He held the same position with another company before relocating. Dexter is rejected. When he finds out that a less-qualified White person was hired instead of him, Dexter alleges discrimination.
The company secretary credibly testifies that she overheard an argument between the owner and his son over whether Dexter should be hired.
Because Dexter was clearly the most qualified applicant, the son wanted to hire Dexter, but the owner did not. Racially biased decisionmaking and treatment, however, are not always conscious. Charles, an African American, files a charge alleging that the employer, a retailer, used an interview to discriminate against him in favor of a less experienced White applicant. In addition, the investigator notices that, like the person hired over Charles, the rest of the staff also is White even though the qualified labor market is significantly more diverse.
The investigator concludes that the employer rejected Charles based on racial stereotyping or bias. Title VII also does not permit racially motivated decisions driven by business concerns — for example, concerns about the effect on employee relations, 40 or the negative reaction of clients or customers.
An employer admits that it usually assigns Black and Asian American salespersons to sales territories with a high percentage of Blacks and Asian Americans. It is uncontested that the employer does not harbor ill-will toward either group. Charges are filed by employees who want the opportunity to work in territories regardless of their racial makeup. The employer has violated Title VII, which prohibits employers from depriving employees of employment opportunities by limiting, segregating, or classifying them on the basis of race.
The employer is a home care agency that hires out aides to provide personal, in-home assistance to elderly, disabled, and ill persons. It has a mostly White clientele. Many of its clients have expressed a desire for White home care aides. Gladys, an African American aide at another agency, applies for a job opening with the employer because it pays more than her current job. She is well qualified and has received excellent performance reviews in her current position.
The employer wants to hire Gladys but ultimately decides not to because it believes its clientele would not be comfortable with an African American aide. The employer has violated Title VII because customer preference is not a defense to race discrimination. Sources of information can include witness statements, including consideration of their credibility; documents; direct observation; and statistical evidence such as EEO-1 data, among others. I, Sec.
Similarly, the credibility of the explanation can be called into question if it is unduly vague, 60 appears to be an after-the-fact explanation, or appears otherwise fabricated e. Alex, of Hispanic descent, has been progressively promoted and now holds a mid-level management position in a public relations firm in which he is responsible for several important accounts.
The clients and the employer are happy with his performance. A senior-level management position that involves more responsibility opens up. The employer desires someone with demonstrated creativity to fill it.
Alex applies for the job, but is not selected. Instead, the employer chooses Jennifer, a White female who, while qualified, has slightly less seniority and relevant experience.
The investigation reveals that while Jennifer has somewhat less experience than Alex, she has displayed more creativity than Alex by developing a new way to reach the youth market, consistently suggesting improvements on the design of marketing materials, and implementing a new system for quickly disseminating time-sensitive documents.
Alex, on the other hand, is seen as competent, hard working, and professional, but not as someone who displays quite as much creativity as wanted for the new job. There is no evidence of discrimination other than comparative qualifications. To the extent possible, the statistical analysis must include nondiscriminatory factors that reasonably might be said to account for any disparity.
In a hiring case, for example, relevant factors would include the racial makeup and qualifications e. EEOC staff should contact headquarters experts for assistance in statistical cases.
A finding of discrimination in the form of disparate impact does not depend on the existence of an unlawful motive. The statute exempts certain policies or practices from disparate impact challenges — most notably, seniority systems.
Proving unlawful disparate impact under Title VII first requires a statistical demonstration that the employer has an employment policy or practice that causes a significant disparate impact based on race or another protected trait.
Once a policy or practice has been proven to cause a significant impact, the employer has the burden of demonstrating that the policy or practice is job related for the position in question and consistent with business necessity. A pizza delivery restaurant has an inflexible no-beard policy. The restaurant fires Jamal, one of its African American drivers, for failing to remain clean shaven.
The severity of the condition varies, but many of those who suffer from PFB effectively cannot shave at all. If Jamal or EEOC were to challenge the no-beard policy as unlawful because it has a significant negative impact on Blacks, the employer would have to prove the policy is job-related and consistent with business necessity.
Who ultimately receives employment opportunities is highly dependent on how and where the employer looks for candidates. Accordingly, Title VII forbids not only recruitment practices that purposefully discriminate on the basis of race but also practices that disproportionately limit employment opportunities based on race and are not related to job requirements or business needs. Title VII specifically forbids job advertisements based on race, color, and other protected traits.
While word-of-mouth recruiting in a racially diverse workforce can be an effective way to promote diversity, the same method of recruiting in a non-diverse workforce is a barrier to equal employment opportunity if it does not create applicant pools that reflect the diversity in the qualified labor market. Title VII is violated by recruiting persons only from largely homogeneous sources if the recruitment practice has a racial purpose, or if it has a significant racial impact and cannot be justified as job related and consistent with business necessity.
