J. Racial Discrimination

Statistics indicate that more than 29 million Afro-Americans, 17 million Hispanic Americans, 6 million Jews, 2.5 million people of Arab descent and 1.1 million Native Americans will enter the U.S. workforce during the next 20 years. Although such minorities were discriminated against in the past, the enactment of various federal laws, including Title VII of the Civil Rights Act and 42 USC Sections 1981 and 1982, prohibits intentional discrimination based upon ancestry or ethnicity. Some companies practice blatant forms of minority discrimination by paying lower salary and other compen- sation to blacks, Hispanics, Asians, Pacific Islanders, American Indian and Alaskan natives (Native Americans), and other persons having origins in Europe, North America and the Middle East. Others engage in quota systems by denying promotions and jobs to individuals on the basis of race and color. Still other employers utilize more sophisti- cated and subtle forms of race discrimination. In fact, of the more than 70,000 complaints filed with the EEOC in l994 alleging job discrimination, complaints based on race accounted for more than 40 percent, the most of any category.

Federal laws prohibit employers of 15 or more employees from discriminating on the basis of race or color. Specifically, federal law applies to companies with a minimum of 15 employees on each working day in at least 20 weeks in the current or preceding calendar year; federal laws do not apply to employers with 14 or fewer employees, private membership clubs, religious organizations and Indian tribes. Virtually all states, however, have even stronger anti-discrimination laws directed to fighting job-related race and minority discrimination. In many states, for example, companies with fewer than eight employees can be found guilty of discrimination.

Both federal and state laws generally forbid private employers, labor unions, and state and local government agencies from:

• Denying an applicant a job on the basis of race or color;
• Denying promotions, transfer or assignments on the basis of race or color;
• Penalizing workers with reduced privileges, reduced employment opportunities and reduced compensation on the basis of race or color;
• Firing a worker on the basis of race or color.

Discrimination can occur during any of the following employment stages: recruiting, interviewing and hiring, promotion, training, transfer and assignment, discipline, layoffs, and discharge procedures. Also, an illegal act can be committed by any member of the employer's staff, from the president down to the supervisor, inter- viewer or receptionist. It can even occur through outside independent contractors (such as surveillance teams hired by the company). In one case, for example, a black supervisor was confined to an office and interrogated by private investigators hired by the company to obtain a confession regarding missing warehouse stock. Despite his claims of innocence, the employee was questioned for two hours; later he was fired by the company. At the trial it was determined that the reason given for the firing was pretextual and that the company was out to discharge him because he was black. Although the company claimed it was not responsible for the incident since it had hired an outside service to investigate and make recommendations regarding the matter, the individual was awarded a large settlement for mental anguish, even though he obtained a better-paying job within one month after his discharge.

Proving Allegations. Typically, the EEOC or relevant state agency will investigate charges of race discrimination or related retaliation. The EEOC has broad power to secure information and company records via subpoena, field investigations, audits, and interviewing witnesses, both employees and outsiders. Statistical data may be presented to demonstrate a pattern or practice of discriminatory conduct. Often, contents of an individual's personnel files and files of others in similar situations are examined and presented. Data on workforce composition may reveal a pattern or practice of exclusion or channeling. Regional or national data may shed light on whether a decision locally made was, in fact, racially discriminatory.

In cases where circumstantial evidence is presented to prove race discrimination, the burden is on the plaintiff to raise an inference of discrimination. This is often done through the use of statistics, computer records, payroll records, and so forth.

TIP: For more information on The Civil Rights Act of 1991 and its impact on race and color discrimination claims, consult a previous section in this chapter.

Affirmative Action

Initially, affirmative action programs were begun in compliance with federal regulations imposed upon employers having government contracts or subcontracts worth in excess of $10,000. Recent Supreme Court decisions have modified the rules so that an employer's voluntary affirmative action plan will be legal if there is a "manifest imbalance" in the makeup of the employer's workforce for a particular job category, the plan has a limited duration, and the legitimate expectations of other workers are not trampled upon. Thus, voluntary reasonable affirmative action programs established by employers will not be found to constitute reverse discrimination provided company plans have flexible goals and not rigid quotas which exclude a whole class of applicant (e.g., white males). Additionally, a company must be able to justify, statistically or otherwise, the need for an affirmative action plan and the plan must be capable of being eliminated or altered when certain goals are met.

TIP: There is no private duty for companies hiring minority employees to institute affirmative action policies. In today's job market, companies are looking for the best possible candidate. If it happens that a company would prefer choosing the minority candidate with equal credentials over the non-minority applicant, so much the better. Although the laws have not changed dramatically during the past few years regarding the legality of affirmative action plans, the current economic climate is making it far more difficult for minority applicants to utilize such plans because fewer companies are hiring employees, minority or otherwise.