RACIAL DISCRIMINATION
Racial discrimination is the practice of letting a person's race or skin color unfairly become a factor when deciding who receives a job, promotion, or other employment benefit. It most often affects minority individuals who feel they have been unfairly discriminated against in favor of a Caucasian (or white) individual, but there have been recent cases where whites have claimed that reverse discrimination has occurred—that is, the minority received unfairly favorable treatment at the expense of the white individual.
Court rulings handed down through the years have determined that a company's responsibility not to discriminate based on race begins even before an individual is hired. Companies can be held liable if pre-employment screening or testing is determined to be discriminatory, if applications ask unacceptable questions designed to screen for race, or if the overall selection process is deemed to be unfair. One of the main indicators that racial discrimination has occurred in the hiring process involves the qualifications of the job applicants. While a slight difference in qualifications between a minority and nonminority candidate do not automatically indicate racial bias (if the lesser qualified nonminority candidate is hired over the minority candidate), a drastic difference in qualifications has almost always been upheld by the courts as a sure sign of racial discrimination.
Racial discrimination is a high-profile issue in the business world and is a very real problem that still exists—and in some cases is getting worse. In a 1998 study by the nonprofit group Catalyst called "Women of Color in Corporate Management: A Statistical Picture," it was shown that minority women, while now accounting for almost a quarter of all women in the workplace, occupied only 15 percent of the management positions held by women. The study determined that a combination of racial discrimination and the glass ceiling (a term that describes the difficulty women in general have in reaching management positions) was responsible for the disparity in those numbers.
FEDERAL LAWS STRONGLY PROHIBIT RACIAL DISCRIMINATION
Since the social unrest of the 1960s, the federal government has been actively involved in preventing racial discrimination in the workplace. The most important law covering racial discrimination on the job is the Civil Rights Act of 1964—specifically, Title VII of that act, which strictly prohibits all forms of discrimination on the basis of race, color, religion, sex, or national origin in all aspects of employment. Written during a tumultuous period in American history when many people expected the federal government to right social wrongs, the law was a monumental piece of legislation that changed the American employment landscape.
The law stated that it was unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." The law covers hiring, dismissals, compensation, and all other aspects of employment, while also covering actual employment opportunities that are available. Examples of racial discrimination that would fall under the scope of the act include:
I. An employee who alleges that his or her manager only promotes nonminority employees and keeps minorities in entry-level positions.
II. An employee who alleges that a manager or other person in power tells jokes or makes statements that are demeaning, insulting, or offensive to members of a minority group.
III. A manager who makes it clear that he or she believes in racial stereotypes by admitting that he or she refuses to promote a certain minority group because "all [members of that group] are lazy."
The law covers businesses with 15 or more employees and applies to all private, federal, state, and local employers. In many states, businesses with fewer than 15 employees face the same rules thanks to local or state statutes. In addition to the hiring provisions, the law dictates that employers cannot in any way limit or segregate employees based on race in any way that would adversely affect their chances at promotions. It does allow for two narrow exceptions to the law—businesses may use a "bona fide" seniority or merit system and measure performance and earnings based on a quantity or quality measuring system, and employers may use ability tests to determine the most qualified candidates for a job as long as the test does not discriminate racially in any way.
In 1991, the 1964 law was significantly amended for the first time by the passage of the Civil Rights Act of 1991. The law was passed to override several Supreme Court decisions that had made it much more difficult for employees to prove that racial discrimination had occurred. One of the many changes of the 1991 law is that it closed a loophole in the 1964 act that also involved a Civil War-era statute known as 42 U.S.C. Section 1981. The Supreme Court had held that Section 1981 applied to hiring and sometimes to promotions, but that it did not cover racial harassment that occurred in the workplace once a person was hired. The 1991 act said that all racial discrimination was covered by U.S. law, including post-hire harassment.
The other major enhancement under the 1991 act involved monetary damages. Before the law was passed, employees who sued an employer for discrimination and won could only recover lost wages or salary, lost benefits, attorney fees, other legal costs, and the costs associated with reinstatement. The 1991 law said that employees could also recover punitive monetary damages for pain and emotional suffering, mental anguish, future lost wages and benefits, and more. Those damages could only be collected if it was proven that the discrimination was intentional and there was clearly "malice" or "reckless indifference" exhibited, but this was a radical change from the previous legislation. To protect employers from overly large court settlements, the amount of punitive damages was capped at $300,000 for certain cases of discrimination, although no caps apply in cases of ethnic or racial discrimination.
