Dive Brief:

• Whataburger Restaurants LLC, a Texas-based regional fast food chain, will pay $180,000 to settle a U.S. Equal Employment Opportunity Commission (EEOC) lawsuit alleging retaliation and constructive discharge against one of its Tallahassee, Florida, store's former hiring managers.
• The general manager "repeatedly" told the hiring manager to hire white, not black, applicants for employment because upper management wanted its workforce to reflect the eatery's customer base, according to the EEOC. The hiring manager said that when she complained about the alleged policy, she was subjected to retaliation that included physical and verbal abuse, threats, a schedule change and additional work assignments, prompting her to resign.
• The three-year consent decree settling the lawsuit requires Whataburger to establish new human resource policies; provide training, whether live or computer-based; maintain an anonymous hotline for complaints; post a notice about the settlement at its worksite and report any new complaints of retaliation to the commission.

Dive Insight:

The EEOC has noted in an enforcement guide that employers cannot rely on customer or client preferences that are discriminatory as the basis for negative employment actions, and that an employment decision based on biased preferences is itself discriminatory.

Employers run afoul of Title VII of the Civil Rights Act of 1964 when they assign or refuse to assign workers to certain positions, deny promotions or otherwise segregate workers into jobs based on a protected class. The commission has noted that a desire for a certain type of "corporate look" can serve as pretext for discrimination and, as a result, employers would not be justified in hiring, assignment or promotion decisions that treat individuals in a discriminatory manner based on their national origin or other protected classes.

For example, an ultrasound technician provider settled an EEOC sex discrimination suit after terminating a male ultrasound technician because patients allegedly preferred female technicians. In another instance, Marquez Brothers International agreed to pay $2 million to settle an EEOC lawsuit alleging that its facilities in several U.S. states refused to hire non-Hispanic applicants for production and warehouse positions.

To prevent accusations of discrimination in hiring and promotions, employers should establish written criteria tied to business needs for evaluating candidates and consistently apply the requirements to all candidates.