Racial Coding on Job Application: Was It Racial Discrimination?

A recent federal case from the 7th Circuit considers the practice by some employers of using coding on application forms to note the race of the applicant. Commentator Paul Mollica wrote about the case of Whitfield v. Int'l Truck & Engine Corp. in a recent blog article. The defendant in the case is known by the trade name of Navistar. The 7th Circuit reversed the trial court’s ruling and sent the case back for further findings (this was a non-jury case).

Paul Mollica

Paul Mollica

When Congress adopted the Civil Rights Act of 1964, Mollica explains, one important provision banned the use of racial considerations in hiring employees. However, some employers tried to get around the prohibition by making certain coded markings on applications to indicate the race of an applicant. Shoney’s restaurants used to blacken the “o” in “Shoney’s” on job applications as a code for black applicants.

In the Whitfield case, the plaintiff was not hired for a position with Navistar. It was discovered that the word “black” was written on the cover sheet of Whitfield’s application, and “nobody could give any accounting of why it was there.” Mollica says that this might turn out to be a case of racial discrimination depending on what turns up when the case is reheard by the district court.

The district court judge dismissed the notation on the cover sheet, even though there was a history or racial issues at Navistar. Mollica explains that Whitfield’s claim was part of a larger case involving 26 plaintiffs and a variety of racial discrimination claims involving nooses, racially hostile graffiti, and racially offensive slogans. The trial judge “conjectured that it might have been there for affirmative action or other progressive and perfectly reasons.” The 7th Circuit concluded that Whitfield was entitled to have a jury decide that issue. Also, Whitfield had more experience than others who were hired instead.

Paul W. Mollica joined Outten & Golden LLP as Of Counsel in 2010. He is a frequent author and lecturer (for lawyers and courts) in the area of employment discrimination. He is a two-term past president of the Chicago Council of Lawyers, a public-interest bar association. He has been selected as a Super Lawyer© in Illinois and haTs the highest, AV© rating from Martindale-Hubbell. He is licensed to practice in Illinois and New York. The Legal Broadcast Network is a featured network of the Sequence Media Group.

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