Is discrimination based on skin color illegal?

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Question:

I work at a restaurant chain. I’m African American, and I have dark skin. The restaurant has plenty of African American employees, but it seems like the employees with lighter skin color get all of the jobs that deal with customers, like seating people, waiting tables, and ringing up checks. Employees with darker skin are typically stuck bussing tables, washing dishes, restocking, and doing other work behind the scenes. Is this discrimination, even though the restaurant hires lots of African Americans? 

 

Answer:

Discrimination based on color – skin pigment, complexion, shade, or lightness or darkness – is illegal. Color is a separate protected category under Title VII, the primary federal law that prohibits workplace discrimination.

Discrimination based on race and color often overlap. For example, a manager who holds a bias against people who are multiracial may refuse to hire African American employees with lighter skin. Or, a manager might refuse to promote anyone with darker skin color, which would have the effect of discriminating based on race.

However, color discrimination (sometimes called “colorism”) can also exist separately. As your situation shows, an employer might differentiate among employees of the same race based on skin color. Such an employer is not discriminating based on race, but may be guilty of color discrimination. Similarly, a manager may discriminate against an employee of the same race, based on skin color. Although the ultimate basis for these types of prejudice is likely racial in origin, the factor on which the manager is making decisions is color, not race.

Discrimination based on skin color often occurs when lighter-skinned employees are favored over employees with darker skin, like the situation you’ve described. In the past, employers have tried to argue that customer preference dictates their choices in which employees serve the public. (This argument was made regarding female flight attendants decades ago: Airlines argued that their mostly male passengers simply would not feel comfortable getting their drinks and other in-flight comforts from a man.) However, courts have clearly stated that an employer may not act in a biased way to cater to customer prejudice.

Of course, your employer’s actions are discriminatory only if its staffing choices really are based on color. For example, if everyone who has been hired to wait tables has more experience that those who have been put in backroom positions, the issue of skin color may be coincidental. However, if some of the darker-skinned bussers have more experience waiting tables than some of the lighter-skinned wait staff, color may well be the deciding factor.

If you believe that your employer is discriminating based on color, consider filing a charge of discrimination at your local office of the EEOC or your state’s antidiscrimination agency.  An experienced employment lawyer in your area can help you figure out whether the facts are sufficiently on your side to warrant the time and trouble it will take to mount a legal challenge.

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