Racial Discrimination

Title VII of the Civil Rights Act of 1963 makes it illegal for an employer to discriminate on the basis of race or national origin. This statute covers employers with 15 or more employees who work 20 or more calendar weeks per year.

Specifically, employers cannot have employment policies that intentionally or unintentionally discriminate on the basis of race or national origin. It is also illegal to permit a hostile racial environment to exist, and to retaliate against employees for claiming the protections offered by this law. These are four broad areas of coverage: (1) Intentional discrimination; (2) unintentional discrimination; (3) hostile environment; and (4) retaliation.

INTENTIONAL DISCRIMINATION

Cases of intentional discrimination can be addressed by plaintiffs suing under a "disparate treatment" cause of action under Title VII. Under the disparate treatment theory, the plaintiff must first establish a basic case of discrimination. This basic or "prima facie" case is made by showing:

1. membership in the protected group;
2. satisfactory job performance by the employee;
3. termination; and
4. replacement of the plaintiff by someone outside the protected group who has equal or lesser qualifications.

If the plaintiff can make this "prima facie" case, the burden of proof shifts to the employer to show a legitimate, nondiscriminatory reason for the challenged employment practice. If the employer cannot do this, the plaintiff wins.

If the employer can do this, the plaintiff has to show that the employer's proffered "legitimate" reason is only a sham in order to win the case. The employee must also show that the real reason was race or national origin.

UNINTENTIONAL DISCRIMINATION

Discrimination may be unintentional, but still harmful. These cases are addressed by plaintiffs suing under a "disparate impact" cause of action under Title VII. Under the "disparate impact" theory, the plaintiff must show that a facially neutral employment practice has a significant adverse effect on the protected class, compared to others. The plaintiff does not have to show that the employer had a discriminatory motivation.

HOSTILE ENVIRONMENT

Another source of Title VII liability is where an employee can show that a hostile racial environment prevails in the workplace.

EMPLOYER DEFENSES

The employer can defend against a Title VII claim by using the "bona fide occupational qualification" defense - a claim by the employer that the nature of the position required the particular employment practice being challenged.

This is particularly hard to do when an employment practice involves race. An example of a "bona fide occupational qualification" in the area of handicap discrimination will show why. It would be legal to discriminate against people in wheelchairs if you were hiring for the position of marathon runner. Requiring legs would be a BFOQ in that case. However, it's tough to imagine a situation where race or national origin really would be a bona fide occupational qualification.

RETALIATION

Employers cannot retaliate against an employee for opposing an unlawful discrimination practice. Firing someone for filing a charge with the Equal Employment Opportunity Commission (EEOC) is a Title VII violation. The mechanism for filing a charge with the EEOC is discussed elsewhere in the Help Center.

STATE LAW

It is worth noting that most states have laws which parallel or reinforce federal law on race and national origin discrimination. You should consult an attorney in your home state to find out the details of state laws.

Copyright 1996 David Trieloff, Esq.

Mr. Trieloff passed away on April 16th, 1998 and is sadly missed by the staff of the Business Know-How where he was a member of the volunteer staff.