week 6 project

Chapter 7 National Origin Discrimination

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Learning Objectives

By the time you finish studying this chapter, you should be able to:

1. LO1Describe the impact and implications of the changing demographics of the American workforce.

2. LO2Define the prima facie case for national origin discrimination under Title VII.

3. LO3Explain the legal status surrounding “English-only policies” in the workplace.

4. LO4Describe a claim for harassment based on national origin and discuss how it might be different from one based on other protected classes.

5. LO5Identify the difference between citizenship and national origin.

6. LO6Explain the extent of protection under the Immigration Reform and Control Act.

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Opening Scenarios

SCENARIO 1

Kayla, a supervisor, recently hired a new manager, Alex, but has received complaints from customers that they cannot understand him when they speak to him on the telephone. Alex is a Romanian employee visiting from the company’s Romanian office and is scheduled to remain with the firm for two years. Kayla is concerned

that if she allows Alex to perform duties similar to other managers, the firm will lose customers; however, she is unsure about the firm’s liability for decreasing Alex’s responsibilities as a result of his foreign accent.

SCENARIO 2

Mohammed, an Arab-American Muslim high school student, had a job after school at a fast-food restaurant. A few co-workers started asking him why his “cousins” bombed the World Trade Center. Mohammed ignored their taunts. Then a manager began to add comments such as “Hey, Mohammed, we’re going to have to check you for bombs.” Mohammed felt humiliated and angry. Soon after, he was terminated for accidentally throwing away a paper cup that the manager was using. Mohammed suspects that his religious and ethnic background was the reason he was fired.

Statutory Basis

The statutory basis for protection against national origin discrimination is presented in Exhibit 7.1, “Legislation Prohibiting National Origin Discrimination.” These statutes include section 703(a) of Title VII of the Civil Rights Act of 1964 and the Immigration Reform and Control Act of 1986. Additional direction can be found in the EEOC’s Enforcement Guidance on National Origin Discrimination.

Exhibit 7.1 Legislation Prohibiting National Origin Discrimination

TITLE VII, CIVIL RIGHTS ACT OF 1964

Sec. 703(a)

It shall be an unlawful employment practice for an employer—

1. to fail or to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . national origin.

IMMIGRATION REFORM AND CONTROL ACT OF 1986

Sec. 274A(a)

1. It is unlawful for a person or other entity:

A. to hire or to recruit or refer for a fee for employment in the United States an alien knowing the alien is an unauthorized alien with respect to such employment, or

B. to hire for employment in the United States an individual without [verification of employment eligibility].

2. It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or had become) an unauthorized alien with respect to such employment.

3. A person or entity that establishes that it has complied in good faith with the [verification of employment eligibility] with respect to hiring, recruiting or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A).

Sec. 274(B)(a)

1. It is an unfair immigration-related practice for a person or other entity to discriminate against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—

A. because of such individual’s national origin, or B. in the case of a protected individual [a citizen or authorized alien], because of such individual’s citizenship status.

Chez/Casa/Fala/Wunderbar Uncle Sam

The United States of America has always considered itself to be a melting pot. Under this theory, different ethnic, cultural, and racial groups came together in the United States, but differences were melted into one homogeneous mass composed of all cultures. Recently, this characterization has been revisited and other, more accurate terms have been proposed. They include such terms as a salad bowl, in which all the ingredients come together to make an appetizing, nutritious whole but each ingredient maintains its own identity, or a stew, in which the ingredients are blended together but maintain their distinct identity, with the common thread of living in America acting as the stew base that binds the ingredients together.

While the words on the Statue of Liberty—“Give me your tired, your poor, your huddled masses yearning to breathe free”—have always acted as a beacon to citizens of other countries to find solace on our shores, the reality once they get here, even sometimes after being here for generations, is that they are often discriminated against, rather than consoled. National origin was included in Title VII’s list of protected classes to ensure that employers did not make employment decisions based on preconceived notions about employees’ or applicants’ country of origin. Note that section 1981 of the Civil Rights Act of 1866, as amended by the Civil Rights Act of 1991, also may apply in those circumstances where national origin is a proxy for or equivalent to race (discussed later in this chapter).1

page 325Speaking of race, as was mentioned in the introduction to the chapter on race

discrimination, recently there has been a sort of blending of the race and national origin categories, with employees bringing as race discrimination cases those that had traditionally been brought as national origin claims. The traditional distinctions in the law are becoming blurred; but the significant thing is that, for instance, whether being Latin is considered race discrimination or national origin discrimination, it is, in fact, illegal to make workplace decisions on the basis of this attribute. What is critical to understand is that a decision based on either attribute is illegal; and national origin is a distinct category in this textbook because it is the way that such claims are traditionally handled, and because we are reluctant to blend completely the two areas when they have quite different histories, implications, and analyses for today’s employment arena.

The Changing Workforce

LO1

Over the past decade, we have seen a dramatic increase in the number of immigrants to the United States, particularly from Latin American and Asian countries. In 2014 page 326alone, the

United States was home to a record 42.2 million immigrants who, by 2016, comprised over 13.2 percent of the nation’s population. This number represents a fourfold increase since 1960, when there were 9.7 million immigrants living in the country. At that time, immigrants made up only 5.4 percent of the U.S. population. The growth rate is expected to continue and the number of immigrants in the United States is expected to double by 2065.2 By 2016, the United States was growing by one person every 8 seconds, and gaining one international migrant every 29 seconds.3

In 1960, 84 percent of immigrants living in the United States were born in Europe or Canada. Since the passage of the 1965 Immigration and Naturalization Act, this demographic has changed dramatically. As of 2014, European and Canadian immigrants made up only 13.6 percent of U.S. immigrants. Mexicans made up the largest share—27.7 percent—while Asian immigrants comprised 26.4 percent of U.S. immigrants. Immigrants from Latin America comprised 23.9 percent and 8.3 percent of immigrants were born in other regions.4 In 2015, there were 26.3 million foreign-born workers in the United States, comprising 16.7 percent of the total labor force.

Latinx5 accounted for 48.8 percent of the foreign-born labor force, with Asians comprising a further 24.1 percent.6

From 2014 to 2015, unemployment rates for foreign-born workers declined by 0.7 percent, while dropping 0.9 percent for U.S.-born workers. In 2014, the jobless rate among U.S.-born men (5.6 percent) was higher than that for foreign-born men (4.5 percent). Despite having a slight edge in employment, the median weekly earnings of foreign-born, full-time workers were significantly lower than their U.S.-born counterparts: $681 compared with $837 (among women, a difference of $626 to $740 and among men, a difference of $712 versus $934). However, the earnings gap narrows with higher levels of education: among those with a bachelors degree or higher, earnings were essentially identical.7

On its face, national origin discrimination appears to be relatively simple to determine; however, it has surprising complexities. Employers have always been uncertain of the scope of Title VII’s coverage in this area and what could be used as a defense against decisions based on national origin. (See Exhibit 7.2, “Realities about National Origin Discrimination.”) Notwithstanding its complexity, however, complaints to the EEOC based on alleged national origin discrimination have been on the rise since 1997. Between 1997 and 2015, complaints of discrimination on the basis of national origin grew from page 3276,712 to 9,438, though the number of national origin

complaints being filed has declined a bit from its peak in 2011, when it was 11,833.8 The link between these two forms of complaint, particularly as they pertain to Muslim and Arab-Americans after the attacks of September 11, 2001, is discussed later in the chapter.

Exhibit 7.2 Realities about National Origin Discrimination

1. “Citizenship” and “national origin” are not syn-onymous.

2. No matter the national origin of a restaurant, it likely will still be required strictly to abide by Title VII non-discrimination principles in hiring its waitstaff.

3. The EEOC considers English-only rules applied at all times presumptively discriminatory, although courts have not always agreed.

Regulatory Overview

LO2

The national origin discrimination protection offered by Title VII is similar to that of gender or race and is used somewhat synonymously with ethnicity, though they are distinguishable. That is, it is an unlawful employment practice for an employer to limit, segregate, or classify employees in any way that would deprive them of employment opportunities because of national origin. An employer may not group its employees on the basis of national origin, make employment decisions on that basis, or implement policies or programs that, though they appear not to be based on an employee’s or applicant’s country of origin, actually affect those of one national origin differently than those of a different group. national origin discrimination protection It is unlawful for an employer to limit, segregate, or classify employees in any way on the basis of national origin that would deprive them of the privileges, benefits, or opportunities of employment.

An employee may successfully claim discrimination on the basis of national origin if it is shown that

1. She or he is a member of a protected class (i.e., articulate the employee’s national origin).

2. She or he was qualified for the position for which she or he applied or in which she or he was employed.

3. The employer made an employment decision against this employee or applicant.

4. The position was filled by someone who was not a member of the protected class.

Each of the above will be discussed in turn.

Member of the Protected Class In connection with the first requirement, what is meant by national origin? While the term is not defined in Title VII, the EEOC guidelines on discrimination define national origin discrimination as “including, but not limited to, the denial of equal employment opportunity because of [an applicant’s or employee’s] or his or her ancestor’s place of origin; or because an applicant has the physical, cultural, or linguistic characteristics of a national origin group.” national origin Individual’s, or her or his ancestor’s, place of origin (as opposed to citizenship), or physical, cultural, or linguistic characteristics of an origin group.

Note that the law provides protection against discrimination based only on country of origin, not on country of citizenship.9 Title VII protects employees who are not U.S. citizens from employment discrimination based on the categories of the Act, but it does not protect them from discrimination based on their status as immigrants, rather than as U.S. citizens. That is, it protects a Somali woman from gender discrimination, but not from discrimination on the basis of the fact that she is a Somali citizen, rather than an American citizen. The issue of citizenship as it relates to national origin is discussed later in this chapter.

page 328Many national origin cases under Title VII involve claims of discrimination by those

who were not born in America; however, American-born employees also are protected against discrimination on the basis of their American origin. For example, a court has held that the employer’s conscious decision about whom to dismiss on the basis of the national origin of its employees (in an effort to promote “affirmative action”) was not acceptable because that method tended to disfavor Americans, in favor of other nationalities.

In addition to national origin encompassing the employee’s place of birth, it also includes ethnic characteristics or origins, as well as physical, linguistic, or cultural traits closely associated with a national origin group. For instance, courts have held that Cajuns and people of Romani descent (sometimes referred to by the more derogatory term, “gypsy”10) are protected under Title VII.11 In addition, the EEOC confirms that other ethnic groups, such as Latinx, Arabs, and Kurds, are also protected national origin groups.12 It also may serve as the basis for a national origin discrimination claim if the employee

• Is identified with or connected to a person of a specific national origin, such as when someone suffers discrimination because he or she is married to a person of a certain ethnic heritage.

• Is a member of an organization that is identified with a national group.

• Is a participant in a school or religious organization that is affiliated with a national origin group.

• Has a surname that is generally associated with a national origin group.

• Is perceived by an employer to be a member of a particular national origin group, whether or not the individual is in fact of that origin.

Qualification/BFOQs The second factor that must be present for an employee to claim national origin discrimination is that the applicant or employee is qualified for the position. That is, the claimant must show that he or she meets the job’s requirements.

Contrary to situations involving disability or religion, the employee in a national origin case must show that she or he is qualified for the position without the benefit of accommodation. No

accommodation of one’s national origin is required of employers. For example, while an employer would be required to reasonably accommodate an employee’s religious attire, there is no similar responsibility to accommodate an employee’s attire of national origin, such as traditional African dress, unless it can be shown to overlap with his or her religion.

The employer may counter the employee’s claim that she or he is otherwise qualified by

showing that national origin is actually a bona fide occupational qualification (BFOQ) (discussed in Chapter 3) for the job. In other words, the employer can explain why a specific national origin is necessary for the position applied for—why that national origin is a legitimate job requirement and is reasonably necessary for the employer’s particular business.

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It is important to note that customer, client, or co-worker discomfort or preference in terms of

national origin may not be relied upon by the employer. But, as you’ll see in the Espinoza v. Farah Mfg. Co. case at the end of the chapter, citizenship is an entirely different story.

English Fluency and Speaking Other Languages in the Workplace

LO3

Some employers choose to maintain policies requiring all employees either to be fluent in English or to speak only English while in the workplace, even when employees are speaking only among themselves. Employers have also raised the question of what to do if an employee’s accent interferes with his or her job performance. Fluency requirements, “English-only” policies, and accent rules all raise slightly different issues, but all are becoming increasingly relevant in today’s diverse workforce. In 2014, 20.9 percent of the U.S. population five years and older spoke a language other than English in the home. Over 25 million Americans, or nearly 9 percent of the U.S. population aged five and over, spoke English less than “very well.”13

Diversity in the workplace brings many benefits, including a greater breadth of skills and life experiences among the workforce. It also may present unique challenges to employers, particularly in the form of poor communication among those who may prefer to speak in their native tongue, which might be not English but Spanish, Hindi, or Tagalog. While such communication problems may cause confusion, fluency requirements may not be appropriate for some jobs, even within the same company, and severe English-only restrictions may create frustration and resentment among employees for whom English is a second language. To avoid alienating these employees, to ensure realistic and reasonable job qualifications, and to decrease the risk of litigation, employers should not permit managers to arbitrarily impose language restrictions.14

A job requirement that an employee must be fluent in English is legal if fluency is required to perform the work effectively. The EEOC has pointed out that the degree of fluency required varies from job to job, so blanket fluency requirements that apply equally to the customer service department and to warehouse workers might not be legal. To best be protected from possible Title VII liability, the employer must be able to show that English fluency is required for the job and that the requirement is necessary to maintain supervisory control of the workplace. Perhaps it may be required of an employee who has significant communication with clients, or it may be

justified as a BFOQ where the employee could not speak or understand English sufficiently to perform required duties.

Similarly, because an employee’s accent is often associated with his or her national origin, courts closely examine employment decisions based on accent (since it may be used as a proxy for national origin discrimination). However, an employer is permitted to choose not to hire or promote an employee to a position that requires clear oral communication in English if the employee’s accent substantially affects his or her ability to communicate clearly. For example, where a teacher was fluent in English but spoke with such a thick accent that her students had a difficult time understanding her, her discharge was upheld. On the page 330other hand, if the

employee is in a job requiring little speaking and the employee can understand English, the requirement may be more difficult to defend—for instance, requiring English fluency for a janitor who talks little, has little reason to speak to carry out the duties of the job, and who understands what is said to him or her. In fact, in In re Rodriguez,15 the court found that an employment decision based on an employee’s accent and speech characteristics (where due to the employee’s national origin) was direct evidence of employment discrimination sufficient to shift the burden of proof to the employer to articulate a legitimate non-discriminatory reason for the decision that the employer “would have terminated the [employee] had it not been motivated by discrimination.” The court affirmed that “accent and national origin are inextricably intertwined.”

Additionally, in Guimaraes v. SuperValu, Inc., the Court found that even comments ridiculing an employee’s accent could be relevant evidence of national origin animus.16

Unlike the teacher above, in Scenario 1, Kayla is considering decreasing Alex’s responsibilities

due to his foreign accent, rather than terminating him. However, like the teacher, it is quite possible in this scenario to show that speaking clear English is a BFOQ, especially if it can be shown that customers have been complaining that they cannot understand him.

A closely related question is whether employers are permitted to implement policies requiring employees to speak only English in the workplace. These policies may be based in well- intentioned employer efforts aimed at decreasing workplace tension where multiple languages have segregated a workplace, improving employees’ English, or promoting a safe and efficient workplace. Though the U.S. Supreme Court has not yet ruled on the lawfulness of English-only policies in the workplace, lower courts have gone both ways on this issue.17 Some have held the policy to be discriminatory, excessively prohibitive, and a violation of Title VII. Others have held that it is not national origin discrimination if all employees, regardless of ancestry, are prohibited from speaking anything but English on the job and that there is no statutory right to speak other languages at work. It has been held that the right to speak one’s native language when the employee is bilingual is not an immutable characteristic that Title VII protects.

Garcia v. Spun Steak Co., included at the end of the chapter, is one of the most important cases on the subject. In Garcia, the Ninth Circuit considered an employer’s policy that required bilingual workers to speak only English while on the job, though it allowed other languages to be spoken during breaks and employees’ personal time. Spanish-speaking employees argued that the policy was discriminatory because it denied them the ability to express their cultural heritage, denied them a privilege of employment enjoyed by speakers of English as a first language, and created an atmosphere of inferiority and intimidation. The court rejected these arguments, stating that Title VII “does not protect the ability of workers to express their cultural heritage at the workplace,” but is “concerned only with disparities in the treatment of workers.” The court further argued that “Title VII is not meant to protect against rules that merely inconvenience some employees, even if the inconvenience falls regularly on a protected class.”

page 331In contrast, in EEOC v. Premier Operator Servs., Inc.,18 the district court struck down

an English-only policy that required all conversations on workplace premises, including those during breaks or personal time, to be in English. The court found that the defendant presented

insufficient evidence to establish that there was any business necessity for the policy as implemented. The court noted that, even if it were “to assume that office ‘harmony’ [was] properly considered to be a business necessity that would justify an English-only policy,” there was no credible evidence on the record that there was any discord among employees so as to necessitate a language-restrictive policy. The court therefore concluded that “the speak English-only policy as implemented and enforced . . . was a tool by which discrimination based on national origin was effected.”

In general, though, English-only rules have been upheld. In Pachero v. New York Presbyterian Hospital,19 an English-only requirement was implemented in response to complaints from patients who believed that Spanish-speaking employees were talking about them in a language that they did not understand. An employee brought suit alleging national origin discrimination under theories of a hostile work environment, disparate treatment, and disparate impact. The hospital argued that its English-only requirement was both limited and a business necessity: it helped facilitate better staff-patient relationships and employees were permitted to speak Spanish (or any other language) when patients were not present. The court agreed and dismissed the plaintiff’s case. The courts have also summarized the types of business necessity justifications that have been upheld: In EEOC v. Sephora USA,20 an English-only policy was justified as a means of improving communication with customers; the court in Montes v. Vail Clinic, Inc.,21 held an English-only policy was necessary to ensure safety for hospital patients; the court in Roman v. Cornell University22 found an English-only rule was justified to avoid or lessen interpersonal conflicts between employees; the court in Long v. First Union Corp. of Virginia23 held that an English-only policy was justified to ensure the business runs smoothly and efficiently; and the court in Tuffa v. Flight Servs. & Sys. Inc.24 found that a policy requiring employees to read in English does not discriminate on its face and the requirement that employees pass a written test in English is not direct evidence of discrimination.

However, challenges to English-only rules are increasing, and some have resulted in large awards and settlements to affected employees. In 2001, a class-action suit filed by eighteen Latinx housekeepers against the University of Incarnate Word for requiring them to speak English at all times was settled for $2.44 million.25 In 2012, an acute care hospital in California agreed to pay $975,000 to settle a lawsuit filed by the EEOC on behalf of 70 Filipino-American hospital workers, who claimed to have been harassed, humiliated, and subject to undue surveillance and discipline in relation to an English-only policy.26

The EEOC takes the position that English-only rules applied at all times or only applied to certain foreign speakers are presumptively discriminatory, although the courts have not always agreed with that approach.27 When a rule is applied only at certain times, the EEOC recommends that it be justified by a business purpose in order to avoid discrimination claims. Rules applied during work time only are less likely to be considered harassment and more likely to page 332show

a business purpose. When an employer is considering an English-only rule, it should take into consideration the legal implications as well as the fact that such a rule can create an atmosphere of inferiority, isolation, and intimidation that may result in a discriminatory work environment.

According to the EEOC, an employer may justify the business necessity of an English-only rule

• For communications with customers, co-workers, or supervisors who only speak English.

• In emergencies or other situations in which workers must speak a common language to promote safety.

• For cooperative work assignments in which the English-only rule is needed to promote efficiency. For example, a taxi company was permitted to maintain an English-only policy for main office employees to prevent miscommunications during dispatch.28

• To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with co-workers or customers.

Although in Garcia, the court ruled against the EEOC’s guidelines, it did point out that an

English-only policy may be discriminatory if it “exacerbate[s] existing tensions, combine[s] with other discriminatory behavior to contribute to discrimination, [or is] enforced in a ‘draconian manner’ [such] that the enforcement itself amounts to harassment.”29 In 2006, however, the EEOC’s position was supported in Maldonado v. City of Altus,30 where the court held that a hostile work environment might exist based solely on the employer’s adoption of an English-only policy in the workplace, though this case was later overruled on other grounds. A few other district courts have accepted and applied the guidelines.31

An employer, therefore, may properly enforce a limited, reasonable, and business-related English-only rule against an employee who can readily comply. However, if the practice of requiring only English on the job is mere pretext for discrimination on the basis of national origin (i.e., the employer imposes the rule in order to discriminate, or the rule produces an atmosphere of ethnic oppression), such a policy would be illegal. This might be the case where an employer requires English to be spoken in all areas of the workplace, even on breaks or in discussions between employees during free time.

Adverse Employment Action and Dissimilar Treatment The third and fourth requirements will be addressed together because they often arise together. The third element of the prima facie case for national origin discrimination is that the employee has suffered an adverse employment action by the employer’s employment decision. This may include a demotion, termination, or removal of privileges afforded to other employees. The adverse effect may arise either because employees of different national origin are treated differently page 333(disparate treatment) or because the policy, though neutral, adversely impacts

those of a given national origin (disparate impact). adverse employment action Any action or omission that takes away a benefit, opportunity, or privilege of employment from an employee.

The fourth element requires that the employee show that her position was filled by someone who is not a member of her protected class, or, under other circumstances, that those who are not members of her protected class are treated differently than she. For example, assume an Asian employee is terminated after the third time he is late for work. There is a rule that employees will be terminated if they are late for work more than twice. However, the employer does not enforce the rule against the other employees, only against Asian employees. This would be a case of disparate treatment because the employee could show that he was treated differently from other employees who were similarly situated but not members of his protected class.

Alternatively, disparate impact has been found, for example, with physical requirements such as minimum height and weight. Such requirements may have a disparate impact on certain national origin groups as a result of genetic differences among populations and these requirements disproportionately precluded the groups from qualifying for certain jobs. These requirements violate Title VII and must be justified by business necessity. For instance, a requirement that a firefighter be at least 5 feet 7 inches tall was found to be unlawful where the average height of an Anglo man in the United States is 5 feet 8 inches, Spanish-surnamed American men average 5 feet 4½ inches, and females average 5 feet 3 inches. On the other hand, if the rule can be shown to be a business necessity, it may be allowed (such as some English fluency requirements, as discussed earlier).

Once the employee has articulated a prima facie case of discrimination based on national

origin, the burden falls to the employer to identify either a BFOQ or a legitimate nondiscriminatory reason (LNDR) for the adverse employment action. In Vega v. Hempstead Union Free Sch.

Dist.,32 included at the end of the chapter, you will have the opportunity to evaluate the bona fide occupational qualifications to teach a bilingual language class, among other questions relating to the burden of proof in a discrimination case based on national origin. (For more detailed discussions of prima facie cases, BFOQs, and LNDRs, please see Chapter 2.)

Harassment on the Basis of National Origin

In addition to providing protection against traditional types of discrimination, Title VII also protects employees against harassment on the basis of national origin. Unfortunately, claims of national origin harassment have been on a sharp increase, rising from 6,712 charges filed with the EEOC in 1997 to 9,483 in 2015. In fact, in 2015, 10.6 percent of all claims filed with the EEOC included a claim for national origin discrimination.33

Not all harassment is prohibited under Title VII, however. Similar to claims of sexual harassment, claims of national origin harassment are only actionable if the harassment was so severe or pervasive that the employee reasonably finds the workplace to be hostile or abusive. Common concerns include ethnic slurs, workplace graffiti, or other offenses based on traits such as an employee’s birthplace, page 334culture, accent, or skin color. In considering employer

liability, the court will look to whether the conduct was physically threatening or intimidating, its severity, pervasiveness throughout the working environment, whether a reasonable person would find the conduct offensive and/or hostile, and how the employer responded. The EEOC offers the following examples of conduct that do and do not satisfy this review:34

Offensive Conduct Based on National Origin That Violates Title VII

Muhammad, an Arab-American, works for XYZ Motors, a large automobile dealership. His coworkers regularly call him names like “camel jockey,” “the local terrorist,” and “the ayatollah,” and intentionally embarrass him in front of customers by claiming that he is incompetent. Muhammad reports this conduct to higher management, but XYZ does not respond. The constant ridicule has made it difficult for Muhammad to do his job. The frequent, severe, and offensive conduct linked to Muhammad’s national origin has created a hostile work environment in violation of Title VII.35

Offensive Conduct Based on National Origin That Does Not Violate Title VII

Horia, a Romanian emigrant, was hired by XYZ Shipping as a dockworker. On his first day, Horia dropped a carton, prompting Bill, the foreman, to yell at him. The same day, Horia overheard Bill telling a coworker that foreigners were stealing jobs from Americans. Two months later, Bill confronted Horia about an argument with a coworker, called him a “lazy jerk,” and mocked his accent. Although Bill’s conduct was offensive, it was not sufficiently severe or pervasive for the work environment to be reasonably considered sufficiently hostile or abusive to violate Title VII.

An employer has the responsibility to prevent and correct any national origin harassment that may take place within its working environment. However, that responsibility is limited to occurrences of harassment of which the employer “knows or should have known.” So, if an employee is consistently subject to abuse but never tells anyone about it (e.g., her or his employer) and the supervisors at her or his workplace have no other way of knowing the abuse is taking place, the employer may not be liable. In addition, if the employer finds out about the harassment and does take reasonable steps to prevent and/or correct it, the employer might also be relieved of any liability.

Cortezano v. Salin Bank & Trust Co.36 is included in this chapter to demonstrate that many forms of discrimination and harassment may not satisfy a prima facie case under Title VII. On the one hand, it is important for workers to know that they are protected, even if the adverse working conditions might not fit the traditional model under Title VII, and for employers to ensure that they are diligent in their training and sensitivity to unique cross- (and even within) cultural phenomena. On the other hand, some forms of discrimination—such as discrimination based upon citizenship status, or “alienage,” as distinct from the specific nation of origin—are not prohibited under Title VII. In addition, the law remains unsettled regarding Title VII’s application to cases of discrimination against a worker based on the national origin of the worker’s spouse or partner.

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Guidelines on Discrimination Because of Religion or National Origin

Federal agencies or employers who enter into contracts with a government agency are required by the Guidelines on Discrimination Because of Religion or National Origin to ensure that individuals are hired and retained without regard to their religion or national origin.37 These guidelines impose on the federal contractor an affirmative obligation to prevent discrimination. The provisions include the following ethnic groups: Eastern, Middle, and Southern European ancestry, including Jews, Catholics, Italians, Greeks, and Slavs. However, Blacks, Spanish- surnamed Americans, Asians, and Native Americans are specifically excluded from the guidelines’ coverage because of their protection elsewhere in Office of Federal Contract Compliance Rules. Guidelines on Discrimination Because of Religion or National Origin Federal guidelines that apply only to federal contractors or agencies and that impose on these employers an affirmative duty to prevent discrimination.

The guidelines provide that, subsequent to a review of the employer’s policies, the employer should engage in appropriate outreach and positive recruitment activities to remedy existing deficiencies (i.e., affirmative action). Various approaches to this outreach requirement include the following:

1. Internal communication of the obligation to provide equal employment opportunity without regard to religion or national origin.

2. Development of reasonable internal procedures to ensure that the equal employment policy is fully implemented.

3. Periodic informing of all employees of the employer’s commitment to equal employment opportunity for all persons, without regard to religion or national origin.

4. Enlistment of the support and assistance of all recruitment sources.

5. Review of employment records to determine the availability of promotable and transferable members of various religious and ethnic groups.

