Avoiding Discrimination Based on Race and National Origin

You may not make job decisions based on an employee's race, ethnicity, or national origin.

Employment discrimination on the basis or race or national origin still happens more often than anyone wants to believe -- and it's against the law. It exacts a very high price, both from its victims and from the companies where it occurs. Recent lawsuits prove the point: Large companies have paid millions of dollars to compensate victims of race and national origin discrimination and to pay for their own complicity in encouraging or allowing a discriminatory atmosphere in the workplace.

What Is Race Discrimination?

An employer commits racial discrimination when it makes job decisions on the basis of race, or when it adopts neutral job policies that disproportionately affect members of a particular race.

Federal and state laws forbid race discrimination in every aspect of the employment relationship, including hiring, firing, promotions, compensation, job training, or any other term or condition of employment. For example, an employer discriminates when it refuses to hire Latinos, promotes only white employees to supervisory positions, requires only African-American job applicants to take a drug test, or refuses to allow Asian-American employees to deal with customers. An employer that discriminates on the basis of physical characteristics associated with a particular race -- such as hair texture or color, skin color, or facial features -- also commits race discrimination.

Even employment policies or criteria that seem neutral may be discriminatory if they have a disproportionate impact on members of a particular race. For example, a height requirement may screen out disproportionate numbers of Asian-American and Latino job applicants. Or an employment policy requiring men to be clean-shaven may discriminate against African-American men, who are more likely to suffer from Pseudofolliculitis barbae (a painful skin condition caused and exacerbated by shaving).

Rules or policies that have a disproportionate impact on people of a certain race will pass legal muster only if you can show that there is a legitimate and important work reason for the policy. For example, a height requirement might be legitimate if you can show that an employee must be at least a certain height to operate a particular type of machinery.

What Is National Origin Discrimination?

An employer discriminates on the basis of national origin when it makes employment decisions based on a person's ancestry, birthplace, or culture, or on linguistic characteristics or surnames associated with a particular ethnic group. For example, an employer who refuses to hire anyone with a Hispanic last name discriminates, as does an employer who won't allow anyone with an accent to work with the public.

Language Rules

An employer may be able to prohibit on-duty employees from speaking any language other than English if it can show that the rule is necessary for business reasons. If you impose an English-only rule, you must tell employees when they have to speak English (for example, whenever customers are present) and the consequences of breaking the rule. And, if an employee challenges your English-only rule, you will have to defend its scope: a rule that forbids workers from ever speaking another language, even during breaks or when a customer who speaks that language is present, is probably too broad.

Accent Rules

Because an employee's accent is often associated with his or her national origin, employers must tread carefully when making employment decisions based on accent. An employer may decide not to hire or promote an employee to a position that requires clear oral communication in English if the employee's accent substantially affects his or her ability to communicate clearly. However, if the employee's accent does not impair his or her ability to be understood, you may not make job decisions on that basis -- for example, you cannot simply adopt a blanket rule that employees who speak accented English may not work in customer service positions.

Harassment Is Illegal, Too

Harassment on the basis of race and national origin is also prohibited. Harassment is any conduct based on a person's race or national origin that creates an intimidating, hostile, or offensive work environment or interferes with the person's work performance. Harassing conduct might include racial slurs, jokes about a particular ethnic group, comments or questions about a person's cultural habits, or physical acts of particular significance to a certain racial or ethnic group -- for example, hanging a noose in an African-American employee's locker.

Companies Are Paying the Price

In recent years, companies have been hit with huge verdicts -- or have agreed to pay massive settlements -- to employees who have been discriminated against or harassed on the basis of race or national origin. For example:

  • The EEOC announced a $50 million settlement of a race and sex discrimination lawsuit against the clothing retail company Abercrombie & Fitch. Among the allegations were a claim that the clothier refused to hire female and nonwhite applicants because they did not fit the image or "look" the company was trying to project in the marketplace.
  • Consolidated Freightways Corporation of Delaware agreed to pay $2.75 million to settle a racial harassment lawsuit filed by the Equal Employment Opportunity Commission (EEOC). Twelve African-American employees alleged that they were subjected to racial intimidation, threats, assault, racist graffiti, and property damage, among other things.
  • Coca-Cola settled a class action race discrimination lawsuit for $192.5 million. African-American employees said that Coke imposed a racial "glass ceiling" by discriminating against them in pay and promotions. Of the total settlement, $36 million was earmarked for monitoring the company's employment practices to make sure that the discrimination stopped.
  • Commonwealth Edison Company agreed to pay $2.5 million to settle a lawsuit brought by a group of Latino employees alleging discrimination based on national origin. The employees charged that the company failed to promote them to middle management positions.

For detailed information on race and national origin discrimination -- and strategies on preventing these problems at your company -- pick up a copy of The Essential Guide to Handling Workplace Harassment and Discrimination, by Deborah C. England (Nolo).

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