The Color of Discrimination

Unlawful discrimination flows from adverse action against a member of a protected class.  Based on Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act (the three federal laws under which most discrimination charges and lawsuts are filed), it’s common to list the protected classes as:  race, sex, national origin, religion, age, and disability.  This list is incomplete, however.  There’s a protected class named in Title VII that’s often overlooked.

That protected class is “color.”  It’s overlooked because it can fit within the protected class of race or national origin–but not always.

The presidential campaign gives us the basis for examining the protected class of color, because Barack Obama is the product of a black father and a white mother.  He was pretty much raised by white grandparents.  His skin isn’t so light that he could be Coleman Silk in Philip Roth’s The Human Stain, but it’s light enough to indicate that he’s biracial.  Given Obama’s lineage and the role of whites in his upbringing, it’s puzzling (or would be in a perfect world) why whites aren’t claiming him just as much as blacks are.

In fact, the prevailing point of view from those who doubt that Obama can be elected is that he’ll lose because of his race.  From an employment law perspective, however, it’s not his race; it’s his color.  He’s not dark black, but his shade of blackness–his color–will cause enough voters to choose a candidate who’s white.  That’s the argument, anyway.

While employment laws don’t apply to the presidential election, they do apply to your workplace.  And there are quite a number of court cases which say that workplace discrimination based on color is just as unlawful as that based on race:  Rogeau v. Louisiana Department of Social Services, 2008 WL 818961; Miller v. Bed, Bath & Beyond, Inc., 185 F. Supp. 2d 1253; Santiago v. Stryker Corp., 10 F. Supp. 2d 93; Hansborough v. City of Elkhart Parks and Recreation Department, 802 F. Supp. 199; Franchesci v. Hyatt Corp., 782 F. Supp. 712; Walker v. Secretary of the Treasury, 713 F. Supp. 403; Felix v. Marquez, 1981 WL 275; Vigil v. City and County of Denver, 1977 WL 41.  Although this isn’t an all-encompassing list of cases, it’s obvious that color discrimination has been recognized as one of the protected classes.

These cases involve allegations that lighter skinned employees were given preference over darker skinned employees; that darker skinned employees were given preference over lighter skinned employees; and that white employees were given preference over biracial employees.  If such allegations can be proved, an employer is guilty of color discrimination. 

It’s possible that some citizens may vote against Obama because of the color of his skin.  If you make an employment decision on that basis, however, you’ll violate the law.  The presidential election is a good reminder that color is a protected class.