6. Establishment of meaningful contacts with religious and ethnic organizations and leaders for such purposes as advice, education, technical assistance, and referral of potential employees (many organizations send job announcements to these community groups when recruiting for positions).

7. Significant recruitment activities at educational institutions with substantial enrollments of students from various religious and ethnic groups.

8. Use of the religious and ethnic media for institutional and employment advertising.

Middle Eastern Discrimination after September 11, 2001, and in the Era of ISIS In the aftermath of September 11, 2001, and following other terrorist attacks since that time by extremist groups such as the Islamic State,38 hate crimes against individuals of Middle Eastern descent have increased dramatically. Workplace discrimination complaints brought by Muslims and those of Middle Eastern descent also have risen sharply. In the initial months after 9/11, the EEOC saw a 250 percent increase page 336in the number of religion-based discrimination

charges involving Muslims. Although religious discrimination complaints by Muslims dropped in 2003 and 2004, the number then spiked upward again for six of the following seven years. In December 2015, the chairperson of the EEOC stated that employers needed to “remain vigilant” in light of then-recent terrorist attacks and the EEOC released new guidance tools at that time increasing awareness of religious and national origin discrimination against people who are (or are perceived to be) Muslim.39

Although Muslims comprise just over 2 percent of the U.S. workforce, 19.6 percent of all complaints submitted to the EEOC from 2009 to 2015 came from Muslims.40 Charges of national origin discrimination based on Middle Eastern descent increased from 306 to 747 between 2008 and 2011.41 The EEOC even created a special classification, “Code Z,” to designate complaints of “backlash discrimination” from individuals who are—or are perceived to be—Muslim, Sikh, Arab, Middle Eastern, or South Asian.42 Opening Scenario 2 presents an example of one such incident.

The U.S. Department of Justice (DoJ) is charged with combating civil rights violations against

Arab, Sikh, and South-Asian Americans, as well as those who are perceived to be members of those groups. The group is battling these crimes and acts of discrimination by identifying cases involving bias crimes, conducting outreach, and working with other DoJ offices. As of August 2015, the office had helped to respond to more than 1,000 incidents of bias crime alone, resulting in federal charges against 54 defendants, with 48 convictions. In addition, DoJ attorneys have worked with state and local prosecutors in 150 non-federal criminal prosecutions.43 In one such case, the Justice Department’s Civil Rights Division sued the New York Metropolitan Transit Authority under Title VII for discriminating against Muslim and Sikh employees by refusing to permit them to wear head scarves and turbans while working in public-contact positions. The MTA began enforcing this policy in 2002 and took various actions against Muslim and Sikh employees, including transferring them to positions where they would not have contact with the public. The case was settled in May 2012, when the MTA agreed to pay $184,500 in damages to eight employees and to adopt policies to accommodate the religious practices of employees.44

Issues of concern and questions that have arisen from these cases have centered on a few key issues. Employers may not treat workers differently because of their religious attire, such as a Muslim hijab (head scarf). In fact, in 2015, the Supreme Court ruled 8–1 in favor of a Muslim woman who was denied a job at an Abercrombie & Fitch store in Tulsa, Oklahoma, because she wore a headscarf. This was after an interviewer had recommended the woman for hire for a sales job. Abercrombie’s dress code prohibits salespeople from wearing caps. The Court held that a job applicant seeking to prove a Title VII disparate treatment claim need only show that the need for a religious accommodation was a motivating factor in the prospective employer’s adverse decision.45 Employers also need to be sensitive to possible instances of ethnic harassment, especially that which may unfairly relate to security concerns. Finally, employers may not require

individuals of one ethnic background to undergo more significant security checks page 337or other

preemployment requirements unless all applicants for that position are required to do so. In the post–September 11 era, employers actually have a unique opportunity to raise

awareness of and sensitivity to cultural diversity in the workplace. Elmer Johnson, former head of the Aspen Institute, which seeks to improve corporate leadership, has stated that corporate leaders should inspire employees and inculcate a sense of shared values.46 Perhaps this can be achieved by reaching out to employees of Middle Eastern descent who may be experiencing fear of discrimination. Since September 11, American Muslims and those of Middle Eastern descent report experiencing increased suspicion and hostility, including verbal harassment, violent threats or intimidation, physical assault, religious profiling, and discrimination in education, employment, and housing.47 Remaining sensitive to such employees’ concerns in job assignments and work- related activities is key to their effective resolution. “Quick fixes,” such as compulsory transfer to another position, must be avoided. To further promote a healthy environment at work, employers also should consider the post–September 11 issues in diversity training.

It should be noted that, under certain limited circumstances, employers may reach decisions on the basis of national origin by relying on security requirements, where the security requirements are imposed “in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President.”48

Citizenship and the Immigration Reform and Control Act

LO5

As mentioned earlier in this chapter, Title VII’s prohibition against discrimination on the basis of national origin does not necessarily prohibit discrimination on the basis of citizenship; this only occurs where citizenship discrimination “has the purpose or effect” of national origin discrimination or where it is pretext for national origin discrimination. In fact, non-U.S. citizens who are legally residing in and permitted to work in the United States) are often restricted from access to certain government or other positions by statute. For instance, in Foley v. Connelie,49 the Supreme Court held that a rule requiring citizenship was valid in connection with certain nonelected positions held by officers who participate directly in the formulation, execution, or review of broad public policy. This is called the “political function” exception for positions that are intimately related to the process of self-government. In cases where the restricted position satisfies this exception, discrimination against non-U.S. citizens who are legally allowed to reside and work in the United States is permitted. Espinoza v. Farah Manufacturing Co.,50 included for your review, is the seminal case by the U.S. Supreme Court in the area of discrimination on basis of citizenship.

Another area where questions have arisen between Title VII and discrimination based on citizenship emerged in 2017 when U.S. President Trump announced his policy to buy American and hire American.51 With no other context, this policy had the appearance of condoning discrimination in favor of U.S. citizens against all others. page 338However, the language of the

Executive Order instead proposes reforms designed to promote employers to hire American citizens or anyone else legally authorized to work in the United States under current immigration laws. Coupled with other legislation introduced by the same administration, there have been concerns at time of publication about the long-term impact on discrimination in employment based on national origin. We will explore that impact in our next edition.

LO6

The Immigration Reform and Control Act (IRCA), in contrast to Title VII, does prohibit employers in certain circumstances from discriminating against employees on the basis of their citizenship or intended citizenship. However, the IRCA makes it illegal for employers to knowingly hire those not legally authorized for employment in the United States. The IRCA also allows discrimination in favor of U.S. citizens as against legal “aliens” (non-U.S. citizens legally residing in the United States). While these individuals are guaranteed various rights pursuant to the Constitution, the law confers certain benefits only to those who are citizens and not to those who are legal residents but non-U.S. citizens. For instance, while rights pursuant to the National Labor Relations Act and Fair Labor Standards Act are provided to citizens and non-citizens, alike, some government-provided benefits are limited to citizens. Also, the IRCA allows employers to enact a preference for U.S. citizens, if the applicants are all equally qualified. Employers may not act on this preference if the foreign national is more qualified for the position than the U.S. citizen.

Employers not subject to Title VII’s prohibitions because of their small size may still be sufficiently large to be covered by IRCA’s antidiscrimination provisions; those employers with 4 to 14 employees are prohibited from discriminating on the basis of national origin; and employers with 4 or more employees may not discriminate on the basis of citizenship.

Two acceptable BFOQs are statutorily allowed under IRCA:

1. English-language skill requirements that are reasonably necessary to the normal operation of the particular business or enterprise.

2. Citizenship requirements specified by law, regulation, executive order, or government contracts, along with citizenship requirements that the U.S. attorney general determines to be essential for doing business with the government.

The main difference between a proof of discrimination under Title VII and IRCA is that, in proving a case of disparate impact, Title VII does not require proof of discriminatory intent, while IRCA requires that the adverse action be knowingly and intentionally discriminatory. Therefore, innocent or negligent discrimination is a complete defense to a claim of discrimination under IRCA.

For example, consider a hypothetical firm that is interviewing for customer service representatives in their large order-processing department. They require all applicants to speak fluent English. Ching Lee applied and was denied employment due to his accent, which some thought was heavy. It turns out that only 3 applicants out of 20 of Asian descent obtained jobs at the firm. The employer explained to Lee that not many Chinese applicants apply and those who do have had strong accents. It claims that customers have complained of not understanding page

339these individuals. Does Lee have a claim under Title VII? Under IRCA? Without evidence of

knowledge and intentional discrimination, the employer could survive the IRCA claim if Lee could not prove that it discriminated against him intentionally; however, such knowledge and intention are not required under Title VII and Lee might prevail in that case.

