The Difference Between Race And Color Under Anti-Discrimination Law

Introduction

Some forms of employee discrimination are intended and entail unequal treatment of particular groups of employees. Other forms of employee discrimination are unintended but have unequal, or disparate, impacts on particular groups of employees (Figart, 1997). Neoclassical economics theorists define employment discrimination as the dissimilar treatment, or management, of two employees who are similarly qualified based on considerations of factors such as their ages, mental or physical disabilities, genders, nationalities, religious persuasions, skin colors, and racial extractions (Darity & Mason, 1998). The second section of this paper examines whether there are legal differences between employment discrimination hinged on race and employment discrimination based on skin pigmentation, or color.

Differences between Race and Color under the Anti-Discrimination Law

Bases for Discrimination in Employment

Various bases for employee discrimination are spelt out clearly in the Civil Rights Act’s Title VII.  The law was enacted in 1964. Title VII is applicable to employers who have at least 15 employees. In the meaning of Title VII, an employer can be an individual, a state government, a local government or authority, the US federal government, an employment agency or a labor organization (CSOSA, 2015).

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Title VII safeguards persons from being discriminated against by employers based on considerations of their colors and racial extractions, nationalities, religious orientations, and sex. As well, Title VII safeguards persons from being discriminated against by employers based on considerations their ages, disabilities, pregnancy statuses, and sexual orientations. Besides, it bars employers from engaging in discriminating practices against particular employees with respect to reprisals and compensation.

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Based on Title VII, it is illegal to show favoritism towards any candidate seeking employment or employee owing to her or his color or race. The favoritism and the corresponding discrimination are illegal with respect to employee hiring, compensation, employment privilege, condition, job training, promotion, and termination. Title VII outlaws the making of decisions by employers based on assumptions, as well as stereotypes, about the performance, traits, or abilities of employees from particular racial extractions. Besides, Title VII outlaws on purpose discrimination along with neutral employment policies that unduly exclude employees from minority populations on considerations that are not linked to their jobs according to CSOSA (2015). In the following subsection, race is examined as a foundation for discrimination.

Race as a Foundation for Discrimination

Race is essentially a social, or societal, construct. The persons who are deemed socially to belong to one race share distinctive and similar physical attributes according to Cartmill (1998). The term “race” is utilized commonly in referring to sharing a language. As well, it is used in denoting national affiliations. From around mid-17th century, the term has been utilized largely in referring to phenotypical, or physical, attributes. Notably, from the early 19th century, the term has been used in to deliver taxonomic or biological meanings by denoting particular human groupings with characteristic phenotypes (Keita, Kittles, Royal, Bonney, Furbert-Harris, Dunston & Rotimi, 2004).

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Racial groupings and societal conceptions keep on evolving and so are the folk taxonomies used in defining vital types of persons in accordance with socially perceived attributes. Biological essentialism is now widely considered obsolete by scientists, who are averse to racial justifications for shared differentiation in behavioral, as well as physical, attributes. Keita, Kittles, Royal, Bonney, Furbert-Harris, Dunston and Rotimi (2004) support that assertion. In some states, police officers profile suspects in accordance with race. The usage of racial extractions is commonly criticized for promoting an old-fashioned social appreciation of variations in human biology and propagating stereotypes according to RAND (2015). Given that in many human populations racial categorizations are closely related to societal stratification, those studying societal inequalities view race as a considerable variable.

The National Association of Citizens Advice Bureaux (2015) characterizes employees who face race discrimination as those whose employers treat them unjustly owing to their races or the races of their relations. The association indicates that there are two forms of discrimination hinged on race: indirect and direct. An employee is deemed to have faced direct, or express, race discrimination when she or he is treated less sympathetically than others in comparable circumstances owing to her or his race.

Notably, in the UK, the discrimination is legal in some cases. Especially, it is legal for employers to treat some employees less sympathetically than other employees when the employers can demonstrate that only particular races are adept at doing particular jobs. In such cases, that selective treatment of particular races is deemed to be a job, or occupational, requirement as opposed to an act of discrimination according to the National Association of Citizens Advice Bureaux (2015). That is the case in the US. As noted earlier, Title VII provides exceptions to its provisions outlawing the making of decisions by employers based on assumptions, as well as stereotypes, about the performance, traits, or abilities of employees from particular racial extractions (CSOSA, 2015). In this subsection, race has been examined as a foundation for employment discrimination. In the next section, color is explored as a foundation for employment discrimination.