For example, Title VII might be violated if a municipal employer with an overwhelmingly White population and workforce abuts a major city with an overwhelmingly Black population, but the municipality only hires its own residents and refuses to advertise its jobs in newspapers that circulate in the abutting major city.
The process of screening or culling recruits presents another opportunity for discrimination. Race obviously cannot be used as a screening criterion.
Nor may employers use a screening criterion that has a significantly disparate racial impact unless it is proven to be job related and consistent with business necessity.
An executive in a large company asks a recruiter in the human resources department to find her a new secretary. The executive tells the recruiter that in addition to excellent secretarial skills, she wants only to interview candidates who will relate well with high level executives inside and outside the company. This violates Title VII. This means that employers cannot treat persons of different races differently in the hiring or promotion process.
Nor may employers use selection criteria that have a significant discriminatory effect without being able to prove that the criteria are job-related and consistent with business necessity. When making hiring and promotion decisions, employers must apply the same selection criteria to persons of different races, and apply them in the same way, giving the same weight to each criterion for each person. The reasons given for selection decisions should be credible and supported by the evidence.
The following are examples. Malcolm, an Asian American, applies for an executive position with the employer, a health maintenance organization. Malcolm is well qualified; he has a B. The employer interviewed Malcolm and eight other candidates. Malcolm was one of two finalists brought back for a final round of interviews. Kai, a Native American, files a charge after he applied for a promotion, was interviewed, and was not selected.
The investigation reveals that, based on objective qualifications, Kai was deemed one of the top candidates but the job ended up going to Ted, a similarly qualified White candidate from outside the company. However, the investigation reveals that although Ted did work for another company in the industry, it was not really a competitor.
The witnesses also tell the investigator that, until now, the company practice had been to prefer qualified internal candidates over similarly qualified external candidates. There is reasonable cause to believe that Kai was discriminated against based on his race or national origin. Rita, an African American, has worked seven years as a Program Analyst for a federal agency. She consistently has received outstanding performance evaluations. Each of the last four years, Rita has applied for openings for jobs in her office in a higher grade.
The agency has rejected Rita each time. After the fourth rejection, Rita initiated EEO counseling, and then a formal complaint, because she believed she had been repeatedly discriminated against. She stated that four White employees were promoted over her, each time for a different reason. The investigation reveals that the agency actually did apply the same promotion criteria during each selection.
Importantly, however, witness interviews and documentary evidence e. In other words, it appears that when a job-related qualification favored Rita it was deemed less important than when a qualification favored a White candidate. Moreover, statistics reveal that Whites are promoted more often than similarly qualified African Americans.
There is reasonable cause to believe Rita was discriminated against based on her race. Title VII provides that, if a selection standard is shown to have a significant impact based on race, the employer must demonstrate that the standard is job-related and consistent with business necessity.
Educational requirements obviously may be important for certain jobs. For example, graduation from medical school is required to practice medicine. However, employers often impose educational requirements out of their own sense of desirable qualifications. Such requirements may run afoul of Title VII if they have a disparate impact and exceed what is needed to perform the job. Diplomas and tests are useful servants, but Congress has mandated the commonsense proposition that they are not to become masters of reality.
She took the job right after college and now is departing after three years to go to graduate school. Sylvia, an African American, applies for the job. Sylvia is a successful graduate of the local business institute, and has spent the last five years working as a secretary for a regional bank, rising a year ago to become the Executive Secretary in one of its major departments.
Statistical evidence shows that in the local labor market African Americans and Hispanics in the pool of administrative and clerical workers are significantly less likely to have college degrees than Whites. Most importantly, the employer presents no evidence that a college degree is more predictive of, or correlated with, job performance than a degree from a business institute plus significant relevant experience i.
The evidence establishes that the employer has violated Title VII because the college-degree requirement screens out African Americans and Hispanics to a significant degree but it has not been demonstrated to be job related and consistent with business necessity.
Employment testing is another practice to which the disparate impact principle frequently is applied. Title VII also explicitly prohibits employers from race-norming employment tests, i. This does not mean an employer cannot change the way it grades employment tests. For example, an employer may go from a straight ranking system to a grade banding system i. Of course, it is unlawful to disqualify a person of one race for having a conviction or arrest record while not disqualifying a person of another race with a similar record.
For example, an employer cannot reject Black applicants who have conviction records when it does not reject similarly situated White applicants. In addition to avoiding disparate treatment in rejecting persons based on conviction or arrest records, upon a showing of disparate impact, employers also must be able to justify such criteria as job related and consistent with business necessity. Generally, employers will be able to justify their decision when the conduct that was the basis of the conviction is related to the position, or if the conduct was particularly egregious.
Arrest records are treated slightly differently. While a conviction record constitutes reliable evidence that a person engaged in the conduct alleged i. In order to open the American workplace to historically excluded groups, some employers use diversity and affirmative action programs.