Undocumented Workers

As one might imagine, identifying the precise number of undocumented immigrants in the United States is not an exact science because of fear that undocumented immigrants have in being identified (and therefore counted). In 2007, approximately 12 million undocumented immigrants were living in the United States, and roughly two-thirds of those individuals (8.4 million) comprised 5 percent of the nation’s workforce. By 2010, the number of residents seemed to have dropped to around 11.2 million with 8 million workers who still comprised 5.2 percent of the workforce.52 As of 2017, reports varied widely between 11 and 15 million undocumented immigrants living in the United States.53 However, the Pew Research Forum reports that the number of undocumented

immigrants has fluctuated little from the 11 million mark in the past half a decade because the number of new unauthorized immigrants is roughly equal to the number who are deported, leave on their own, convert to legal status, or die.54 The decline and later leveling off of undocumented immigrants have been attributed to some combination of a weak U.S. economy and increased border enforcement.55

A section of the IRCA was established to correct an unfair double standard that had previously prohibited these individuals from working in the United States but permitted employers to hire them. In other words, originally, the unauthorized worker had committed a legal wrong, but the employer who hired the worker had not! Among other things, IRCA now makes it unlawful for any person knowingly to hire, recruit, or refer for a fee any non-citizen who is not authorized to work. “Knowingly” includes that which “may be fairly inferred through notice of certain facts and circumstances which would lead a person . . . to know about a certain condition.”56 Employers are thereby denied the “ostrich” defense where they simply ignore obvious evidence to a violation. Employers are instead required to verify all newly hired employees by examining documents that identify the individual and show his or her authority to work in the United States using a Form I-9. (See Exhibit 7.3, “INS Employment Form and Document List.”) Further, employers, recruiters, and those who refer individuals for employment are required to keep records pertaining to IRCA requirements. (For a list of employer responsibilities under IRCA, see Exhibit 7.4, “Employer Responsibilities under IRCA.”) A violation of this provision can mean personal liability for corporate officers, so it is not a requirement to be taken lightly.

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Exhibit 7.3 INS Employment Form and Document List

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Exhibit 7.4 Employer Responsibilities under IRCA: Do’s and Don’ts

Completion of Form I-9, Section 1

DO:

• Employers must ensure that new employees complete Section 1 in full before the end of their first day of work. This requirement applies to all workers hired to perform labor or services in return for wages or other remuneration.

DO NOT:

• Do not require only certain employees to comply before the end of their first day of work; this requirement mus be enforced across the board.

• Do not require employees to provide a Social Security number on Form I-9; providing a Social Security number is voluntary for all employees, unless the employer is participating in E-Verify. Do not even ask an employee to provide you with her or his Social Security number or with a specific document that contains the number within it, under any circumstances. To do so may constitute unlawful discrimination.

Completion of Form I-9, Section 2

DO:

• Employers must examine proper documentation from employees (one from List A or List B, and also with one from List C). Employers must accept the documents provided if they “reasonably appear to be genuine.” This examination must be completed by the end of the new employee’s third day of work. Employers must refuse acceptance of documents that do not reasonably appear to be genuine. If an employee is hired for fewer than three business days, both Sections 1 and 2 must be fully completed by the employee’s first day of work.

DO NOT:

• Do not accept copies or faxes of documents. (Note: The only exception is for a certified copy of a birth certificate.)

• Do not accept expired documents.

• Do not specify which document(s) an employee must present, or require more or different documentation than the minimum necessary to avoid an unfair immigration-related employment practice.

• Do not require completion of the I-9 in the pre-offer stage.

Genuineness of documents and reporting

DO:

• Ask for help: If a document does not reasonably appear to be genuine, employers may ask for assistance from INS. If a document that reasonably appeared to be genuine is in fact not genuine, the employer will not be held responsible by the INS.

Discovering unauthorized employees

DO:

• Employers are permitted to question the employee and provide another opportunity for review of proper I-9 documentation.

DO NOT:

• If the employee is not able to provide satisfactory documentation after an opportunity to do so, the employer should not retain the employee.

• Do not make threats of reporting the employee to the INS in retaliation for discrimination complaints or other protected activity.

Discovering false documentation

DO:

• If an employee gains employment with false documentation but then later obtains and presents proper work authorization, the employer should correct the relevant information on Form I-9.

• Employers should know that personnel policies regarding provision of false information to the employer may apply.

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DO NOT:

• Employers do not have to terminate an employee who presents subsequent work authorization.

“Green cards”

DO:

• Employers should be aware that “Resident Alien” cards, “Permanent Resident” cards, “Alien Registration Receipt” cards, and Forms I-551 grant permanent residence in the United States, but proof of this status may expire and cardholders must obtain new cards.

• Employers should check that unexpired “green cards” used for Form I-9 appear genuine and establish identity of the cardholder.

DO NOT:

• Employers should not accept an expired card for purposes of Form I-9.

• Employers are neither required nor permitted to reverify the employment authorization of non-US citizens who have presented one of these cards to satisfy I-9 requirements.

Social Security cards

DO:

• For purposes of payroll, employers may accept SSA cards that bear the restriction “Not Valid for Employment” from employees who satisfy I-9 requirements. Often those who initially got such a restricted SSA card proceed to permanent residence or U.S. citizenship.

DO NOT:

• Employers must not accept restricted SSA cards for purposes of I-9 requirements.

• Employers must not accept Individual Taxpayer Identification numbers for purposes of I-9 requirements.

Retention of I-9 forms

DO:

• Employers must retain an employee’s Form I-9 for the duration of employment and the longer of either three years past the hire date or one year past the termination date. Forms I-9 can be retained either on paper or electronically.

DO NOT:

• While not prohibited from doing so, private employers should not store I-9 records in employee personnel files.

Official inspection of I-9 records

DO:

• All I-9 forms of current employees must be made available in their original or electronic form to an authorized official upon request. The official will give employers at least three days’ advance notice before the inspection.

DO NOT:

• Employers should not leave preparation for such an inspection to the last minute. Storing I-9 records in employee personnel files makes this task unduly difficult.

Source: Adapted from U.S. Citizenship and Immigration Services, Handbook for Employers. Instructions for Completing Form I-9 (Employment Eligibility Verification Form), April 30, 2013.

In 2007, in an effort to further implement these provisions, the Department of Homeland Security (DHS) announced that employers would be required to terminate all workers who used false social security numbers, otherwise known as a “no-match” (based on the 140,000 no-match letters received annually by employers from the Social Security Administration notifying them that the names and social security numbers of employees do not match the agency’s records). Employers were to have 90 days in which to reconcile the no-match letters; if they could not, they were going to be forced to fire the worker or face fines of up to $10,000. With an estimated 6 million unauthorized non-U.S. citizens employed at that time, the impact on both the workforce and the economy would have been monumental, notwithstanding the claim by the Social Security Administration that 12.7 million of its records contained page 345errors that could lead to

terminations.57 The impact in the agricultural industry alone would have been overwhelming, where estimates by the growers’ associations placed undocumented workers at about 70 percent.58 However, only five days before its implementation, a California federal judge issued an order blocking the implementation of the no-match rule based on a suit filed jointly by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union, and the National Immigration Law Center. In late 2007, the Bush administration suspended its defense of the rule, preferring to go back to the drawing board in order to respond to the judicial concerns.

In 2008, the DHS attempted to reform the program; but the proposed amendments were never enforced. When he took office in early 2009, President Obama’s Secretary of Homeland Security ordered a review of the no-match policy, which the DHS rescinded later that same year. However, in 2011, the Social Security Administration (SSA) again began sending out “no-match letters” to employers. These letters are written notice issued by the SSA to an employer advising the employer that the name and Social Security Number combination reported by the employer for one or more employees does not “match” the SSA’s records.

The DoJ offers a list of Dos and Do Nots for employers who receive a no-match letter.59

DO:

1. Recognize that no-matches can result because of simple administrative errors.

2. Check the reported no-match information against personnel records.

3. Inform the employee of the no-match notice.

4. Ask the employee to confirm that his or her name and SSN is accurately reflected in employment records.

5. Advise employee to contact the SSA to correct and or update his or her SSA records.

6. Give the employee a reasonable period of time to address a reported no-match with the local SSA office.

7. Follow the same procedures for all employees regardless of citizenship status or national origin.

8. Periodically meet with or otherwise contact employee to learn and document the status of the employee’s efforts to address and resolve the no-match.

9. Review any document the employee chooses to offer showing resolution of the no-match.

10. Submit any employer or employee corrections to the SSA.

DO NOT:

1. Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.

2. Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.

3. page 346Attempt to immediately re-verify the employee’s employment eligibility by requesting the

completion of a new Form I-9 based solely on the no-match notice.

4. Follow different procedures for different classes of employees based on national origin or citizenship status.

5. Require the employee to produce specific I-9 documents to address the no-match.

6. Require the employee to provide a written report of SSA verification.

Another form of enforcement used by the government is to investigate employer’s compliance with the Form I-9 rules. Under federal law, a Form I-9 (Employment Eligibility Verification) must be filed for every new employee regardless of citizenship, and it must be retained for three years after the date of hire or one year after the date of discharge. (See Exhibit 7.3.) Once an employer receives a Notice of Inspection from the Immigration and Customs Enforcement (ICE) Division of the Department of Homeland Security, it has three business days to provide the Form I-9s for all employees working for that employer during the stated audit period.

