EEOC Targets 'Unconscious Bias'

Could your organization be hit with a race discrimination lawsuit for ‘unconscious bias’? How do you prevent legal liability for unconscious acts? This is a question puzzling many legal counsel as they try to protect their organizations from becoming the next Walgreens, the nation’s largest drugstore chain, which was recently sued by the Equal Employment Opportunity Commission (EEOC) for racial discrimination. ‘Unconscious bias’ is a fundamental element of the EEOC’s recent initiative called Eradicating Racism and Colorism from Employment (E-RACE), an enforcement effort that focuses on filing lawsuits challenging ‘subtle’ discrimination and educating employers.

The Suit Against Walgreens

In the lawsuit, the EEOC alleges that Walgreens uses race as a factor to place managers and pharmacists in low-performing stores, and in locations in African-American communities. The company denies the charges. Although the racism initiative, which emphasizes public education and outreach, is not directly tied to the Walgreens action, the EEOC is making an example of the company.

According to the EEOC, race continues to be the leading basis of charges of discrimination. Of the 75,768 charges of discrimination filed with the EEOC in fiscal year 2006, 35.9% alleged racial discrimination. The EEOC also has seen a substantial increase in discrimination claims based on ‘color,’ which have soared from 374 in 1992 to 1241 in 2006.

How are prudent employers to prevent ‘unconscious bias’ or ‘subtle’ racism? How do you protect your company from a potentially devastating class action lawsuit like the one being faced by Walgreens? The best answers come from a non-binding ‘Guidance’ issued on the subject of race and color discrimination last year by the EEOC. This very broad Guidance, which suggests employers need to take serious action and affirmative steps to eradicate race discrimination, demonstrated how seriously the EEOC takes race and color discrimination.

The EEOC Guidelines

In April 2006, the EEOC issued comprehensive new Guidance as to what constitutes race and color discrimination under Title VII of the Civil Rights Act of 1964. The far-reaching Guidance alerts employers to the complex and profound ways that racial and color-based bias or stereotyping can affect recruitment and hiring, as well as all terms and conditions of employment. The EEOC notes that a review of recruitment and employment practices, as well as training, are among the key ways to avoid liability and to enable the assertion of an affirmative defense.

The new Guidance places affirmative responsibilities on employers and supervisors to avoid discrimination, such as reviewing hiring practices to ensure that recruiting is conducted in diverse applicant pools, not solely through ‘word of mouth.’ The EEOC emphasizes that unintentional discrimination can arise in subtle ways. For example, requiring a certain educational degree for a job may tend to screen out individuals of certain races and national origins; therefore, employers should only set such educational requirements if they are truly necessary for performance of the job. The EEOC also addressed the insidious ways discrimination can occur, even citing a lack of informal networking opportunities away from the office as potentially discriminatory.

Expansive Definitions of ‘Race’ and ‘Color’

The Guidance defines ‘race’ very broadly to include discrimination based on physical characteristics associated with race ‘ such as hair, facial features, height, weight, body shape, type, racial or ethnic hairstyles, lip size, eye shape and skin color. Also included in the definition is discrimination based on ancestry, cultural characteristics (dress, grooming practices, accent, manner of speech) race-related illness, perception of an individual’s race, association with someone of a particular race, ‘race plus’ another protected category and ‘reverse’ race discrimination.

The EEOC defines ‘color’ discrimination as illegal treatment based on an individual’s skin pigmentation (lightness or darkness), complexion, shade or tone. Such discrimination can occur ‘between persons of different races or ethnicities, or even between persons of the same race or ethnicity.’ Thus, a light-complexioned African-American could be treated discriminatorily by a darker-skinned African-American supervisor. An employer’s preference for light-skinned individuals over dark-skinned employees would be discriminatory. In addition to defining ‘race’ and ‘color’ discrimination, the Guidance describes what it refers to as ‘related protected bases’ ‘ multiple protected bases of discrimination (national origin, religion) and ‘intersectional discrimination’ ‘ discrimination based on more than one protected category, such as race and gender.

Subtle Racial Stereotyping or Bias Is Discriminatory

The EEOC notes that Title VII prohibits not only intentional discrimination, but also practices that appear to be neutral, but limit employment opportunities for some racial groups that are not based on business need. Intentional discrimination ‘includes not only racial animosity, but also conscious or unconscious stereotypes about the abilities, traits or performance of individuals of certain racial groups.’ Even comments by an interviewer that ‘we were looking for a clean cut image’ or ‘because of our sophisticated upscale location we need to look for certain ‘soft skills” ‘ could be reflective of racial stereotyping or bias. The agency warns employers to be alert for ‘code words’ that are neutral on their face, but in context convey a racial meaning.

Recruiting and Hiring Mandates

The Guidance instructs employers not to rely on ‘word-of-mouth’ recruiting efforts that tend to seek candidates from homogenous labor pools, but instead to take affirmative steps to ensure that hiring efforts are targeted at diverse populations. For example, an employer in a largely Caucasian community could be engaging in discriminatory hiring practices by recruiting only from its own community, without outreach into a larger metropolitan labor pool that has a higher percentage of African-Americans.

The Guidance also cautions employers against imposing criteria for jobs that might be over-reaching and are not absolutely required for the position. Requirements such as possessing a certain educational degree or the absence of a criminal record tend to screen out minority applicants and must be based on strictly on business necessity rather than employer preference.

Is Failure to Socialize Outside of Work Discriminatory?

The Guidelines focus on some of the less common aspects of the principle that discrimination can occur in any aspect of employment ‘ including job assignments, performance evaluations, mentoring, training, informal networking, appearance and grooming standards and discipline and termination.

The EEOC states that it would be illegal for an employer to assign African-American and Asian salespeople to sales territories with high percentages of African-American or Asian customers, in hopes that it will increase sales and benefit the salespersons’ careers. Title VII would be violated because the employer deprived employees of employment opportunities by limiting, segregating, or classifying them on the basis of race. Similarly, making job assignments based on customer preference is not a defense to racial or color-based discrimination, even if the employer loses the customer’s business by not following the customer’s request. The Guidelines refer to a home healthcare employer whose customer expressed the desire for Caucasian home health-care aides. For the employer to follow a customer’s discriminatory preferences is unlawful as it discriminates against the non-preferred employees.

Entering a new legal terrain, the EEOC gives an example of an organization that has an active networking culture, both during and after the workday. Failure of managers to invite certain employees to after-hours social events ‘ or who invited them later than others ‘ could be discriminating based on race or national origin if the lack of networking opportunities affects the individual’s terms and conditions of employment.

When a Single Incident Is Sufficiently Severe

The Guidelines state that when conduct is racially derogatory in nature, or involves racial mistreatment, unwelcomeness is irrelevant, even when the alleged harasser and victim are of the same race. A single extremely serious incident of harassment might be sufficient to violate Title VII, especially if it is a physical act, such as depiction of a noose, a burning cross, a favorable reference to the Ku Klux Klan, the use of the ‘n’ word or a racial comparison to an animal.

Employer Proactive Prevention

The EEOC makes clear that it is insufficient for employers to merely recognize and put an end to racial and color-based harassment ‘ affirmative preventative measure are imperative. Employers must carefully scrutinize their recruiting and hiring practices to ensure that they draw from a diverse labor pool and do not use job criteria that impermissibly screen out candidates of certain races, colors or national origins. Similarly, employers must be attuned to the subtle and unconscious ways that race and color stereotypes and bias can negatively affect all aspects of an individual’s employment, such as networking, mentoring, etc.

The Commission stresses that employers can avoid discrimination by: