The term "color" has been interpreted to mean pigmentation, complexion, or skin shade or tone. Although color and race discrimination often overlap, a person may allege color discrimination without alleging race discrimination. For example, a darker-skinned Hispanic person may claim color discrimination when the employer allegedly favored lighter-skinned Hispanics over darker-skinned Hispanics.
Color discrimination may occur not only between persons of the same race but also between persons of different races. For example, a discrimination claim may exist where a plaintiff alleges that he and other dark skinned security guards were treated less favorably than lighter skinned minorities and whites.
Title VII generally allows employers to establish a bona fide occupational qualification ("BFOQ") reasonably necessary to the company's normal operation as a defense to employment discrimination claims. However, under Title VII, race and color can never be considered a BFOQ. Title VII, 42 U.S.C. § 2000e-2(e)(1), lists religion, sex, and national origin as a BFOQ, but it excludes color and race. Unlike federal law, Hawai'i law permits employers to establish race or color as a BFOQ affirmative defense. Haw. Rev. Stat. § 378-3(2).
Race or color discrimination, like all Title VII and HRS 378 protected characteristics, may fall within the disparate treatment or disparate impact category. In disparate treatment claims, race or color is a motivating factor for the employment decision. Evidence of disparate treatment may be through discriminatory statements referring to a person's race or color. While some comments may have overt racial connotations, some statements may have more subtle racial references. In a recent case, the United States Supreme Court ruled that the term "boy", standing alone may be evidence of racial animus.
In addition to racially tinged statements, evidence of disparate treatment can be presented from a comparison of similarly situated persons of a different race, the company's personnel policies or practices, the decision maker's race, and statistical evidence.
In disparate impact claims, an employment policy that appears neutral significantly impacts a protected group. Disparate impact discrimination because of race or color is defensible if the job requirement is job-related and consistent with business necessity. In one significant case, an appearance policy requiring employees to be clean shaven was found to disparately impact African-American men who can uniquely suffer from a skin condition that prevents them from shaving. The defense to a disparate impact case may be asserted, though, where safety reasons exist for the neutral policy being attacked
In the Hawai'i Civil Rights Commission's ("HCRC") Guideline for Pre-Employment Inquiries (Application Forms and Job Interviews), the HCRC expressly identifies certain areas of inquiry that may result in a per se violation of the law. Not surprisingly, an applicant's race, skin color, skin, eye and hair color, etc., or other questions directly or indirectly indicating race or color, including a person’s height (unless it is a BFOQ), are prohibited areas of inquiry.
More surprisingly, such inquiries may result in liability for the employer even if the questions had no impact on the selection process. Such position is contrary to the Equal Employment Opportunity Commission’s (“EEOC”) position that impermissible questions can be evidence of discrimination, but does not necessarily lead to liability.