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As an employer, you should know by now that you can't make hiring decisions based on race. After all, you're not racist, so why would you? But what if your customers or clients are? Can you refuse to hire black employees because clients refuse to work with them? Can you keep Hispanic employees in back-of-house positions because customers refuse to be served by them? The short answer is still no. Here's the long answer:
The Blame Game
A 2017 study revealed that anti-black hiring discrimination hasn't improved at all in the past 30 years, finding "white applicants receive 36 percent more callbacks than equally qualified African Americans" and "24 percent more callbacks than Latinos." And Fortune reported that the discrimination gap soared for applicants seeking jobs with a customer focus, leading the magazine to speculate that "it's not that recruiters themselves necessarily have a racial bias; instead, they fear some of their customers do."
Still, is that a good enough reason to avoid legal liability if you're discriminating in your small business? Not according to the Equal Employment Opportunity Commission. The EEOC has litigated and settled several cases of racial discrimination based on customer preference, including medical centers who accommodated patient requests for Caucasian caregivers, restaurants that fired black employees because patrons "did not like to be waited on by them," and a wooden play system manufacturer who fired a white district manager for recommending the promotion of two black employees for district manager positions because "our customers can't relate to minorities and therefore we must be choosy who we hire."
Title VII of the Civil Rights Act of 1964 prohibits making employment decisions because of an individual's race, color, or national origin. That includes segregating minority employees by physically isolating them from other employees or from customer contact, or assigning primarily minorities to predominantly minority establishments or geographic areas. It is also a Title VII violation to exclude minorities from certain positions or to group or categorize employees or jobs so that certain jobs are generally held by minorities. Even coding applications or resumes to designate an applicant's race (even if done by a hired employment agency) constitutes evidence of discrimination if minorities are excluded from employment or from certain positions.
Even if you think keeping customers and clients happy is a good enough (or the only) reason for making race-based employment decisions, we assure you that state and federal employment authorities will not agree. To make sure your small business isn't making discriminatory hiring, positional, or promotional decisions based on race, talk to an experienced employment attorney about creating an effective anti-discrimination policy.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.