Remarks of EEOC, Attorney Corbett L. Anderson

Commission Meeting on Race and Color Discrimination of April 19, 2006, Washington D.C.

Good morning Chair Dominguez and commissioners. I am honored to be here speaking to you today. I'm even more honored to have been one of the staffers on this important project. Although our laws cover discrimination on many bases – and all of them deserve nothing less than our full attention – in working on this project, we never forgot that race and color discrimination is unique – the subject of slavery, a civil war, three constitutional amendments and numerous constitutional crises, several landmark supreme court decisions, and a movement made up of countless regular people who put everything on the line in pursuit of freedom.

It is that movement that produced title VII of the civil rights act of 1964 and produced this agency a little over 40 years ago. Yet forty years later, race still influences the life experiences and life opportunities of many people. Title VII essentially says that, whatever influence a person's race has in society generally, race and color should not affect a person's employment opportunities. EEOC's investigators and litigators in the field are on the front lines everyday helping to make this true. The challenge – and hope – of the new compliance manual section is to serve them toward that end.

Under the leadership of Chair Dominguez, and the thoughtful guidance of each of you and your personal staffs, and many others in the agency, we were challenged to draft a compliance manual section that is:

• Comprehensive, yet reasonably concise;
• Legally accurate, yet useful to lawyers and non-lawyers alike;
• A resource for EEOC staff, yet valuable to employees, employers, and other members of the public;
• Forward-leaning and forceful, yet measured in tone;
• Built on the successes of the past, yet reflective of current-day issues and the modern workplace;
• And last, but certainly not least, something that would ATTRACT BIPARTISAN consensus

A piece of cake, right?!

The project started over five years ago. We solicited from EEOC field offices examples of interesting and compelling charges of race and color discrimination in their charge inventories. All of the submissions were helpful, and several of them inspired examples in the section. We also spoke informally with members of the civil rights bar; with civil rights advocacy groups; and with employer representatives. We did background research via the popular press, academic sources, and caselaw. And of course we referred to the commission's own previous work in this area.

The first half of the manual section focuses generally on coverage issues and the legal standards for determining whether an employment decision was discriminatory. With respect to coverage, the manual section explains that the law covers discrimination:

• Based on racial ancestry;
• Based on physical, cultural or other personal characteristics associated with race (e.g., hair, names, dress);
• Based on association with persons of a certain race (e.g., by marriage, or by having a biracial child);
• As well as discrimination based on race plus some other characteristic, or the intersection of race and another protected trait (e.g., race and sex)

With respect to the legal standards for evaluating employment decisions, the manual section emphasizes that title VII prohibits all types of racially motivated decisions – whether driven by animus, by stereotypes and unconscious bias, or by misguided business logic – such as race-matching sales territories, or yielding to customers' racial preferences. Also, due to the subtle nature of modern-day discrimination, the manual section points out that all the circumstantial evidence must be examined carefully. In addition, the manual section introduces the disparate impact principle – that practices fair in form might be discriminatory in operation nonetheless.

The second half of the manual section focuses more directly on how the law applies to various employer practices, and provides what we hope are useful examples. The various employer practices are organized under headings reflecting two broad goals of title VII: equal access to jobs, and equal opportunity for job success.

The discussion of equal access to jobs emphasizes the importance of applying hiring and promotion standards consistently, and the danger of using certain recruitment practices and selection standards that might have an unlawful disparate impact – such as word-of-mouth recruitment, employment tests, and arrest & conviction records. The section reminds readers that a selection device that significantly screens out a racial group must be job related and consistent with business necessity, and should be the least discriminatory alternative available.

Of course, just getting a job is not enough. So the manual section also explains that all persons should have an equal chance to succeed in their jobs and their careers without regard to their race or color. This means not only that harassment can't be tolerated; it also means it is important to look at issues such as:

• Who gets the good work assignments that provide the experience needed to advance?
• Is performance measured equally or is it tainted by bias?
• Who gets the kind of constructive feedback and on-the-job training that says to the employee: we value you – we want to see you do better – and we're going to help you?

The manual section concludes by listing examples of "best practices" for employers. Starting in the late 1990's, the commission has increasingly stressed its unique role in proactive prevention – the idea being to provide employers with technical assistance and training to help them to avoid discrimination in the first place. The compliance manual section on race and color continues the EEOC's emphasis on proactive prevention.

In conclusion, I again want to thank the commission for the opportunity to be a presenter today, and for the tremendous honor to work on such an important project. More importantly, I want to thank you as a citizen. The commission only truly speaks through its regulations and its policy guidance. I thank you for speaking loud and clear today to reaffirm that race and color discrimination in employment is wrong, it's illegal, and eliminating it in all its forms remains a top priority of the agency and the Nation.

This page was last modified on June 12, 2006.