Diversity and affirmative action are related concepts, but the terms have different origins and legal connotations. Workforce diversity is a business management concept under which employers voluntarily promote an inclusive workplace. Title VII permits diversity efforts designed to open up opportunities to everyone. For example, if an employer notices that African Americans are not applying for jobs in the numbers that would be expected given their availability in the labor force, the employer could adopt strategies to expand the applicant pool of qualified African Americans such as recruiting at schools with high African American enrollment.
Bollinger that attaining a diverse student body can justify considering race as a factor in specific admissions decisions at colleges and universities without violating the Equal Protection Clause or Title VI of the Civil Rights Act of The Commission encourages voluntary affirmative action and diversity efforts to improve opportunities for racial minorities in order to carry out the Congressional intent embodied in Title VII.
Failing to provide a work environment free of racial harassment is a form of discrimination under Title VII. Liability can result from the conduct of a supervisor, coworkers, or non-employees such as customers or business partners over whom the employer has control.
A hostile environment can be comprised of various types of conduct. While there is not an exhaustive list, examples include offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. To determine if a work environment is hostile, all of the circumstances should be considered.
Incidents of racial harassment directed at other employees in addition to the charging party are relevant to a showing of hostile work environment. The conduct must be unwelcome in the sense that the alleged victim did not solicit or incite the conduct and regarded it as undesirable or offensive. When the conduct involves mistreatment or is racially derogatory in nature, unwelcomeness usually is not an issue, even when the alleged harasser and victim are of the same race.
The facts in such cases require careful scrutiny to determine whether the alleged victim was, in fact, a willing participant. To violate Title VII, racially abusive conduct does not have to be so egregious that it causes economic or psychological injury. Harassment must be analyzed on a case-by-case basis, by looking at all the circumstances and the context.
Relevant factors in evaluating whether racial harassment creates a sufficiently hostile work environment may include any of the following no single factor is determinative :.
The more severe the harassment, the less pervasive it needs to be, and vice versa. Accordingly, unless the harassment is quite severe, a single incident or isolated incidents of offensive racial conduct or remarks generally do not create an abusive working environment. Tim, an African American, is an employee at an auto parts manufacturing plant. Miyuki, of Japanese descent, gets a job as a clerk in a large general merchandise store.
After her first day on the job, a small group of young male coworkers starts making fun of her when they see her by slanting their eyes, or performing Karate chops in the air, or intentionally mispronouncing her name. This occurs many times during her first month on the job.
Steven, an African American, is a librarian at a public library. Steven approaches his supervisor, White, with the idea of creating a section in the stacks devoted to books of interest particularly to African Americans, similar to those he has seen in major bookstore chains. This statement alone, while racially offensive, does not constitute severe or pervasive racial harassment, absent more frequent or egregious incidents. Patrick, Caucasian, is a new employee in a company owned by an African American.
Whiteboys like you might get all the breaks in your world, but not here. For example, the manager would assign Patrick the majority of the uninteresting and routine work, and would set artificial and unrealistic deadlines. The manager would yell at Patrick when he made a mistake due to having to rush. The manager also frequently failed to inform Patrick of important meetings, or ignored Patrick when he spoke at meetings he did attend.
The totality of the evidence supports the conclusion that Patrick suffered from race-based harassment sufficient to alter his working conditions. Kyra is a newly hired programer at a computer software development company. She is the first African American, and the first woman, to be hired by the company. All of the other employees are White or Asian American men.
During her first few weeks on the job, several employees made insensitive comments to her. Employers and employees each have an essential role in preventing race harassment. When employers and employees both take appropriate steps to prevent and correct harassment, offensive conduct generally will be corrected before escalating to the point of violating Title VII. The rules for liability differ depending on whether the harasser is a supervisor.
Thus, any time discrimination by a supervisor results in the victim suffering a tangible employment action, such as being fired or quitting in response to intolerable harassment accompanied by an official company act , demoted, not promoted, or docked in pay, the employer is automatically liable, and there are no defenses available to the employer.
In this situation, the employer avoids liability if it proves the elements of the following affirmative defense:. Carla, an Asian American, claims that she was subjected to frequent offensive comments based on race and sex by her first-level supervisor.
The employer reprimanded the supervisor and transferred him to another division. The employer is not liable for the harassment because it took reasonable preventative and corrective measures and Carla unreasonably failed to complain about the harassment. For the unlawful harassing conduct of non-supervisory employees, or non-employees over whom the employer has control e.
Victims of harassment, in turn, should make sure management knows about the harassing conduct. During his visits, Charles often yells derogatory comments about Blacks and Latinos at Cheryl, a Black employee of Puerto Rican national origin, and has even pushed and tripped her on a few occasions. Cheryl complains about the conduct to a manager, and is told that XYZ cannot take any action against Charles because he is not a resident.
