Color v. Race: Is There a Difference?

August 29, 2016

Under Title VII it is illegal to make an employment decision because of “color.” How, exactly, is color different than race?

The EEOC gives us some guidance on the definition of “color”:

“…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.

Moreover, the EEOC’s is targeting these types of claims for special enforcement and has stated:

Color discrimination in employment seems to be on the rise and has dramatically increased over the years to 1,241 charges. 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 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.”

According to the EEOC charges of color discrimination have risen more than 330% over the past decade. Moreover, the EEOC’s E-RACE initiative calls for 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. Don’t make an assumption that just because two individuals “appear” to be of the same ethnic background, that you do not have a “problem.” Take every complaint seriously!

Note: We are offering a free seminar on September 14, 2016 (1 pm-3 pm) on “The Impact of Domestic Terrorism on the  Workplace” in Pasadena, CA. If interested email us at

Federal court rejects LGBT discrimination claim on religious grounds!

August 22, 2016

Last week, a federal judge rejected the EEOC’s (Equal Employment Opportunity Commission) claim that Title VII covers transgender status or gender identity as protected classes. The EEOC the agency pursued a sex-discrimination claim on behalf of a former employee who is transgender and transitioning from male to female. The EEOC claimed that the Funeral Home fired the employee because the employee is transgender and/or because the employee did not conform to the employer’s sex- or gender-based preferences, expectations, or stereotypes. The court rejected that claim on several grounds, including the employers’ religious beliefs as protected by the Religious Freedom Restoration Act.

This is an interesting decision because the Religious Freedom Restoration Act prohibits the federal government from taking any action that substantially burdens the exercise of religion unless it is the least restrictive means possible. In Burwell v. Hobby Lobby Stores, the U.S. Supreme Court held that closely held corporation is a “person” that can hold a religious “belief” for purposes of the Religious Freedom Restoration Act. In dissenting in Hobby Lobby, Justice Ginsberg argued that the Hobby Lobby majority, which permitted a company to opt out of the Affordable Care Act’s contraceptive mandate on religious grounds, was a dangerous precedent because it would enable any company to opt out of any non-tax law on the basis of any sincerely held religious belief. By permitting the employer in this case to opt out of Title VII, is exactly what the federal court did.

The owner and operator of the company believes “that the Bible teaches that God creates people male or female.” He believes that “the Bible teaches that a person’s sex is an immutable God-given gift and that people should not deny or attempt to change their sex.” The owner apparently believes that he “would be violating God’s commands” if he were to permit one of his employees “to deny their sex while acting as a representative of the company, would violate God’s commands.”

The owner has a sincere religious belief that it would be violating God’s commands if he were to permit an employee who was born a biological male to dress in a traditionally female skirt-suit at one of his locations because doing so would support the idea that sex is a changeable social construct rather than an immutable God-given gift. The owner fought because he objected on religious grounds to: 1) being compelled to provide a skirt to an employee who was born a biological male; and 2) being compelled to allow an employee who was born a biological male to wear a skirt while working at his business.

To enforce Title VII (and the sex stereotyping body of case law that has developed under it) by requiring the Funeral Home to provide a skirt to and/or allow an employee born a biological male to wear a skirt at work would impose a substantial burden on the ability of the owner to conduct his business in accordance with his sincerely-held religious beliefs.

On the flip side, Religious freedom as a way to get out from employment laws might be going down a “slippery slope” if it is used as a means to discriminate.

NOTE: I am giving a free seminar, “The Impact of Domestic Terrorism on the Workplace” on September 14, 2016 at 1 pm. If interested, send an email to reserve your seat to rosa@pottsand


A Checklist to Avoid Discrimination Claims!

August 15, 2016

The follow recommendations by the Equal Employment Opportunity Commission (EEOC) is an excellent checklist to help employers avoid harassment related allegations and successful claims.

Recommendations Regarding Workplace Leadership and Accountability

  • Employers should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted. Employers should communicate and model a consistent commitment to that goal.
  • Employers should assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks.
  • Employers should conduct climate surveys to assess the extent to which harassment is a problem in their organization.
  • Employers should devote sufficient resources to harassment prevention efforts, both to ensure that such efforts are effective, and to reinforce the credibility of leadership’s commitment to creating a workplace free of harassment.
  • Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the severity of the infraction. In addition, employers should ensure that where harassment is found to have occurred, discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
  • Employers should hold mid-level managers and front-line supervisors accountable for preventing and/or responding to workplace harassment, including through the use of metrics and performance reviews.
  • If employers have a diversity and inclusion strategy and budget, harassment prevention should be an integral part of that strategy.

