EEOC Highlights New Types of Race Discrimination

By Fiona W. Ong - Shawe & Rosenthal LLP

November 2, 2017

I was recently perusing the latest edition of the Equal Employment Opportunity Commission’s federal sector Digest of Equal Employment Opportunity Law (because, yes, I am that much of an employment law nerd) and came across an interesting article, “Race Discrimination in the 21st Century Workplace,” by EEOC attorney Paula Rene Bruner. The article specifically “attempt[s] to highlight newer types of race discrimination that have emerged in the 21st century federal, public, and private employment sectors.”

Given the EEOC’s typically aggressive attempts to expand the boundaries of antidiscrimination laws (about which I have previously blogged, for example, in “EEOC Expands the ADA!” and “EEOC Says Sexual Orientation Is Protected Under Title VII!!“), I was very curious to see what “new” forms of race discrimination the EEOC has recognized. To summarize, they are as follows:

• Associational discrimination – which involves discrimination against an individual because of his or her association with someone of a particular race, such as a White employee who is married to an African American or has a multi-racial child or socializes with those of another race. The EEOC offers several case examples, including: a Black manager who refused to promote a Black employee due to her association with White managers, in part to show the White managers who was in charge; a supervisor’s discrimination and harassment of an employee due to his marriage to a Native American and other relationships with tribes; and the firing of White manager who hired a Black employee in contravention of the owner’s desire to maintain a “certain look” in the office.

• Biracial discrimination – in which an individual is targeted because of his/her mixed race.

• Intersectional discrimination – which means discrimination on the basis of the intersection of two or more protected characteristics, like race and sex, or race and disability. For example, an employer could discrimination against African American women, although it does not discrimination against White women or African American men.

• Same race discrimination – involving discrimination by members of the same race on the basis of that race. The article quotes Justice Thurgood Marshall as follows:”[s]ocial scientists agree that members of minority groups frequently respond to discrimination and prejudice by attempting to disassociate themselves from the group, even to the point of adopting the majority’s negative attitudes towards the minority.”

• Perceived race discrimination – which involves discrimination against an individual because of the belief that he/she is a member of a particular race, regardless of how that individual identifies his/her race. The EEOC recognizes this claim as a violation of Title VII, even if the perception or belief is wrong.

The EEOC is quite open about pursuing “new approaches” to discrimination claims and, certainly in light of this article, employers should be prepared to face creative arguments from the EEOC in this area.