Can a racist business owner legally get away with saying he only wants to hire people that &#39;look white&#39;? This is a belated follow up to an earlier question where I asked how one can get away with hiring actors of an appropriate race when BFOQ (Bona Fide Occupational Qualifications) exceptions do not apply to race. The answer was that you can't insist on hiring someone who is black, but you can require someone that looks black. So taking that to the logical extreme if one employer is allowed to make requirements based off of one's apparent race why can't others? If I have some organization that panders to racist folks can I say I need all my servers to look like the appropriate race so that I don't offend my clientele? I'm pretty sure (and hope!) the answer is that this isn't legal, but what I'm wondering is more what the distinction between these two cases is. How is the line drawn between the few legitimate reasons where hiring someone based off of the race they appear to be makes sense and all the numerous occasions where it would just be an end-run around refusing to hire someone based off of race? Is there an actual hard and fast line here? Has there been a court case where someone tried to hire only people that appear white as a means of discrimination and the courts gave a ruling specifying why it wasn't allowed?
No. The Civil Rights Act of 1964 prohibits an employer from discriminating on the basis of race, color, religion, sex, or national origin. It is therefore generally forbidden for an employer to refuse to hire someone because they are not white/black/etc. or because they do not look white/black/etc. The law permits exceptions when the employee's religion, sex, or national origin is a bona fide occupational qualifiction, but not when the employee's race or color is a bona fide occupational qualification. The answer to your previous question was wrong because it adopts an &quot;is black vs. looks black&quot; distinction that doesn't really work. Discriminating against someone because they &quot;look black&quot; is the same thing as discriminating on the basis of color. Even if you were saying someone &quot;looked black&quot; because of their hair or facial structure or clothing, you're talking about &quot;perceived as&quot; discrimination, which many courts treat as equally impermissible. See, e.g., Perkins v. Lake Cty., 860 F. Supp. 1262, 1278 (N.D. Ohio 1994) (“Objective appearance and employer perception are the basis for discrimination and, in the opinion of this Court, the key factors relevant to enforcing rights granted members of a protected class.”). As far as I know, the question of whether one may discriminate on the basis of race or color in casting decisions is still unresolved, but the courts that have looked at it seem to so far be in agreement that casting directors may make engage in that kind of discrimination because their constitutional rights to create their art as they see fit under the First Amendment overrides their statutory obligation to provide equal employment opportunities under the Civil Rights Act. For example, the issue arose when a black man brought civil-rights claims against ABC for excluding him from auditions for The Bachelor. ABC argued that its casting decisions are an essential component of its expression, and the court agreed: Ultimately, whatever messages The Bachelor and The Bachelorette communicate or are intended to communicate — whether explicitly, implicitly, intentionally, or otherwise — the First Amendment protects the right of the producers of these Shows to craft and control those messages, based on whatever considerations the producers wish to take into account. ... Thus, whether enforcing § 1981 here would frustrate, enhance, or be entirely consistent with the message that The Bachelor and The Bachelorette conveys, the First Amendment protects the producers' right unilaterally to control their own creative content. Claybrooks v. ABC, Inc., 898 F. Supp. 2d 986, 1000 (M.D. Tenn. 2012).
Your bank is not discriminating against you. Your reasons for not having the required amount of funds pass thru your account has nothing to do with your marital status. In general, it's problematic to make a chain-of-cause-and-effect argument for discrimination. For example. Your argument is analogous to the following. My boss fired me for being late to work. But I was late to work because my child woke up late and missed the school bus; so I had to drive her to school. Therefore, my boss fired me for having children. That type of chain-of-cause-and-effect argument for discrimination just doesn't hold water. It is non sequitur and a requires a leap of logic.
It's almost certainly legal and is commonplace in much of the world- especially in technology-related fields. There is a legitimate reason for a recent degree in a changing field such as Computer Science. A degree from 2019 would have covered very different topics than one from 2009, which would be unrecognisable from one from 1999. While I agree it is more likely that valid applicants will be young (under 35), there is no reason to believe this was the intention. For this to be illegal it would have to be done with the puropse of deterring older applicants. If you're still convinced it's illegal and want to spend time and money on this, lawyer up. If you're looking for advice on how to be considered anyway, I know for a fact this has been asked on Workplace before.
It is entirely legal to discriminate on arbitrary grounds. What is not legal is to discriminate on the basis of a protected category, for example race. The law say that you cannot favor or disfavor a customer because of their race. Federal law specifically prohibits discrimination on the basis of race, color, religion, or national origin, but not age or gender (disability is more complicated). Moreover, the grounds are not arbitrary. The establishment is at legal risk if a customer does not wear eye-protection, and you have no right to compel them to assume that risk: it's a perfectly normal business decision. The law states that "Customers are not allowed to use a tanning device unless the customer uses protective eyewear", and verifying that you have such eyewear is the minimal way of assuring compliance with the law.