Color as a Foundation for Discrimination

Jones (2001) indicates that the acts of discrimination that are hinged on skin pigmentation, or color, constitute colorism while those based on race constitute racism. Colorism, or discrimination that is hinged on the pigmentation, entails prejudices that are defined by having persons treated dissimilarly owing to the meanings linked to their skin pigmentations by particular societies (Jones, 2001). Walker (1983) coined the word, or term “colorism” in mid-1982. Notably, the term is not in any way synonymous with the word racism.

Race is dependent on manifold factors, which include one’s ancestry, rather than depending solely on skin pigmentation. The pigmentation is just of the bases employed in assigning persons to given racial classes, or categories. On the other hand, race comprises of sets of assumptions and beliefs that are assigned to the classes. Racism is essentially the reliance of societal statuses on the societal meanings linked to different races. Colorism is essentially the reliance of societal statuses on the pigmentation alone. For any discriminatory act to be deemed an act motivated by colorism, disparate treatment ought not to stem from any given racial classification, but from particular societal values linked to skin pigmentation according to Jones (2001).

Specifically, colorism is common in the US, Latin America, India, Africa, Southeast Asia as well as East Asia (Bancroft-Hinchey, 2001; Jones, 2001). According to Lynn (2008), the extant colorism’s abundance stems from the international pigmentocracy prevalence. Social scientists use the term “pigmentocracy” in describing societies or populations in social, as well as wealth, statuses are dependent on skin pigmentation. Across the many pigmentocracies globally, persons with light skins enjoy the highest communal, or social, as well as wealth, statuses (Bancroft-Hinchey, 2001). Their most favored statuses are followed by those with brown skins. Those who are black-skinned remain at the base of any given societal hierarchy.

Skin pigmentation bias has made certain that employers in given fields prefer to employ individuals with certain skin colors. For instance, in aviation jobs, light-skinned individuals are more likely to land employment than the brown-skinned and black-skinned individuals with comparable qualifications (Chesnutt, 2014). In America, colorism defines every race. Even then, it occurs most frequently among Blacks, European Americans, natives, Indian Americans, Mexican Americans as well as Asian Americans according to Jones (2001). This subsection and the preceding one have entailed an examination of skin color and race as foundations especially for employment discrimination. In the following subsection, the legal differences in the place values of color and race as foundations for discrimination are examined.

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Legal Difference between Race and Color

In the US, legal, or public, offices consider race and color as being different considerations. For instance, the Office for Institutional Equity and Diversity (2015) defines color as typically referring to skin pigmentation, or color, only. The same office defines race as typically referring to ethnological categorizations and physical attributes. The physical attributes usually linked to race are skin color, hair texture, and facial characteristics. Ethnological categorizations that are at times linked to race include Native American, Asian, African, Caucasian, Oriental, Polynesian, Jewish, European, Negroid, and Mongoloid. Some populations consider a number of these categorizations, as well as the related terms, offensive or outdated according the Office for Institutional Equity and Diversity (2015).

Title VII safeguards all persons against being discriminated against in employment. As noted earlier, Title VII safeguards persons from being discriminated against by employers based on considerations of their colors and racial extractions, nationalities, religious orientations, and sex. As well, Title VII safeguards persons from being discriminated against by employers based on considerations their ages, disabilities, pregnancy statuses, and sexual orientations. Besides, it bars employers from engaging in discriminating practices against particular employees with respect to reprisals and compensation.

As noted earlier as well, based on Title VII, it is illegal to show favoritism towards any candidate seeking employment or employee owing to her or his color or race. The favoritism and the corresponding discrimination are illegal with respect to employee hiring, compensation, employment privilege, condition, job training, promotion, and termination. Title VII outlaws the making of decisions by employers based on assumptions, as well as stereotypes, about the performance, traits, or abilities of employees from particular racial extractions. Besides, Title VII outlaws on purpose discrimination along with neutral employment policies that unduly exclude employees from minority populations on considerations that are not linked to their jobs as explained by CSOSA (2015) and EEOC (2015).

Title VII is violated by acts of discrimination that are based on immutable attributes linked to race. The attributes include particular facial features, hair texture, or skin pigmentation. Even then, some members of a given race may not have the same features as the rest. Title VII as well outlaws any act of discrimination based on conditions that chief affect particular races. The exception to that provision is where the discrimination is consistent with, as well as related to, legal job and business necessities. As noted earlier, Title VII provides exceptions to its provisions outlawing the making of decisions by employers based on assumptions, as well as stereotypes, about the performance, traits, or abilities of employees from particular racial extractions (CSOSA, 2015).

