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April 28, 2015 Articles

Fifth Circuit Differentiates "Color" from "Race"

The court recently specified that they are two distinct forms of discrimination that are usually treated as the same.

By Kindall James

In Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., No. 14-30026 (Feb. 2, 2015), the Fifth Circuit addressed a unique issue under Title VII of the Civil Rights Act of 1964, as amended. Specifically, the Fifth Circuit found that, under certain circumstances, “color” can be a discrete basis for alleged discrimination, separate and apart from discrimination based on “race.” Title VII prohibits discrimination in employment decisions based upon an employee’s race, color, religion, sex, or national origin; however, the “color” basis is often overlooked. Discrimination claims based on a claimant’s skin color are typically labeled as claims for “race” discrimination rather than discrimination based on “color.”

The plaintiff in Etienne worked as a waitress and bartender for the defendant casino, and was passed over for a position that was ultimately filled with a white employee. The plaintiff claimed that the white employee was less qualified for the position, and presented an affidavit stating 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. The plaintiff also stated that she was told multiple times that the manager thought she was “too black” to do various tasks at the casino. The defendant countered with evidence showing that five of the casino’s six management positions were filled by African Americans.

The district court granted summary judgment for the defendant. The Fifth Circuit reversed finding that the district court erroneously treated the case as one of race discrimination and “relied heavily on the fact that most of the managers at Spanish Lake were of the black race.” The Fifth Circuit held that, although it had never expressly addressed such a claim, a discrimination claim based on “color” but not “race” is an actionable claim under the “clear and unequivocal” text of Title VII.

— Kindall James, Liskow & Lewis, Houston, TX

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