventative measures,” she says.

However, she warns that employers who fail to follow up and police their workforces won’t gain anything. In fact, employers who give only lip service to preventing color discrimination, then look the other way, likely will appear less sympathetic to a judge.

Ultimately, whatever legal protections employers gain may be less important than addressing an often overlooked form of discrimination that may be sapping employees’ productivity and morale.

The best-case scenario, says Alston, is for companies to realize that excluding anyone based on factors such as race, gender, ethnicity and color “doesn’t make good business sense. I don’t think a company can exist unless it has—as part of its culture—inclusion of ethnic groups and various groups based on sex and all. That’s just the way things are now.”

Patrick Mirza is editor of HR Magazine.

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