'Color bias' cases gain momentum.

The flurry of national press that followed the settlement of a recent Georgia "color bias" case illustrated how obscure such claims have been--until now. Unlike traditional race discrimination claims, color-bias cases typically involve plaintiffs and defendants of the same race who have different skin tones.

Even Black's Law Dictionary, in its definition of Title VII of the Civil Rights Act, omits "color" from the list of characteristics protected by the statute, which has rarely been applied to color-bias claims. But that's changing.

"We've certainly seen an increase in litigation where color [is] the issue," said Robert Royal, an Atlanta-based regional attorney for the U.S. Equal Employment Opportunity Commission (EEOC). He represented the plaintiff in Burch v. Applebee's International, Inc. (No. 1:02-CV-829 (D. Ga. Aug. 7, 2003).)

According to the EEOC, the number of color-bias filings more than tripled between 1994 (413 complaints) and 2002 (1,382 complaints). Royal said one reason for the surge is changing demographics in the workplace.

"There's an increase in the number of people of color in positions of authority," he said, so "there's a greater opportunity for people to violate the law, and often the victims are of the same race."

Such was the case for Dwight Burch, an African-American employee at an Applebee's restaurant in Atlanta. Burch alleged that his lighter-skinned manager made some derogatory comments about Burch's skin color. When he reported the manager to corporate headquarters, Burch was fired.

The EEOC investigated and settled the case on Burch's behalf. Applebee's denied any wrongdoing but paid damages and agreed to update its discrimination policies to address color bias.

Royal said Applebee's lack of a color-bias policy reflects a broader insensitivity to the issue. "A difficulty you have in trying a color case, especially if the perpetrator and victim are of the same race, is that people tend to believe [the discrimination] can't be that bad," he said. "You have to convince the jurors that what has happened is not only wrong, but worthy of fair compensation."

He suggested that a lawyer handling such a case enlist an expert, preferably a psychologist whose patients are of the same protected class as the plaintiff. For an upcoming color-bias trial--scheduled for the end of this month--attorney Florence Johnson of Memphis, Tennessee, hired a Tufts University social psychiatrist who published a study of how darker-skinned African-Americans are perceived in the African-American community. He will testify that the issue of skin tone is painful and sometimes divisive within that community.

Not all color-bias lawsuits are intraracial. Johnson's African-American client, Jerry Brack, was the manager of a Captain D's restaurant, owned by Shoney's, Inc., in a predominantly white neighborhood. (Brack v. Shoney's, Inc., No. 012997 (W.D. Tenn. Dec. 12, 2001).) When his supervisor, a Hispanic woman, learned that a lighter-skinned African-American manager was available, she brought him to Brack's restaurant and moved Brack to one in a predominately African-American neighborhood.

"She went out of her way to hire light-skinned employees and put them in stores where she thought they'd do [a better job of] relating to customers," said Johnson.

Brack alleged that the manager called him a "little black sheep" and said, when comparing him to his lighter-skinned replacement, "he's like the day and you're like the night." Brack said that others nicknamed him "Little Black Sheep," which undermined his ability to manage the restaurant.

Johnson said she initially was unsure whether her client even had a case. "I had to get Title VII out and take a look at it again to make sure that this is an actionable case," she said. She called color bias a "very, very subtle form of discrimination" and said that many potential plaintiffs aren't aware they have a legitimate complaint.

"In our society, we've been desensitized to complaining about skin-tone issues," Johnson said. "People tend to think, 'Oh, that's not really an issue anymore, that's something left over from the '40s and '50s.' But it still exists."