Other changes in the 1991 law involve employment practices that have a "disparate impact" on racial groups (that is, affect them more than nonminority groups), make it easier for a plaintiff to receive damages in cases where a discriminatory practice and a nondiscriminatory practice both played a part in a hiring or promotion decision, and allow employees to challenge seniority systems that are put into place if the systems are later determined to be discriminatory (in the past, workers could only sue at the time the system was first put into place). Together, all of these changes made it easier for workers to prove discrimination claims, which has increased the number of lawsuits nationwide.
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
To oversee the federal civil rights legislation, a separate administrative body was created as part of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission, or EEOC, was created to enforce laws that prevent discrimination based on race, sex, color, religion, national origin, disability, or age when hiring, firing, or promoting employees. Four groups—race, color, sex, and creed—were given "protected status" under the law, which was to be upheld by the EEOC. The commission is an independent regulatory body that has the power to launch investigations, file lawsuits, and create programs to eliminate discrimination.
The EEOC has been a controversial organization throughout its nearly 40-year history. Liberal politicians believe that the agency was long overdue and that it is absolutely imperative that the agency be proactive in identifying and fighting discrimination in the courts, while conservatives believe that the organization is a perfect example of "big government" that intrudes far too deeply into citizens' lives. The agency's strong enforcement of affirmative action policies (which actively seek to promote minorities over equally qualified nonminorities in order to address past discrimination) has been its most controversial action, as many Americans oppose affirmative action.
Even with political opposition, the EEOC continues to be effective in fighting racial discrimination. In 1997, for example, the agency collected $111 million in judgements for people who claimed to have been harmed by racial discrimination, including a $34 million settlement with Mitsubishi Motor Manufacturing. Each year, the EEOC handles nearly 50,000 claims.
STEPS TAKEN BY EMPLOYERS TO END DISCRIMINATION
Because racial discrimination can have disastrous results for a company—including lower morale, a divided workplace, expensive lawsuits, and public embarrassment—most companies are taking highly visible steps to curtail discrimination in the workplace. Steps taken include in-house workshops and training sessions on racial sensitivity and diversity in the workplace, training on employment laws, and adopting strict new rules against discrimination. Training magazine reported in 1998 that more than half of the approximately 137,000 companies in the United States with more than 100 employees had instituted some form of racial sensitivity training.
Unfortunately, many companies do not take action against racial discrimination until faced with an incident at their workplace or until they are named defendant in a large lawsuit. Instead of being proactive and instituting training programs before a problem arises, companies tend to be slow to act. In November of 2000, the Coca-Cola Company agreed to settle a racial discrimination suit by paying a penalty of $192.5 million. Sara Lee Corporation was forced to make a large cash settlement to a former employee who says that he was the butt of racist jokes, disparaging remarks, and was even forced to view a noose hanging in his workplace. In addition to the cash settlement, which was confidential, Sara Lee also agreed to establish training programs to raise awareness of the company's anti-discrimination policies.
To make sure that it is on the cutting edge of preventing racial discrimination, IBM has established individual employee task forces for almost every group that is employed by the huge company, including men, women, blacks, Hispanics, Asians, Native Americans, gays and lesbians, and disabled persons. The groups, which are established at many of the company's offices, meet regularly to discuss diversity and workplace concerns. This represents an extreme example of the steps companies are taking to prevent discrimination, but actions of this type are becoming more common.
Companies need to take steps to ensure that the training programs they adopt are appropriate and serve the purpose for which they are intended. For example, publishing giant R.R. Donnelly & Sons was sued in 1998 because elements of its training program were deemed discriminatory. Scenes from a training film that depicted the lynching of black slaves, as well as offensive questions from a questionnaire designed to make white workers confront racism, were challenged by a group of 3,500 black Donnelly employees that filed suit against the company. The training program had been instituted after the company was hit with a discrimination lawsuit in 1993. There are so many examples of diversity training gone bad that a new group of consultants has come into existence—their sole job is to visit companies to correct the damage caused by faulty diversity training programs.
AFFIRMATIVE ACTION
Affirmative action is a controversial policy that is intended to counteract racial discrimination. West's Encyclopedia of American Law defines affirmative action as referring "to both mandatory and voluntary programs intended to affirm the civil rights of designated classes of individuals by taking positive actions to protect them." In other words, affirmative action actively promotes the interest of minorities over nonminorities in order to correct past discrimination. For example, in a situation where a test is required before starting a particular job or to earn a promotion, minorities may be given preference over nonminorities for that job or promotion even though they score lower on the test than the nonminority worker. While this may seem wrong to some people, those who support affirmative action argue that past acts of discrimination have been so blatant that extraordinary steps are required to overcome those acts. At the start of the twenty-first century, however, affirmative action programs are under fire across the United States, with numerous court challenges occurring across the country.
