“Too Black”: Waitress’s Claim of Color Bias Raises Novel Title VII Claim
Title VII of the 1964 Civil Rights Act prevents discrimination in employment decisions based upon an employee’s race, color, religion, sex, or national origin. Bias claims based on a claimant’s skin color are nearly unanimously predicated upon bias against ‘race’ rather than ‘color.’ Circumstances can arise, as the Fifth Circuit found, where ‘color,’ rather than ‘race,’ is a discrete type of alleged discrimination. In a novel holding, the U.S. Court of Appeals for the Fifth Circuit ruled in Etienne v. Spanish Lake Truck & Casino Plaza, LLC that a separate claim of ‘color’ can provide the necessary foundation for a claim of discrimination based on ‘race.’
Esma Etienne worked for Spanish Lake Truck & Casino Plaza as a waitress and bartender, but she was passed over for a managerial position. Spanish Lake then filled the position with a white employee, one claimed by Etienne as being less qualified for the job. The casino countered Etienne’s claim of racial bias by showing that five of the casino’s six management positions were filled by African-Americans. The Fifth Circuit, however, found that the issue of Etienne’s color, rather her race itself, played a key role in the decision to keep her from advancing. Etienne’s affidavit noted that the general manager granted responsibilities to employees based on their skin color, and that he wouldn’t permit “a dark skinned black person” to handle money. She also stated that she was told on several occasions that the manager thought she was “too black” to do various tasks at the casino. The court ultimately held that the district court was in error for granting summary judgment for the casino in finding a lack of racial bias, holding that a ‘color’ claim, despite being a novel claim under past jurisprudence, is within the “clear and unequivocal” wording of Title VII and thus permissible as a claim.
This is the first time that a ‘color’ claim under Title VII succeeds as a separate and distinct claim from ‘race’ in Federal Court at the appellate level and is likely a bellwether, opening the door for a new form of Title VII claim. Employers should take this is an opportunity to review equal opportunity and antidiscrimination policies, as well as train employees thoroughly such policies and any impermissible conduct.