Almost one year ago, the Equal Employment Opportunity Commission launched an initiative to target systemic discrimination by pursuing pattern and practice cases and class actions.
Late last month, the agency indicated that racial discrimination is likely to be a primary focus of that effort by introducing a campaign called “Eradicating Racism and Colorism from Employment.”
“What we are attempting to do is retool, rethink, refocus and prepare ourselves to fight discrimination in the 21st century,” EEOC Chairwoman Naomi Earp told reporters after a commission meeting that included wrenching testimony from Hispanic, Asian and African-American victims of employment discrimination.
“It’s more about public education, outreach and raising employer awareness of the subtle nature, including the hidden biases, of discrimination,” she says.
Technological advances have introduced new ways to discriminate, such as sorting job candidates by ethnic enclaves and ZIP codes.
“We need to be aware of those trends and have our attorneys and our investigators trained to investigate those claims,” Earp says.
Although the EEOC program relies more on moral suasion than enforcement at the moment, companies should publish their equal opportunity policies now, according to one lawyer.
“Employers that are making the effort may be less likely to be targets of EEOC litigation action,” says Debra Friedman, a partner at Cozen O’Connor in
Companies don’t need to be innovative to reduce racism, according to Marc Bendick Jr. of Bendick and Egan Economic Consultants. He recommends developing explicit performance criteria, posting jobs openly, conducting structured interviews, training supervisors and establishing formal pay bands.
“This is HR 101,” Bendick says. “It’s amazing how many employers don’t do the basics. Most of the problems turn out to be greatly susceptible to race-neutral solutions.”
Racial discrimination accounted for 27,238 charges, or 36 percent of the EEOC’s private-sector caseload, in fiscal 2006.
But a study by Seyfarth Shaw of 407 court rulings in 2006 showed that wage and hour suits were more likely to be certified for class-action status than were discrimination cases. Payroll discrepancies generally allow for more straightforward adjudication, according to Gerald Maatman Jr., a lawyer with the firm.
A goal of avoiding litigation isn’t enough to underpin a diversity initiative. But diversity will permeate more workforces if employers are convinced that it will deliver business results, like increased sales and improved products, says Diane Seltzer, a
“That’s the bottom-line question if you’re a businessperson: How does this make my business better?” Seltzer says. “That’s the language they speak. That’s the language they hear.”
Whether companies are avoiding a negative or achieving a positive, they must resist quotas and special treatment for minorities, according to Roger Clegg, president of the Center for Equal Opportunity.
“The only way to enforce anti-discrimination laws is to play no favorites,” he says. “Companies should not be taking race or ethnicity into account. You should look at people as individuals.”
Mark Schoeff Jr.