Can a racist business owner legally get away with saying he only wants to hire people that 'look white'?

Question

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?

Answer 1

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 "is black vs. looks black" distinction that doesn't really work. Discriminating against someone because they "look black" is the same thing as discriminating on the basis of color. Even if you were saying someone "looked black" because of their hair or facial structure or clothing, you're talking about "perceived as" 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).

Answer 2

In the case of an actor, the actor's appearance, even the actor's detailed appearance, is pretty clearly a BFOQ. The actor must fit the director's (or producer's) vision of the role, and fit into the rest of the cast visually (or stand out in the way wanted for the particular production.) For example, in a traditional production of Othello the actor must look Black. In a crime drama set in inner-city Los Angles, the actor must seem to fit that setting, and quite possible must look Hispanic, depending on the details of the drama and role.

This is not true for most occupations. The employer has no legitimate interest in how a truck driver or cook looks. While there is some superficial plausibility in the "my customers won't accept a server of XX race" claim, I believe it has been held that this makes unlawful racial discrimination by the owner too easy, and this has been held not to be a BFOQ.

Answer 3

They can get away with it, but in the US, at least, it strongly indicates a violation of the Civil Rights Act. A non-racist business owner can also lose a Title VII suit, since the Civil Rights Act isn't used to convict people of racism; rather it protects people from discriminatory hiring practices, which may be subjective.

Notably, the opposite scenario to what is often assumed can also happen; if a business owner or government manager refuses to hire/promote someone because they are "white" the law may also punish that employer. This can happen regardless of whether the employer is also white, or is black, etc. It can also happen if the employer has what they consider good intentions--for example, if they want to give black job applicants a chance at a job.

This is possible simply because when they decide not to hire or promote the (majority) applicant based on race or color, they are violating the act. Minorities are not exclusively protected by the act, people are protected, and what they are protected from in this case is "discrimination based on race or color." So it is the act of discriminatory hiring based on race, sex, etc., that triggers the law.

Now BFOQ... there are of course some exceptions. A Shinto priest can not force an Apostolic monastic order to hire them as chief abbot, regardless of how qualified they may be in Shinto. Their qualifications as a religious leader are irrelevant in this case because the Apostolic set of beliefs and practices is "essential" to the operation and purpose of an Apostolic monastic order.

You might also be familiar with Hooters, a restaurant which is known for using fertility signals to attract male customers. They were indeed sued by some men who they refused to hire as servers, and they settled the suit. They didn't actually lose it though. What they did was agree to make available a number of gender neutral positions for employment. They preserved the right to select servers based on the signals of attraction considered essential to the business.

And of course there are acting roles, which are somewhat easier to defend under the bona fide occupational qualifications. I'm sure there either is or will be an exception somewhere, some day, but it's not going to be easy to sue someone for refusing to hire a light skinned person for the role of a person who was discriminated against for their dark skin. Or a dark skinned person for the role of an albino for that matter. There are some cases where inborn physical characteristics such as color are an essential job qualification. But at the same time, plaintiffs and courts, much less law and administrative code, will likely never define every situation where that is deemed legitimate, vs the situations where it is deemed unfair and illegal discrimination.

See:

• EOCC v. Hooters
• Duvant v. Novant Health

Also:

• Religious exceptions as described on EOCC guidance.
• Article discussing and citing cases of restaurants and adult businesses.
• EOCC FAQ about protection for white employees.
• Discriminating against your own race.