Question:

I am a brown-complexioned Latina, working in a retail store. I recently asked my manager if I could transfer to another department, and she discouraged me by telling me that the other department is better for “lighter skinned” workers. There are no Latin American workers in that department. I would not get paid more in the other department, but I think I would enjoy the work more. I think this is unfair, but I am afraid to ask again. Can my employer make a decision based on my skin color or race?

Answer:

Generally, no. Both California and federal law prohibit discrimination in employment based on many factors, including race, color, and national origin. Title VII of the Civil Rights Act of 1964 was written very broadly to cover race or color discrimination against anyone. California’s Fair Employment and Housing Act also prohibits race, color or national origin discrimination in hiring, training, or in the terms, conditions, or privileges of employment.

Charges of race discrimination are the most common charge filed with the Equal Employment Opportunity Commission (EEOC), which is the federal agency that enforces Title VII. Of the approximately 75,400 charges of discrimination filed with EEOC field offices nationwide during the 2005 fiscal year, over 35 % alleged race-based discrimination.

The law prohibits racial discrimination against a person based on several factors, including:

  • Ancestry: Racial or ethnic ancestry. There can be considerable overlap between “race” and “national origin,” but they are not identical. For example, discrimination against a Chinese American might be targeted at his or her Asian ancestry and not his or her Chinese national origin. In that case, he or she would have a claim of discrimination based on race, not national origin.
  • Physical Characteristics: Employment discrimination based on a person’s physical characteristics associated with race, such as a person’s color, hair, facial features, height and weight is unlawful.
  • Culture: Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech. For example, an employment decision based on a person having a so-called “Black accent,” or “sounding White,” violates Title VII if the accent or manner of speech does not materially interfere with the ability to perform job duties.
  • Perception: Discrimination based on the perception that an individual is a member of a particular racial group is unlawful. Discrimination against an individual based on a perception of his or her race violates Title VII even if that perception is wrong.
  • Association With Someone Of A Particular Race: For example, it is unlawful to discriminate against a person because he or she is married to a person of a different race, or has a multiracial child, or because he or she maintains friendships or otherwise associates with persons of a certain race, or persons perceived to be of a certain race.
  • “Reverse” Race Discrimination: Title VII prohibits race discrimination against all persons, including Caucasians.

Discrimination based on “color” is listed separately in the federal and California anti-discrimination statutes. The law does not define “color,” but the EEOC and the courts interpret “color” to mean pigmentation, complexion, or skin shade or tone. Color discrimination may occur when a person is discriminated against based on the lightness, darkness, or other color characteristic of the person. Even though race and color clearly overlap, they are not the same. Color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity.

National origin is also listed as a separate protected category under the law. The law prohibits the denial of equal employment opportunity because of the place of origin of an individual or his or her ancestors, or because an individual has the physical, cultural, or linguistic characteristics of a national origin group.

Multiple protected bases of discrimination can be raised by the same set of facts, because negative stereotypes and biases may be directed at more than one protected basis at a time, and because certain protected bases overlap considerably. If any prohibited factors led to an adverse employment action, alone or combined, the employer may be liable for unlawful discrimication. In the facts you have described, your employer may be violating the law if your skin color, race, or national origin form the basis for employment decisions. For more information, you may contact the Equal Employment Opportunity Commission at www.eeoc.gov, or the California Department of Fair Employment and Housing at www.dfeh.ca.gov.

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