Even if a company works hard to recruit and hire in a way that provides equal opportunity, and even if it maintains a harassment-free workplace, it still must ensure that race is not otherwise a barrier to employee success.
Employers cannot permit race bias to affect work assignments, performance measurements, pay, training, mentoring or networking, discipline, or any other term, condition, or privilege of employment. Work assignments must be distributed in a nondiscriminatory manner. This means that race cannot be a factor in determining the amount of work a person receives, or in determining who gets the more, or less, desirable assignments. After receiving an advanced business degree, Mary was hired as an entry-level associate at a management and technology consulting firm.
She was the only Black associate among the new entry-level associates. Initially, as with other new associates, Mary received routine assignments, and consistently met the expectations of the assigning managers.
But as other associates became increasingly busy with complex, long-term projects, Mary noticed that she continued to receive projects that were short-term and routine. At her six-month performance review, the firm told Mary that her performance was good, and she received a bonus on par with other associates. She told the reviewers that she would like to receive more demanding work. After a year at the firm, it was clear that her contemporaries had much higher standing in the firm than she did, as reflected in the low pay raise she received as compared to others.
Mary opted to seek a fresh start with another firm. Soon after, Mary filed a charge against the employer alleging race discrimination in the terms and conditions of her employment. Thus, the evidence suggests that race bias affected how managers assigned Mary work, which in turn stalled her career development and affected her pay.
Performance evaluations frequently serve as the basis for numerous other employment decisions, such as pay, promotions, and terminations. They should be unaffected by race bias. Daniel is a customer service representative, and the only African American in his unit.
Until recently he has received uniformly stellar performance ratings, received performance awards, and earned a good reputation among his customers and colleagues. Things began to change, however, when a new supervisor was assigned a year ago to manage his unit. He files a charge alleging race discrimination. The point of this course is to further your understanding of the legal concept of discrimination in all of its forms — direct, indirect, systemic and adverse effects.
The concepts of this course are conveyed through three different scenarios that are introduced to participants at the beginning of the course. Participants will apply the concepts as they learn them by using these scenarios in various interactive exercises.
At the end of this course, participants will be able to understand and perform workplace investigations into complaints and incidents of discrimination. Med, is the principal and founder of WG Resolutions. Some agencies may administer some of the program components and responsibilities in other program areas, such as Human Resources, Health and Safety, or Training. However, it is the responsibility of the EEO Officer to monitor the effectiveness of the programs to prevent discrimination and ensure compliance with state and federal statutes, regulations, and reporting requirements.
The State of California, as an employer, has an affirmative responsibility to prevent discriminatory conduct. Developing non-discrimination policies is the first step in prevention. The EEO Officer is responsible for ensuring that applicable written policies and procedures are developed, implemented and enforced for the prevention of discrimination, including harassment and retaliation, in the workplace.
Written policies shall include a statement committing to equal employment opportunity and prohibiting employees, supervisors, and third parties from engaging in conduct that is prohibited under the Fair Employment and Housing Act FEHA.
Employers have an obligation under both federal and state laws to conduct a prompt, thorough and objective investigation when an employee files a discrimination complaint. The EEO Officer is responsible for ensuring prompt and effective investigations of discrimination complaints. Each state agency shall create a complaint process to ensure complaints are addressed in a timely manner. The process is to be consistent with state laws and rules, and provide information regarding filing appeals of agency decisions on these complaints and alternative filing options.
Events forming the basis of a complaint must have occurred no more than one year prior to the date that the complaint is filed with the agency. Sexual harassment is a form of discrimination. FEHA states that harassment based on sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexual harassment is defined as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature, and does not have to be motivated by sexual desire.
State agencies are required to take all reasonable steps to prevent harassment from occurring. To prevent and combat sexual harassment, each agency is required by law 10 to provide training and education on sexual harassment prevention and to outline supervisory responsibilities. Each agency shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment prevention to all supervisory employees within six months of starting their supervisory position, and every two years thereafter.
This training is intended to establish a minimum threshold. Agencies may and provide longer, more frequent training, or more elaborate training on other forms of unlawful discrimination or policy violations in order to meet its obligations to prevent and correct harassment and discrimination.
As part of an effective equal employment opportunity program, each EEO Officer shall develop, update annually, and implement an equal opportunity plan 13 which shall, at the minimum, identify the areas of significant underutilization of specific groups based on race, ethnicity, and gender.
Each agency must provide an analysis of their workforce composition, upward mobility program, and representation of persons with disabilities. Workforce composition shall include an explanation and specific actions for removing any non-job-related employment barriers.
The Upward Mobility program shall include annual agency goals that include both the number of employees expected to progress from positions in low-paying occupational groups to entry-level technical, professional, and administrative positions, and also the timeframe within which this progress shall occur.
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