IRCA also established civil and criminal penalties for hiring undocumented immigrants. Employers are selected at random for compliance inspections under the General Administrative Plan (GAP) developed by the Immigration and Naturalization Services (INS), the administrative agency charged with some elements of oversight of IRCA, along with the Immigration and Customs Enforcement (ICE) Division of the Department of Homeland Security. Generally, fines are not imposed for paperwork violations alone or for employment of immigrants whose documentation status was unknown, unless the employer refused to comply or other egregious factors existed. However, enforcement has been increasing dramatically. In fiscal year 2013, ICE conducted 3,127 Notices of Inspection for I-9 audits (up from 1,444 in 2009); criminally charged 452 employers with immigration violations (up from 114 in 2009); issued 637 Final Orders for $15.8 million in fines (up from $1.03 million in 2009); and debarred 277 individuals and businesses (up from 83 in 2009, and more than the total during the Bush Administration).60

While today’s enforcement strategy has shifted to targeting employers who hire undocumented workers, the EEOC’s 1999 “Enforcement Guidance on Remedies Available to Undocumented Workers,” emphasized that workers’ undocumented status does not justify workplace discrimination. The EEOC also set forth that employers’ liability for monetary remedies irrespective of a worker’s unauthorized status promotes the goal of deterring unlawful discrimination without undermining the purposes of IRCA. (Note that this Guidance statement was pulled by the EEOC, but only because of an unrelated issue relating to back pay under the National Labor Relations Board.) The EEOC’s position on available remedies is that unauthorized workers are entitled to the same remedies as any other worker, including back pay and reinstatement. In fact, the Ninth Circuit Court held in a 2004 ruling that discovery regarding the immigration status of plaintiffs in civil rights cases would be generally prohibited since it would otherwise have a page 347chilling effect on filings and it could result in “countless acts of illegal

and reprehensible conduct” being unreported.61 The National Labor Relations Board took a similar position with respect to discrimination based on union activity.

However, in Hoffman Plastic Compounds Inc. v. NLRB,62 the U.S. Supreme Court held that the NLRB could not award back pay to unauthorized workers who had been unlawfully discriminated against for engaging in union-organizing activities. According to the Court, to do so would contravene federal immigration policy embodied in IRCA. Hoffman opens the possibility that back pay will not be available to undocumented workers who have been illegally discriminated against

under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).63 The Court offers an extensive review of the pre-Hoffman history and then discusses important implications in Singh v. Jutla & C.D. & R’s Oil, Inc.64

Undocumented workers are particularly vulnerable to threats to report them to the INS. In every

case in which the employer asserts that the worker is undocumented and the employer appears to have acquired that information after the worker complained of discrimination, the EEOC will determine whether the information was acquired through a retaliatory investigation. If the investigation is retaliatory, the employer will be liable for equitable relief as well as monetary damages without regard to the worker’s actual work status. However, a worker’s undocumented status may serve as a legitimate reason for an adverse employment action, although employers who knowingly employ undocumented workers could not assert this defense in a discrimination claim.65

The Fair Labor Standards Act also protects undocumented workers from abuse. In 2013, several workers, including some undocumented immigrants, sued under the FLSA to recover minimum and overtime wages that the employer refused to pay. In its ruling, the U.S. District Court in New York explained that the text of the FLSA makes it clear that its provisions were “unambiguously” intended to apply to undocumented workers by defining the term “employee” as “any individual employed by the employer.” The court went on to say that the FLSA focuses on back pay as a remedy to ensure that employers do not gain an advantage by violating immigration laws. Thus, under the FLSA, even undocumented immigrants are entitled to the statutory mandated wages for work preformed.66

While the Supreme Court has ruled that undocumented status bars recovery for future wages,67 in a 2009 case, Bailon v. Seok AM No. 1 Corp., the Court again affirmed that the immigration status of employees is irrelevant to claims filed against an employer under the FLSA with respect to work already performed.68

Alternate Basis for National Origin or Citizenship Discrimination: Section 1981 While it is probably the most popular basis for the claim of discrimination based on national origin, Title VII is not the only basis for such a claim. In St. Francis College v. Al-Khazraji,69 the Supreme Court held that 42 U.S.C. § 1981 addressed national page 348origin also. In this case, a professor

and U.S. citizen who was born in Iraq sued under section 1981 alleging discrimination when he was denied tenure. The Court held that, though originally designed to prohibit racial discrimination, the law also applied to “identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” The requirement for section 1981 actions is that employees show they were discriminated against because of their ethnic group (in this case, Arabic) and not just because of their place of origin or religion. In other words, they must show some nexus between their national origin and the major concern of section 1981, their ethnic characteristics or race.

Since St. Francis College, however, several courts have declined to extend section 1981 to more traditional claims of national origin discrimination. In King v. Township of East Lampeter,70 for instance, plaintiffs sought section 1981 protection on the basis of their “Amish ethnic culture.” The court denied the plaintiffs protection on this basis, distinguishing a New York case that found Orthodox Jews were indeed protected under section 1981. The court in King found that Jews are a distinct race for civil rights purposes but did not find the Amish to be a similarly distinct racial group and, without evidence that they have an independent, separate ethnic identity beyond religious observance, they were not protected under section 1981.

Interestingly, the court was persuaded by the contention that one could fail to “practice” Judaism but still be a Jew, while “there is no proof of a similar population of ‘non-practicing’ Amish.”

If projections about the increasing diversity of the U.S. population are anywhere close to accurate, then entry, development, or promotion barriers to diversity of the workplace will likely result in reductions in the business’s effectiveness and productivity. For any business wishing to be on the cutting edge, or simply to effectively use its resources and encourage the best performance from employees, adherence to Title VII’s requirements regarding race and national origin should be viewed as a business imperative and not merely as compliance with the law.

The significance to managers of this protection is that there must be a complete review of all policies that may have an impact on employees or applicants of diverse national origin. As stated above, this impact may not be obvious.

Employers must be cognizant of the varying needs of employees from different backgrounds. For instance, employers may address the perceived problem of bilingual employees in a number of ways, such as offering English-as-a-second-language classes or tutors for semibilingual employees. Not only would this foster less isolation and exclusion of the employee, but it also would create greater confidence and less intimidation when the employees are speaking English. This type of proactive approach may prevent problems in this area before they emerge.

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Management Tips • While a specific national origin may be a BFOQ, make sure that only individuals of that origin can do the specific job since

courts have a high standard for BFOQs in this area.

• An employee may have a claim for national origin discrimination if the worker is simply perceived to be of a certain origin, even if the individual is not, in fact, of that origin.

• While English fluency may be required, you are not allowed to discriminate because of an accent (unless the accent makes it impossible to understand the individual). However, be cautious in evaluating the requirement of the job since there may be positions that do not actually require speaking English.

• An employer may not point to customer, client, or co-worker preference, comfort, or discomfort as the source of BFOQ.

• If you are a federal contractor, remember that you have additional responsibilities to engage in outreach and positive recruitment activities under the Guidelines on Discrimination Because of Religion or National Origin.

• While you are not prohibited from discriminating on the basis of citizenship under Title VII, you may be prohibited from discriminating on this basis under IRCA. Before instituting a policy, consider the implications of both statutes.

• Recognize the concerns of Middle Eastern employees in the post–September 11 era: Include the topic of ethnic diversity in any workplace diversity training. Intervene promptly in incidents of harassment. Remain sensitive and flexible. Refrain from mandatory transfers and other short-term solutions to harassment, intimidation, and discrimination.

Chapter Summary

• Title VII of the Civil Rights Act of 1964, makes it an unlawful employment practice for employers to limit, segregate, or classify employees in any way that would deprive them of employment opportunities based on their national origin.

• An employee or applicant must show the following to be successful in a claim of discrimination based on national origin:

1. The individual was a member of a protected class.

2. The individual was qualified for the position at issue.

3. The employer made an employment decision against the individual.

4. The position was filled by someone not in a protected class.

• “National origin” refers to an individual’s ancestor’s place of origin or physical, cultural, or linguistic characteristics of an origin group.

• An employer has a defense against a national origin discrimination claim if it can show that the national origin is a bona fide occupational qualification. However, in general, this is very difficult to do. An exception to the difficulty is the requirement of English fluency, if speaking English is a substantial portion of the individual’s job.

• No accommodation of a worker’s national origin is required, as it would be in situations involving disability or religion.

• page 350English-only rules applied at all times are presumptively discriminatory, according to the

EEOC. If the employer is considering an English-only rule, it is recommended that the employer should

1. Consider whether the rule is necessary.

2. Determine if the rule is a business necessity.

3. Consider if everybody is fluent in English.

4. Communicate the rule to employees.

5. Enforce the rule fairly.

• An alternative basis for national origin or citizenship discrimination is 42 U.S.C. § 1981.

• Guidelines on Discrimination Because of Religion or National Origin are federal guidelines that apply to federal contractors or agencies and impose on those employers an affirmative duty to prevent discrimination.

• The Immigration Reform and Control Act, unlike Title VII, prohibits, in certain circumstances, discrimination on the basis of citizenship. The act does allow for discrimination in favor of U.S. citizens where applicants are equally qualified.

• Two statutorily allowed BFOQs under IRCA are

1. English-language skill requirements that are reasonably necessary.

2. Citizenship requirements specified by law, regulation, executive order, government contracts, or requirements established by the U.S. attorney general.

Chapter-End Questions

1. Which, if any, of the following scenarios would support an employee’s claim of discrimination on the basis of national origin?

a. Applicant with a speech impediment is unable to pronounce the letter “r.” The applicant therefore often has difficulty being understood when speaking and is denied a position.

b. The owner of a manufacturing facility staffed completely by Mexicans refuses employment to a white American manager because the owner is concerned that the Mexicans will only consent to supervision by and receive direction from another Mexican.

c. An Indian restaurant seeks to fill a server position. The advertisement requests applications from qualified individuals of Indian descent to add to the authenticity of the restaurant. In the past, the restaurant found that its business declined when it used Caucasian servers because the atmosphere of the restaurant suffered. An Italian applies for the position and is denied employment.

d. A company advertises for Japanese-trained managers, because the employer has found that they are more likely to remain at the company for an extended time, to be loyal and devoted to the firm, and to react well to direction and criticism. An American applies for the position and is denied employment in favor of an equally qualified Japanese- trained applicant, who happens to also be Japanese. 2. A pipefitter in a Chrysler assembly plant, a Cuban-born Jew, was subjected from his co-workers to hate graffiti

on his locker, such as “Heil Hitler,” and other harassment, such page 351as slashed car tires. Can he recover

damages for national origin discrimination? Is being Jewish a “national origin” ? Can harassment and other abuse from co-workers rather than from management constitute national origin discrimination? Did the employer act with malice or reckless indifference? [May v. Chrysler Grp., LLC, 716 F.3d 963 (7th Cir. 2013).]

