The EEOC has observed an alarming increase in the number of color discrimination charge filings across the country. Color bias charges have increased more than 200% in the past nine years, from 413 in 1994 to 1,555 in 2003. The majority of charge filings in 2002 were in the Northeast (44%), followed by the West (21%), South (15%), Midwest (12.5%) and Southwest (7.5%). The majority of EEOC charges alleging color discrimination were brought in five district offices in large cities: New York, Boston, Miami, Chicago, and Houston.
Color bias complaints usually are related to the individual's country of origin, with individuals from one country or geographically distinct area alleging discrimination by those from another country or geographic area. The EEOC suggests that color discrimination is more prevalent among cultures in India, Pakistan and South America. Therefore, as employees coming from other countries join the American workforce, employers should be more attentive to potential color discrimination issues as new employees from differing backgrounds bring the values and mores of their cultures into the workplace.
COLOR DISCRIMINATION CLAIMS CAN BE STAND ALONE The current trend indicates that in some instances, color discrimination claims are being made on a stand-alone basis. For example, last year a casual-dining restaurant settled what was considered to be a "rare" harassment and retaliation lawsuit that the EEOC brought on behalf of a lighter-skinned African American server who complained that a darker-skinned African American manager at the restaurant discriminated against him.
The server alleged he was subjected to derogatory remarks about his skin color and was terminated after he complained to the corporate office about the manager's behavior (which was viewed as retaliation). Prior to this lawsuit, it was reported that the restaurant did not have a written policy in effect at any of its nationwide restaurants prohibiting discrimination based on color.
The obvious issue for employers is how they should guard against the possibility of color discrimination. When determining whether an employer should be liable for unlawful discrimination, a key factor that courts consider is whether the employer took reasonable steps to prevent and investigate the discrimination. For starters, employers should ensure that their anti-discrimination policy specifically includes color as a protected category. Since color discrimination has not received as much awareness as other types of unlawful discrimination, employers should consider including examples of unlawful color discrimination in mandatory harassment discrimination prevention training.
SPECIAL TRAINING HELPS MANAGERS RESPOND TO ALLEGATIONS Supervisors also should be required to attend training to enable them to respond properly to allegations of discrimination including all forms of prohibited behavior or acts under the anti-discrimination laws. They need to understand that, color discrimination often occurs when a lighter-skinned employee discriminates against a darker-skinned employee of the same race, and vice versa. It also can occur between races. Because most supervisors are not aware that color is a protected category, they often improperly discount such complaints and do not take them seriously. Supervisors need proper training to recognize and remedy these situations.
Because of the ever-changing demographics of the workforce, the increase in discrimination claims on a stand-alone category basis is a trend that is likely to continue for the foreseeable future. Thus, employers need to develop an effective EEO plan, training and complaint and investigative procedures to ensure that preventing all types of discrimination, including based on color, gets the attention it deserves.
Krupin O'Brien LLC is a nationally recognized law firm specializing in employment and labor law and exclusively representing employers in the areas of labor relations, employment law, business immigration and related litigation. The firm has a particular expertise in representing restaurants and the hospitality industry, and represents companies and ownership groups of all sizes, both local and nationally. For further information contact Ana Salper, an attorney with Krupin O'Brien LLC, where she represents clients on all forms of litigation, and counsels clients on diverse employment and labor matters. Ms. Salper oversees the firm's New York office and is a member of the New York State Bar. Contact her at: 212-745-1387 or firstname.lastname@example.org.
Supervisors need proper training to recognize and remedy discrimination situations.
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The Equal Employment Opportunity Commission states that it is equally important that employers realize that "color" is a separate, protected category under Title VII. Employers violate the federal law when they treat employees differently based on color, including the harassment of employees because of their respective skin colors.