Barrister to instructing solicitor: “Am I working for the plaintiff or defendant?” Plaintiff Your honour, this excellent study and the expert testimony you have heard from the authors, clearly demonstrates that whiteboard testing is sexual discrimination by another name. The clear correlation between the gender of the interviewee and their ability to perform this task, which is unrelated to the job and is actually a test of how good the person is at handling performance anxiety, is being used to prejudicially and unlawfully screen out female applicants. Defendant Your honour, this discredited paper and the inconsistent testimony of the author clearly demonstrated that the methodology was flawed and the conclusions are unsupportable. When pressed, it turned out that the number of females encompassed by the catch-all word “all” was 6 - hardly a sample big enough to draw any meaningful conclusions from. Further, it turned out that the number of men who also improved was unknown because they didn’t test them! So we have the authors of a study with gender discrimination in its very methodology drawing asinine conclusions from it about gender discrimination! It may be that whiteboard testing is better at finding competent actors than programmers and this may make it a terrible recruitment tool. However, my client can run their businesses in whatever inefficient way they choose so long as it isn’t unlawful discrimination - and this isn’t that.
The Supreme Court has held, Regents of California v Bakke 438 U.S. 265, that a racial quota system is unconstitutional. The decision upheld the use of race as one of many factors, but ruled against setting aside positions that could only be filled by members of racial group ("forecloses consideration to persons like respondent"). To be constitutional, the practice must allow the possibility of hiring a person not in the racial group, thus they cannot require a person to be of a certain ethnicity, which is the situation you describe (but check the language of the ad since it probably states a preference, not a requirement). Preferences are found to be allowed in Grutter, Fisher, just as GPA or extramural activities can be considered. In Gratz it is emphasized that racial classifications are subject to strict scrutiny, thus must be narrowly tailored, and a system automatically awarding points or disqualifying applicants based on race is not narrowly tailored. The EEOC has made available this non-opinion letter addressing faculty recruitment and the "especially encouraged" clause, which more or less says this, also pointing to 29 CFR 1607, i.e. addressing the Title VII issue. 29 CFR 1607.2(C), the statutory realization of Title VII, says the use of recruiting procedures designed to attract members of a particular race, sex, or ethnic group, which were previously denied employment opportunities or which are currently underutilized, may be necessary to bring an employer into compliance with Federal law, and is frequently an essential element of any effective affirmative action program; but recruitment practices are not considered by these guidelines to be selection procedures 29 CFR 1607.3(B) requires that Where two or more selection procedures are available which serve the user's legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have the lesser adverse impact which expresses the "least restrictive" concept of strict scrutiny.
The theatre is a private place. You may enter it only with the permission of the owners. They are not obliged to grant you that permission. They have the right to refuse admission on almost any grounds they choose. I say "almost" because many jurisdictions have laws about things like race or gender discrimination. I suspect in India it would be illegal to say "You can't come in because you are Hindu." The point is though, that there is a short list of reasons which they aren't allowed to use. Any other reason is legal.
One limit is that potential jurors cannot be excluded solely on the basis of their race. See Batson v. Kentucky, 476 U.S. 79 (1986); Flowers v. Mississippi, 588 U.S. ___ (2019). As summarized in Flowers: Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process. Enforcing that constitutional principle, Batson ended the widespread practice in which prosecutors could (and often would) routinely strike all black prospective jurors in cases involving black defendants. By taking steps to eradicate racial discrimination from the jury selection process, Batson sought to protect the rights of defendants and jurors, and to enhance public confidence in the fairness of the criminal justice system. Batson immediately revolutionized the jury selection process that takes place every day in federal and state criminal courtrooms throughout the United States. The Batson restriction is not merely that one cannot explicitly announce race as the factor by which one is excluding a juror. This will most often not be the kind of evidence available and if that were the rule, the purpose of the rule would easily be defeated. What Batson prohibits is exclusion of a juror &quot;on the basis of race&quot; (whether or not a proxy was the proximate or purported means by which the prosecutor made the decision). See Flowers at p. 18 of the slip opinion: The trial judge must determine whether the prosecutor’s proffered reasons are the actual reasons, or whether the proffered reasons are pretextual and the prosecutor instead exercised peremptory strikes on the basis of race. The ultimate inquiry is whether the State was “motivated in substantial part by discriminatory intent.”