3. In 2006, the management of Delano Regional Medical Center held a mandatory meeting for Filipino-American employees regarding the hospital’s English-only policy, which required employees to speak in English except when speaking to a patient who had other language needs, or during break time. The hospital’s chief executive stated that failure to comply with the policy would result in surveillance cameras being installed to monitor the languages spoken by Filipino workers. Supervisors, staff, and volunteers were asked to report any incidences of noncompliance and would reprimand the Filipino employees. The hospital employed a mix of bilingual employees speaking Spanish, Hindi, Bengali, and other languages, but only Filipinos were required to attend the meeting and non-Filipino staff who routinely spoke languages other than English—such as Spanish—on the job were not disciplined. Is this English-only policy in violation of Title VII or is it acceptable? [U.S. E.E.O.C. v. Cent. California Found. for Health, No. 1:10-CV-01492, 2011 WL 149831 (E.D. Cal. Jan. 18, 2011).]

4. Mamdouh El-Hakem was employed by BJY, Inc., for more than a year. His manager repeatedly called Mamdouh, an Arabic employee, “Manny” or “Hank,” instead of his given name. His manager explained that he believed that Mamdouh would have a better opportunity for success with the firm’s clients with a more Western-sounding name. However, Mamdouh made it clear during his entire time with BJY that he objected to the westernization of his name and requested repeatedly that the manager call him by his rightful moniker. Mamdouh finally sued for national origin discrimination. Does he have a claim? [El-Hakem v. BJY, Inc., 415 F.3d 1068 (9th Cir. 2005).]

5. Wali Telwar, a practicing Muslim, applied for extended vacation time, using earned vacation hours, to make a pilgrimage to Mecca as required by his faith. His employer, Southern Hills Medical Center, refused to grant his request for extended leave and instructed him to either work as scheduled or to resign his position and reapply. Telwar resigned and, upon returning from pilgrimage, reapplied to work at Southern Hills. He was not rehired. Does he have a case? [EEOC v. Southern Hills Medical Center, No. 3:07-cv-00976 (M.D. Tenn. consent decree entered April 2009).]

6. A white, non-Latinx meat cutter was fired by his supermarket employer and replaced with a Latinx worker for reasons he believes were racially motivated. Can he sue the company for national origin discrimination? Is it possible to commit national origin discrimination by favoring a Latinx person over a white, non-Latinx person? If so, what would he need to prove to satisfy a prima facie case and then to succeed overall? [EEOC v. West Front Street Foods, LLC d/b/a Compare Foods, No. 5:08-cv-102 (W.D. N.C. 2008).]

7. Maria Cardenas, a Latinx woman, worked for Aramark as a housekeeper at McCormick Place convention center for over 20 years. It was a long-standing rule for employees that they could not remove any items from a trade show for personal use, even if an exhibitor gave them away. Employees found in violation of this rule would be immediately fired. In October 2004, Cardenas and a co-worker, Juanita Williams, were stopped by a security guard who noticed them carrying food items away from a convention that had just ended. Both employees were discharged, but Williams was later reinstated because she was a newer employee and allegedly had been told by Cardenas that it was okay to take the items in question. Cardenas filed a national origin discrimination suit against Aramark. What does Cardenas need to show to prove that her termination was in violation of Title VII, and how might Aramark defend its decision page 352 if she states a prima facie case? [Cardenas v. Aramark

Facility Servs., Inc., No. 05 C 6462, 2006 WL 1344057 (N.D. Ill. May 11, 2006).]

8. Latinx managers of a Florida-based tomato growing, packing, and distributing company harassed and intimidated Haitian production workers. When the Haitians complained about their treatment, the managers retaliated against them. Do the national origin antidiscrimination laws prohibit national origin discrimination by any group against any other group? Or do the laws require that the discrimination be committed by a group that is considered to represent the majority in that environment against people of color? Could the Haitians recover if their managers had been Haitian? Similarly, would the Latinx have similar liability if the workers involved had been Latinx? [EEOC v. LFC Agricultural, Inc., Six L’s Packing Company, and Custom Pak, Inc., No. 2:09-cv-00636-JES-DNF (M.D. Fl. 2009).]

9. Mohamed Arafi, a naturalized U.S. citizen from Morocco, works as a valet dry cleaner for the Mandarin Oriental Hotel in Washington, D.C. In December 2010, a supervisor allegedly prohibited Arab or Muslim workers from going on floors occupied by a delegation of Israeli diplomats. The supervisor allegedly told Arafi, “You know how the Israelis are with Arabs and Muslims.” Arafi says he complied with his supervisor’s instructions but consequently lost out on tips. He subsequently complained to another supervisor and the hotel’s director of human resources. Arafi says his work hours were cut, and that his colleagues said demeaning things about Muslims to him after the incident became known to them. Arafi brought suit under Title VII, alleging disparate treatment resulting in an adverse employment action (the loss of tips), as well as retaliation. The Mandarin Hotel claimed a national security exemption. Would either of Arafi’s claims be successful? Would the Hotel’s? [Arafi v. Mandarin Oriental, 867 F. Supp. 2d 66 (D.D.C. 2012).]

10. A nursing home instituted an English-only policy for its employees. Latinx employees were disciplined for violating the policy. Is the policy void on its face, or are some English-only policies acceptable under the law? Does the policy’s legality depend on the type of conversation involved (i.e., whether the employee is speaking to customers or speaking to co-employees on a break)? Does the policy’s legality depend on how it is enforced (i.e., Spanish-speaking employees disciplined but those speaking other foreign languages not disciplined)? [EEOC v. Skilled Healthcare Group, Inc., C.D. Cal., settled in 2009; www.eeoc.gov/eeoc/newsroom/release/4- 14-09.cfm.]

11. Leon’s Frozen Custard, a locally-owned custard shop in Milwaukee, has an English-only policy that requires employees to speak only English while they are working. This includes when they speak to customers, regardless of the language spoken by the customer. The owner of Leon’s explained to reporters, “any foreign language is going to be a problem. What I’m trying to avoid is when people come up here, they get waited on in a different language because there happens to be an employee who speaks that language.” Is Leon’s policy legal? Is speaking English a BFOQ for his employees? Do you consider Leon’s policy good for business? [“Latinos v. Leon’s: Is the frozen custard stand’s ‘English Only’ policy discriminatory?” Fox 6 (May 18, 2016), http://fox6now.com/2016/05/18/latinos-vs-leons-is-the-frozen-custard-stands-english-only-policy- discriminatory/.]

End Notes

1. 1. See, for example, Bisciglia v. Kenosha Unified Sch. Dist. No. 1, 45 F.3d 223 (7th Cir. 1995).

2. 2. Brown, A. and R. Stepler, “Statistical Portrait of the Foreign-Born Population in the United States” (April 19, 2016), http://www.pewhispanic.org/2016/04/19/statistical-portrait-of-the-foreign-born-population-in-the- united-states--charts/ (accessed April 10, 2017).

3. page 353 3. U.S. Census Bureau, “U.S. and World Population

Clock,” http://www.census.gov/popclock/ (accessed August 6, 2016).

4. 4. Ibid.

5. 5. The authors have chosen to use the term Latinx as the gender-neutral plural replacement for “Latino(s) and Latina(s).” Previously, the term Latinos was the most often-used term to represent any gender-mixed group of Latin descent. However, that choice represents a male bias that we choose not to perpetuate. For more information and context on this term, please see Logue, J., “Many student groups are changing their names to use ‘Latinx’ instead of ‘Latino’ and ‘Latina,’" Inside Higher Ed (Dec. 8, 2015), https://www.insidehighered.com/news/2015/12/08/students-adopt-gender-nonspecific-term-latinx-be- more-inclusive; Hayley Barrett, S. and O. Nñ, “Latinx: The Ungendering of the Spanish Language,” Latino USA (Jan. 29, 2016), http://latinousa.org/2016/01/29/latinx-ungendering-spanish-language/; Reichard, R., “Why we Say Latinx: Trans and Gender Non-Conforming People Explain,” Latina (Aug. 29. 2015), http://www.latina.com/lifestyle/our-issues/why-we-say-latinx-trans-gender-non-conforming-people- explain (accessed August 11, 2016); and Ramirez, T.L. and Z. Blay, “Why People Are Using The Term ‘Latinx,’” Huffington Post (July 5, 2016), http://www.huffingtonpost.com/entry/why-people-are-using-the-term- latinx_us_57753328e4b0cc0fa136a159 (accessed August 11, 2016); Padilla, Y., “What does ‘Latinx’ mean? A look at the term that’s challenging gender norms,” Complex (April 18, 2016), http://www.complex.com/life/2016/04/latinx/.

