“Color” Discrimination Claims are on the Rise!

We have had a few inquiries as to what exactly is “Color discrimination” and how that is different from “Race Discrimination.” More importantly, Color discrimination is on the rise. The EEOC gives us some guidance in its Compliance Manual on Race and Color Discrimination. “Color” is defined as:

“…pigmentation, complexion, or skin shade or tone. Thus, color discrimination occurs when a person is discriminated against based on the lightness, darkness, or other color characteristic of the person.”

Even though race and color clearly overlap, they are not synonymous. Thus, color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity.

The EEOC also provides some hypothetical examples of color discrimination:

An African American employer violates Title VII if she refuses to hire other African Americans whose skin is either darker or lighter than her own. For example, it would be an act of unlawful color discrimination for an employer to refuse to hire a dark-skinned person to work at a cosmetics counter because the vendor prefers a “light skinned representative.”

A dark-complexioned African American manager violates Title VII if he frequently makes offensive jokes and comments about the skin color of a light-complexioned subordinate. This example is based on the EEOC’s settlement of a claim against Applebee’s restaurant.

Color discrimination in employment seems to be on the rise. In Fiscal Year 1992, EEOC received 374 charges alleging color-based discrimination. By Fiscal Year 2006, charge-filings alleging color discrimination increased to 1,241. A recent study conducted by a Vanderbilt University professor “found that those with lighter skin earn on average 8 to 15 percent more than immigrants with the darkest skin tone — even when taking into account education and language proficiency. This trend continued even when comparing people of the same race or ethnicity.” Similarly, a 2006 University of Georgia survey revealed that a light-skinned Black male with only a Bachelor’s degree and basic work experience would be preferred over a dark-skinned Black male with an MBA and past managerial positions. However, in the case of Black female applicants seeking a job, “the more qualified or experienced darker-skinned woman got it, but if the qualifications were identical, the lighter-skinned woman was preferred.”

While these claims are still rare, it is significant that EEOC charges of color discrimination have risen more than 330% between 1992 and 2013. Now, as a result, the EEOC has initiated a stepped up enforcement in this area.

It may not be a defense to a discrimination claim that two African American employees were treated differently if one is light complexioned and the other is dark complexioned. For employers, it’s important to keep in mind that color discrimination is illegal, and is different than race discrimination.

NOTE: THE PODCAST ALLTHIS WEEK IS DISCUSSING WHAT SHOULD OR SHOULD NOT BE IN A PERSONNEL FILE. ARE YOU IN COMPLIANCE?

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