For instance, given that Blacks are markedly predisposed to suffering sickle-cell anemia, employment policies excluding persons with the condition are discriminatory save for cases where the policies are related to particular jobs and are match particular legal business necessities. Equally, employment policies that obligate employees to shave their beards clean may be discriminative against Black males since they are highly predisposed to development rather painful shavings save for cases where the policies are related to particular jobs and are match particular legal business necessities.

Legally, even though there is a clear overlap between color, or skin pigmentation, and race, they are not deemed synonymous. Color-based discrimination may happen between individuals from similar ethnic or racial extractions or between individuals from dissimilar ethnic or racial extractions. Notably, there is no express definition in statute for skin pigmentation, or color, as a discrimination basis. Even then, the Equal Employment Opportunity Commission and the US court system read the term “color” as having its normally appreciated meanings: skin complexion, skin tone, skin pigmentation or skin shade (EEOC, 2008).

Consequently, color-based discrimination happens in cases where individuals face prejudices owing to the color attributes like skin darkness or skin lightness. Title VII outlaws color, as well as race, discrimination against every person, including persons of Caucasian origin. Even though plaintiffs are capable of proving discrimination claims via circumstantial evidence or straightforward, or direct, evidence, various courts hold that if White plaintiffs depend on circumstantial evidence in establishing claims of reverse form of discrimination, they ought to suffice a higher proof standard than other plaintiffs prosecuting color-based discrimination claims.

On the other hand, the commission takes all plaintiffs prosecuting color-based discrimination claims as legally bound to meet the same proof standard, their racial extractions and evidence in their possession notwithstanding according to EEOC  (2008). Notably, in processing the claims, the plaintiffs ultimately shoulder the persuasion burden before the courts and before the commission. The third section of this paper explores the reasons why all employees should be safeguarded from discriminatory practices and acts based on skin pigmentation and race.

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Need for Protection from Discrimination Based On Color and Race

All prospective employees and current employees should be protected against both color-based discrimination and race-based discrimination owing to a number of reasons. The two types of discrimination and all discriminatory acts are dehumanizing. When persons are treated dissimilarly owing to their skin color or racial extraction, they are denied their agency as individual beings according to Philosophy (2005) and Segall (2012).

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Employers who treat employees dissimilarly owing to their skin color or racial extraction imply that their skin pigmentations or racial affiliations are adequately informative for them to appreciate who the employees actually are and what they are they are like. That insults the employees’ dignity as individuals in addition to denying them their individual agencies. The employees deny that their individual employees are distinct and free agents and persons (Philosophy, 2005; Segall, 2012). Indeed, individual employees are distinct and free agents and persons whom no one can conclusively specify based on their group attributes or affiliations. The next section demonstrates how the findings arrived at so far in this paper are of significance to practicing managers.

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Significance of Findings to Practicing Managers

The findings are rather significant to the managers since they demonstrate to them that neither color-based discrimination nor race-based discriminations against employees and prospective employees are legally acceptable. The managers should play a leading role in safeguarding employees and prospective employees from being discriminated against so as to protect them from being dehumanized by having human dignity stripped off them. It is essential that the managers know that when persons are treated dissimilarly owing to their skin color or racial extraction, they are denied their agency as individual beings according to Philosophy (2005) and Segall (2012).

Besides, the findings are significant to the managers since they inform them about the considerations they should make when formulating employment policies, especially the ones that may be legally deemed to be inconsistent with, as well as unrelated to, legal job and business necessities. The policies violate Title VII if they have any effect of excluding some classes of would-be employees or employees based on their skin pigmentations or racial extraction.  The managers can legally treat some employees less sympathetically than other employees when the employers can demonstrate that only particular races are adept at doing particular jobs. The last section of this paper is its conclusion. It provides a summary of the paper’s subject and findings.

Conclusion

Color and race are some of the bases for employee discrimination spelt out clearly in Title VII. Racism is essentially a social, or societal, construct, with the persons deemed socially to belong to one race sharing distinctive and similar physical attributes. On the other hand, colorism is hinged on skin pigmentation only. In the US, legal, or public, offices consider race and color as being different considerations. Legally, even though there is a clear overlap between color, or skin pigmentation, and race, they are not deemed synonymous. That is rather obvious from the actuality that color-based discrimination may happen between individuals from similar racial extractions. Practicing managers ought to protect all prospective employees and current employees against the two forms of discrimination to safeguard their human dignity and uphold Title VII.

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