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Labeled as an “outreach, education and enforcement campaign” to bring a fresh, 21st century approach to combating racism in the workplace; in 2007 the EEOC launched a nation-wide initiative known as E-RACE.
Most notably the EEOC’s initiative is an emphasis on bringing class action claims directed toward employers that have policies or practices that result in “systematic” discrimination.
Employers need to know:
Individual (race) charges can be expanded into broad systemic investigations by the EEOC
Through the E-RACE initiative, the EEOC will focus primarily on policies and practices that have a disparate impact on employees on the basis of race and color.
What is “Race”?
Title VII does not contain a definition of “race.” Race discrimination includes discrimination on the basis of ancestry or physical or cultural characteristics associated with a certain race, such as skin color, hair texture or styles, or certain facial features.
Color discrimination occurs when a person is discriminated against based on his/her skin pigmentation (lightness or darkness of the skin), complexion, shade or tone. Color discrimination can occur between persons of different races or ethnicities, or even between persons of the same race and ethnicity. For example, an African American employer violates Title VII if he refuses to hire other African Americans whose skin is either darker or lighter than his own.
One of the areas receiving the most scrutiny will be employers’ hiring practices and decisions.
The EEOC believes that employers’ hiring practices may have a disparate impact upon people of color through employment decisions based on names, arrest and conviction records, employment and personality tests, and credit scores.
For example, an African-American might be denied a job when an arrest record shows up on a background check or if a credit score turns out to be low. Such a criteria, which have a disparate impact on minorities, were not considered in the past. But employers are increasingly considering such factors when hiring, and may unwittingly be denying jobs to large classes of minorities.
Many states have laws that restrict employers from asking about or considering criminal record when hiring. The EEOC holds that if an employer denies a job to an applicant because he or she has a criminal record, it could be considered discrimination if the person is a minority.
To make sure that its new initiative would be taken seriously, within one week of announcing E-RACE the EEOC filed a class lawsuit against Walgreens alleging that the nation-wide chain assigned managers, management trainees and pharmacists to low-performing stores and stores in African American communities because of their race. Without admitting liability, Walgreens settled the suit in July 2007 by agreeing to pay 20 million dollars to be distributed amongst an estimated 10,000 class members.
A Michigan employer agreed to pay $500,000 to settle a class race bias lawsuit based upon allegations that the employer refused to hire African Americans who were employed by a company they acquired through an asset acquisition.
In light of the EEOC’s E-RACE and Systemic Initiatives, employers need to take a closer look at their hiring policies and practices to make sure they are achieving diversity objectives and have not created unintended barriers to individuals based upon race and color. Employers can implement the following “best practices” with regard to recruitment and hiring:
Implement recruiting and hiring promotion practices designed to widen and diversify the pool of candidates considered for all employment openings.
Conduct periodic self-audits to determine whether current employment practices have a disproportionate effect on individuals based upon a person’s race or color.
Create objective, job related qualification standards for job openings, and make sure that those standards are objectively and consistently applied when selecting job candidates; and make sure that job openings are communicated and made known to all eligible employees.
“I don’t want employers to get the impression that they are some kind of bull’s-eye,” said EEOC attorney Paula Bruner, special assistant to the EEOC chairwoman. “We want them to be aware they need to step up in terms of their compliance with our laws.”