Blanchard & Walker Weekly

Topic of the Week  Race Discrimination

  • Can a job application ask me to identify my race?
  • Can employers use testing or implement a policy that affects one race more than another?
  • Is race ever a qualification for a certain job?

Can a job application ask me to identify my race?

Requesting Requiring pre-employment information that discloses or tends to disclose an applicant's race suggests that race will be unlawfully used as a basis for hiring. Therefore, if members of minority groups are excluded from employment, asking for such information in the job application process is likely to be evidence of discrimination.

However, employers may have a legitimate need for information about their employees' or applicants' race for affirmative action purposes and/or to track applicant flow. One way to obtain racial information and guard against discriminatory selection is for employers to use “tear-off sheets” for the identification of an applicant's race. After the applicant completes the application and the tear-off portion, the employer separates the tear-off sheet from the application and does not use it in the selection process.

Additionally, if a company has 100 employees or more, or is owned by/affiliated with a company with 100(+) employees, they are required by law to submit an Equal Employment Opportunity report (EEO-1) each year to the Equal Employment Opportunity Commission (EEOC). This report includes a lot of information (including employee statistics) that is reported in aggregate. That means they aren’t reporting anything about individuals, just about big picture numbers for the company overall (aggregate statistics). The company may decide to gather these stats during the hiring process just to make this reporting task easier. But unless you are hired, they won’t be sending your information anywhere.

The hiring manager should not see this info while going over applications and resumes.

Can employers use testing or implement a policy that affects one race more than another?

Not if it is not job-related. Title VII makes illegal both intentional discrimination as well as job policies that appeal neutral but in fact are not job-related and disproportionately harm workers of certain races.

Example: A policy that requires a high school degree for all employees, which may disproportionately exclude African-Americans and Latinos. If a high school degree is not necessary to perform every position, such as those involving physical labor, then this policy might be illegal.

A policy that excludes individuals with sickle cell anemia tends to discriminate against African-American individuals and would be illegal unless proven to have a legitimate business purpose.

However, Yes, professionally developed tests may be used to make employment decisions if they do not discriminate on the basis of race. Employment tests that disproportionately exclude applicants/employees of a certain race must be validated.

Is race ever a qualification for a certain job?

Yes, in very limited circumstances. Title VII makes an exception when age is an essential part of a particular job – also known by the legal term "bona fide occupational qualification" or BFOQ.

Example: If a company hires an actor to play the role of an African-American father, being African-American is a necessary part of the job or a BFOQ. However, an employer who claims a BFOQ exists for a particular job must be able to prove a person of a certain race is required because a worker's ability to do the job is actually diminished if he or she is not a member of that race.

Thought of the Week

"Let us rise up tonight with a greater readiness. Let us stand with a greater determination. And let us move on in these powerful days, these days of challenge, to make America what it ought to be. We have an opportunity to make America a better nation."

–Martin Luther King Jr.; "I've Been to the Mountaintop," address delivered at Bishop Charles Mason Temple

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

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    • White men accounted for about 39 percent of professionals, 47 percent of managers and 59 percent of executives.


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