EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Customer Preference

March 9, 2009

[ADDRESS]

Dear ____:

This is in response to your February 3, 2009 letter to the U.S. Equal Employment Opportunity Commission (EEOC) concerning a statewide Volunteer Reentry Coaching Program for inmates about to be released from prison. Specifically, you asked for guidance on the legality of asking inmates whether they “would have any concerns about having a mentor who is of a different ethnicity.” We will provide you with general guidance.

The EEOC enforces, among other laws, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,¹ which prohibits discrimination against employees or applicants on the basis of race, color, religion, sex, and national origin. If the mentors are employees of the Parole Division,² Title VII would likely be violated if employment assignments are made based upon parolees’ request for a mentor of a specific race or ethnicity.³ Although there are circumstances in which employment assignments based on national origin might be considered to be a bona fide occupational qualification (BFOQ), we know of no cases that suggest that the BFOQ defense would apply to the mentor-parolee relationship at issue here. More importantly, there is no BFOQ or any other statutory defense for making an employment decision based upon race.⁴

Title VII does not permit racially motivated decisions by an employer based upon customer preference. Assigning employees of the Parole Division to mentor parolees based upon the racial preferences of parolees is analogous to customer preference. As one court observed, “Title VII is a blanket prohibition of racial discrimination, rational and irrational alike, even more so than of other forms of discrimination attacked in Title VII . . . . [Therefore,] it is clearly forbidden by Title VII to refuse on racial grounds to hire someone because your customers or clientele do not like his race.” Rucker v. Higher Educational Aids Bd., 669 F.2d 1179, 1181 (7th Cir. 1982). Inasmuch as posing the question to inmates is likely to lead to race or ethnic-based assignments – or would be perceived as the basis for such assignments – we advise against doing so.

We hope that this information is helpful to you. Please note, however, that this letter does not constitute an opinion or interpretation of the Commission within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-12(b).

Sincerely,

/s/
Dianna B. Johnston
Assistant Legal Counsel

Footnotes

¹ 42 U.S.C. § 2000e-2(a) provides that it is unlawful to (1) discriminate in, among other things, compensation, terms, conditions, or privileges of employment, because of an individual’s race, color, religion, sex, or national origin; or (2) deprive an individual of employment opportunities by limiting, segregating, or classifying employees because of race, color, religion, sex, or national origin).

² Title VII is implicated only if an employment relationship exists between the Parole Division and the mentors. For example, Title VII does not apply if the mentors are volunteers and receive no compensation or other benefit from the Parole Division. If the mentors are not covered by Title VII, you should determine whether they would be covered by state or local law.

Title VII also does not apply to inmates because the relationship between a prison and an inmate is based upon incarceration, not employment. EEOC Decision No: 86-7, 1986 WL 38836 (Apr. 18, 1986). See also Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991) (prison inmate was not an “employee” under Title VII because his relationship with the Bureau of Prisons arose out of his status as an inmate, not an employee).

³ Cf. Johnson v. Zema Sys. Corp., 170 F.3d 734, 744 (7th Cir. 1999) (African-American plaintiff, who alleged that he was fired because of race, survived summary judgment because a jury could infer from unlawful segregation and job limitations – African-American salespersons served predominantly African-American accounts and White salespersons served accounts owned or frequented by Whites – that the employer’s reason for firing Plaintiff was pretextual); Ferrill v. The Parker Group, Inc., 168 F.3d 468 (11th Cir. 1999) (telephone marketing firm was held liable under § 1981 for admittedly assigning Black employees to make calls to Black households and White employees to make calls to White households).

⁴ See 42 U.S.C. § 2000e-2(e)(1) (Title VII’s “bona fide occupational qualification” (BFOQ) exception does not apply to race and color); 42 U.S.C. § 2000e-2(k)(2) (“business necessity” defense available in disparate impact cases is not available in intentional discrimination cases).

This page was last modified on March 18, 2009.

Return to Home Page