One effect of affirmative action has been an increase in "reverse discrimination" lawsuits, in which nonminority workers allege that they have been discriminated against. In situations where companies have used affirmative action to help undo decades of blatant discrimination, white workers have become upset over being passed over for jobs and promotions. They claim that, if it is unfair to not hire a qualified worker just because he or she is a minority, then it should be equally unfair to not hire a qualified worker just because he or she is white. White employees have argued that, even though they have higher qualifications, experience, and skill, they are being passed over for jobs in favor of less-qualified candidates who are minorities.
In response to reverse discrimination lawsuits involving affirmative action programs, courts have recognized the need to overcome past racial bias, but have also sided with the nonminority workers in many cases. For example, in an attempt to redress past problems, a public university ruled that women and minorities would no longer have to take a test to qualify for a special employment program. As a result, for nine years, every job opening in the program went to a woman or a minority, even though white males represented half of the applicant pool. When the university's program was challenged in a lawsuit brought by white males, the courts ruled that the test exemption ensured that "the sole purpose of the affirmative action plan was to circumvent a lawful … preference program" and that the exemption violated Title VII because it caused white men to be excluded from the job in question. The school was forced to pay $113,000 to settle the case and correct the reverse discrimination.
Reverse discrimination does not always have to involve affirmative action, however. In 1999, five white instructors at traditionally black Livingstone College sued the college and charged it with racial discrimination. The five faculty members argued that documents proved that college administrators were attempting to fill all faculty positions with black teachers, going so far as to remove whites from department chairs and other positions. One of the plaintiffs in the case even filed a separate lawsuit, arguing that he had suffered "emotional pain and suffering" when he was passed over in favor of less-qualified black teachers.
RACIAL DISCRIMINATION STILL ON THE RISE
While great strides have been made to improve race relations in some areas, there is statistical evidence to show that racial discrimination in the workplace is still disturbingly commonplace. In 2000, the EEOC reported the results of a study of workplaces in North Carolina that showed that accusations of racial harassment on the job nearly quadrupled between 1996 and 2000, jumping from 16 reported incidents in 1996 to 62 in 2000 in just one region of the state. Mindy Weinstein, attorney at the EEOC office in Charlotte, North Carolina, was uncertain of what caused the increase, but she had some ideas. "There's a new generation of workers today who were not raised in the civil rights movement, who may not have been aware of the laws that came about because of that time," she said in the Raleigh News & Observer . "We think it's largely a reflection of what's going on in society as a whole."
Another potential cause of the increase is the fact that, thanks to earlier efforts to wipe out racial discrimination, there are more minorities than ever before in the workplace and also in high-level positions of power. Because minorities have been able to compete on a level playing field, they have been able to rise through the ranks more quickly, often taking jobs that were traditionally held by white workers. This can lead to resentment among the formerly dominant workers who are now lower on the employment ladder.
Another example of how racial discrimination is on the rise despite efforts to combat it involves wages. Traditionally, there has been a "wage gap" between minority and nonminority employees. That means that, when a minority worker and a nonminority worker held the exact same job, the minority worker was paid less money for his or her efforts. From the 1940s to the 1970s, that gap between minority and nonminority workers actually narrowed as civil rights legislation was enacted and prevailing attitudes changed. However, in the 1980s and 1990s, the gap has actually reversed directions and begun to widen once again, according to Nation's Cities Weekly. The gap is increasing for both men and women and for all educational levels. In addition, the unemployment level for black workers has risen at the same time. A study by the Catalyst nonprofit group reported in HR Focus showed that men of color in management earned 75 cents for every dollar earned by white males in the same job in 1998, while women of color earned 57 cents.
FURTHER READING:
"Breaking the Color Barrier." HR Focus. July 1998.
"The Civil Rights Act of 1964 and the Equal Opportunity Employment Commission." National Archives and Records Administration website. http://www.nara.gov/education/cc/eeoc.html .
"Damned if You Do, Damned if You Don't." Forbes. December 15, 1998.
"Discrimination Laws Provide Protection to Job Applicants." Supervision. August 1999.
"Institutional Racism, Part II: Race, Skill, and Hiring in U.S. Cities." Nation's Cities Weekly. June 19, 2000.
Moss, Philip I., and Chris Tilly. Stories Employers Tell: Race, Skill and Hiring in America (Multi-City Study of Inequality). Russell Sage Foundation, 2001.
"Reports of Racism at Work Increasing." Raleigh News & Observer. December 11, 2000.
SEE ALSO: Affirmative Action