Recommendations Regarding Harassment Prevention Policies and Procedures

  • Employers should adopt and maintain a comprehensive anti-harassment policy (which prohibits harassment based on any protected characteristic, and which includes social media considerations) and should establish procedures consistent with the principles discussed in this report.
  • Employers should ensure that the anti-harassment policy, and in particular details about how to complain of harassment and how to report observed harassment, are communicated frequently to employees, in a variety of forms and methods.
  • Employers should offer reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.
  • Employers should be alert for any possibility of retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.
  • Employers should periodically “test” their reporting system to determine how well the system is working.
  • Employers should devote sufficient resources so that workplace investigations are prompt, objective, and thorough. Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable.
  • Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the behavior(s) at issue and the severity of the infraction. Employers should ensure that discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
  • In unionized workplaces, the labor union should ensure that its own policy and reporting system meet the principles outlined in this section.
  • Employers should dedicate sufficient resources to train middle-management and first-line supervisors on how to respond effectively to harassment that they observe, that is reported to them, or of which they have knowledge or information – even before such harassment reaches a legally-actionable level.

Well, you have heard many of the recommendations from us during our seminars. There is only one catch! You have to follow it!! Stay focused and let’s not forget what you learned in the training.

Post-Accident Drug Testing: Now Illegal?

August 8, 2016

OSHA believes that you violate the law if you require an employee to take a post-accident drug test. Let me repeat. According to OSHA, effective November 1, 2016, you violate the law if you automatically drug test any employee after an on-the-job accident. While this prohibition doesn’t appear in the actual text of the final rule, it does prominently appear in OSHA’s interpretation of the provision which prohibits employers from retaliating against employees who report a work-related injury or illness:

OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting (this final rule does not ban drug testing of employees). However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.… Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

“What about workers’ compensation laws,” you say? “State laws may require post-accident testing. What gives?” OSHA hears your cries, and commented as follows:

“A few commenters also raised the concern that the final rule will conflict with drug testing requirements contained in workers’ compensation laws. This concern is unwarranted. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws.”

Make no mistake, this interpretation is huge for employers. As a result of this new reporting standard, employer policies that require post-accident drug testing will face scrutiny by OSHA, and OSHA will cite you for any policy that mandates post-accident testing without consideration of the specific facts and circumstances of the injury. Further, OSHA will deem retaliatory any employer discipline for a failed or refused post-accident test unless the drug use is likely to have contributed to the accident and for which the test can accurately identify pre-accident drug-related impairment. That’s a high bar for employers to clear. This rule was to take effect on August 10, but OSHA, at least for the moment, has stated that it is delaying enforcement until November 1. If you have a drug testing policy or otherwise engage post-accident testing in your workplace, now is the time to review your policies and practices.

Note: This is a Federal OSHA issue however it probably will not take long for the “trickle-down-effect” for the various state agencies to pick up on it. This issue is very much on Federal OSHA’s radar, which means it must be on your radar also. For now, it’s just another “sharp stick in the eye” for employers on a Federal level. We will see if the various state OSHA agencies jump on the band wagon.


New Federal Holding: Gays are not a Protected Class Under Federal Law

August 1, 2016

Ok, here we go again! In a recent case (Hivley v. Ivy Tech Community College), a Federal Court of Appeals has recently ruled that Title VII of the Civil Rights Act of 1964, does not prohibit sexual-orientation discrimination. In doing so, this appellate court has taken a position directly contrary to that of the EEOC, which has concluded that Title VII expressly prohibits LGBT discrimination under the rubric of gender non-conformity-as-sex-discrimination.

The decision gives us a thorough analysis and summary of the state of the law (pro and con) of LGBT employment discrimination. Do not, however, dismiss this Court’s dismissal of Hivley’s claim as anti-LGBT. Instead of anti-LGBT rights, consider the 7th Circuit as pro-precedent. Indeed, even though the plaintiff loses her case, the Court has a lot to say on whether the result, which the Court believes Title VII mandates, is morally justified:

The cases as they stand do, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so. From an employee’s perspective, the right to marriage might not feel like a real right if she can be fired for exercising it. Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard-working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti-discrimination statute that includes sexual orientation. …

In one sense, the paradox is not our concern. Our task is to interpret Title VII as drafted by Congress…. Title VII prohibits discrimination only on the basis of gender. … As things stand now, however, our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up—but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage. …

Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it; many of the federal courts to consider the matter have stated that they do not condone it; and this court undoubtedly does not condone it. But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent….

Readers, the times are a changin’. When an openly gay man addresses the Republican National Convention in a prime-time speaking slot on the same night the nominee accepts his nomination, you know that our national attitude towards LGBT rights is moving towards full inclusion.

Employers, here is my challenge to you. On this issue, ignore Title VII, ignore the EEOC, and ignore the courts, and just do what is right. It is incomprehensible that in 2016 an employer can legally fire someone because of who he or she loves, dates, or marries. Do right by all of your employees. Enact policies prohibiting LGBT discrimination in your workplace. Send the message that you are an employer of inclusion, not exclusion.

The above is a federal opinion while some states, such as California, protect employees from discrimination based upon sexual orientation. Don’t get confused!