6. 6. Bureau of Labor Statistics, U.S. Department of Labor, “Foreign Born Workers: Labor Force Characteristics—2015,” (May 19, 2016), http://www.bls.gov/news.release/forbrn.nr0.htm (accessed August 6, 2016).

7. 7. Ibid.

8. 8. Equal Employment Opportunity Commission, “Charge Statistics: FY 1997 to FY 2015,” https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (accessed August 6, 2016).

9. 9. See, for example, Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973).

10. 10. Challa, J., “Why Being ‘Gypped’ Hurts the Roma More Than It Hurts You,” National Public Radio (December 30, 2013), http://www.npr.org/sections/codeswitch/2013/12/30/242429836/why-being- gypped-hurts-the-roma-more-than-it-hurts-you (accessed August 7, 2016).

11. 11. See, for example, Janko v. Illinois State Toll Highway Authority, 704 F. Supp. 1531, 1532 (N.D. Ill. 1989) (finding that discrimination based on an employee’s status as a Roma constitutes national origin discrimination under Title VII).

12. 12. EEOC, “EEOC Compliance Manual,” December 2, 2002, https://www.eeoc.gov/policy/docs/national- origin.html (accessed August 7, 2016).

13. 13. U.S. Census Bureau, “Selected Social Characteristics in the United States: 2010–2014 American Community Survey 5-Year Estimates,” http://www.census.gov/data/tables/2013/demo/2009-2013-lang- tables.html (accessed August 6, 2016).

14. 14. See Tuschman, Richard, “English-Only Policies in the Workplace: Are They Legal? Are They Smart?” Forbes (November 14, 2012), http://www.forbes.com/sites/richardtuschman/2012/11/15/english-only- policies-in-the-workplace-are-they-legal-are-they-smart/#4dc3541d1802 (accessed August 6, 2016).

15. 15. 487 F.3d 1001 (6th Cir. 2007).

16. 16. 674 F.3d 962, 974 (8th Cir. 2012). 17. page 35417. See Lauren M. Weinstein, “The Role of Labor Law in Challenging English-Only Policies,” Harvard

Civil Rights-Civil Liberties Law Review 47 (2012), pp. 219–279.

18. 18. 113 F. Supp. 2d 1066 (N.D. Tex. 2000).

19. 19. 593 F. Supp. 2d 599 (S.D.N.Y. 2009).

20. 20. 419 F. Supp. 2d 408 (S.D.N.Y. 2005).

21. 21. 497 F.3d 1160 (10th Cir. 2007).

22. 22. 53 F. Supp. 2d 223 (N.D.N.Y. 1999).

23. 23. 86 F.3d 1151 (4th Cir. 1996) (affirm per curium the district court decision).

24. 24. 78 F. Supp. 3d 1351, 1357 (D. Colo. 2015).

25. 25. EEOC, “EEOC Settles English-Only Suit for $2.44 Million against University of Incarnate Word” (April 20, 2001), https://www.eeoc.gov/eeoc/newsroom/release/4-20-01.cfm (accessed August 7, 2016).

26. 26. EEOC, “Delano Regional Medical Center to Pay Nearly $1 Million in EEOC National Origin Discrimination Suit” (September 17, 2012), http://www1.eeoc.gov/eeoc/newsroom/release/9-17-12a.cfm (accessed August 8, 2016).

27. 27. EEOC, “Employment Rights of Immigrants Under Federal Anti-Discrimination Law,” https://www.eeoc.gov/eeoc/publications/immigrants-facts.cfm (accessed August 8, 2016); see also Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993). For the contrary opinion supporting EEOC’s contention, see EEOC v. Premier Operator Services, Inc., 75 F. Supp. 550 (N.D. Tex. 1999), and EEOC v. Synchro-Start, 29 F. Supp. 2d 911 (N.D. Ill. 1999).

28. 28. Gonzalo v. All Island Transportation, No. CV-04-3452 (BMC), 2007 WL 642959, at *7 (E.D.N.Y. Feb. 26, 2007).

29. 29. Garcia v. Spun Steak Co., 998 F.2d at 1489.

30. 30. 433 F.3d 1294 (10th Cir. 2006).

31. 31. See, for example, E.E.O.C. v. Premier Operator Servs., Inc., 113 F. Supp. 2d 1066 (N.D. Tex. 2000); and EEOC v. Synchro–Start Prods., Inc., 29 F.Supp. 2d 911 (N.D. Ill. 1999).

32. 32. 801 F.3d 72 (2d Cir. 2015).

33. 33. U.S. Equal Employment Opportunity Commission, Charge Statistics FY 1997– 2015, http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm (accessed July 28, 2016).

34. 34. EEOC, “EEOC Compliance Manual” (December 2, 2002), http://www.eeoc.gov/policy/docs/national- origin.html (accessed August 8, 2016).

35. 35. The EEOC based this example on Amirmokri v. Baltimore Gas & Electric Co., 60 F.3d 1126 (4th Cir. 1995) (finding that the Iranian emigrant employed as an engineer at a nuclear power plant established a prima facie case of national origin harassment).

36. 36. 680 F.3d 936 (7th Cir. 2012).

37. 37. Code of Federal Regulations, Tile 41, Part 60-50, available at http://law.justia.com/cfr/title41/41- 1.2.3.1.8.html (accessed August 8, 2016).

38. 38. The authors have followed the usage at the time of publication offered by the BBC and NPR, recognizing the qualification that the identification is self-defined and may be considered to reflect expansionist ambitions. Other terms in use include ISIS (“Islamic State of Iraq and Syria”) and ISIL (“Islamic State of Iraq and the Levant,” meaning the whole eastern shore of the Mediterranean Sea). Jensen, E., “Islamic State, ISIS, ISIL or Daesh?” NPR Ombudsman (November 18, 2015), http://www.npr.org/sections/ombudsman/2015/11/18/456507131/islamic-state-isis-isil-or-daesh; Irshaid, F., “Isis, Isil, IS or Daesh? One group, many names,” BBC News (December 2, 2015), http://www.bbc.com/news/world-middle-east-27994277.

39. page 35539. Sholinsky, S.G. and A. Mahoney, “EEOC Targets Religious and National Origin Discrimination

Against Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern,” Epstein Becker Green Retail Labor and Employment Law Blog (May 24, 2016), http://www.ebglaw.com/news/five-new-challenges-facing- retail-employers-3/#_pref5.

40. 40. Volohk, E., “The EEOC, Religious Accommodation Claims, and Muslims,” The Washington Post (June 21, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/21/the-eeoc-religious- accommodation-claims-and-muslims/ (accessed August 7, 2016).

41. 41. EEOC, “National Origin-Based Charges Filed from 10/01/2000 thru 09/30/2012,” http://www.eeoc.gov/eeoc/events/9-11-11_natl_origin_charges.cfm (accessed August 8, 2016).

42. 42. Equal Employment Opportunity Commission, “What You Should Know about the EEOC and Religious and National Origin Discrimination Involving the Muslim, Sikh, Arab, Middle Eastern and South Asian Communities,” http://www.eeoc.gov/eeoc/newsroom/wysk/religion_national_origin_9-11.cfm.

43. 43. U.S. Department of Justice, “Confronting Discrimination in the Post-9/11 Era: Challenges and Opportunities Ten Years Later, October 19, 2011.” Conviction data at http://www.justice.gov/crt/nordwg.php (accessed August 8, 2016).

44. 44. The New York Times, “The MTA and Fairness” (June 3, 2012), http://www.nytimes.com/2012/06/04/opinion/the-mta-and-fairness.html (accessed August 8, 2016).

45. 45. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015).

46. 46. See “CEOs: Human and Humane,” Corporate Counsel (October 19, 2001).

47. 47. Lori Peek, Behind the Backlash: Muslim Americans after 9/11 (New Delhi: Social Science Press, 2012) and (Philadelphia: Temple University Press, 2010).

48. 48. 42 U.S.C.A. § 2000e-2.

49. 49. 435 U.S. 291 (1978).

50. 50. 414 U.S. 86 (1973)

51. 51. https://www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and- hire-american

52. 52. Pew Hispanic Center, “Unauthorized Immigrant Population: National and State Trends, 2010” (February 2011), http://www.pewhispanic.org/2011/02/01/unauthorized-immigrant-population-brnational-and-state- trends-2010/ (accessed August 7, 2016).

53. 53. See, e.g., Passel, J., and D. Cohn, “As Mexican share declined, U.S. unauthorized immigrant population fell in 2015 below recession level,” Pew Research (April 25, 2017), http://www.pewresearch.org/fact-

tank/2017/04/25/as-mexican-share-declined-u-s-unauthorized-immigrant-population-fell-in-2015-below- recession-level/ (accessed August 20, 2017); Bedard, P. , “Record 61 Million Immigrants in U.S., 15.7 million Illegally,” Washington Examiner (March 7, 2016), http://www.washingtonexaminer.com/record-61-million- immigrants-in-u.s.-15.7-million-illegally/article/2585110 (accessed August 7, 2016); and Markon, J., “U.S. Illegal Immigrant Population Falls below 11 million, Continuing Nearly Decade-Long Decline, Report Says,” The Washington Post (January 20, 2016), https://www.washingtonpost.com/news/federal- eye/wp/2016/01/20/u-s-illegal-immigrant-population-falls-below-11-million-continuing-nearly-decade-long- decline-report-says/(accessed August 7, 2016).

54. page 35654. Passel, Jeffrey, and D’vera Cohn, “Unauthorized Immigrant Population Stable for Half a Decade,”

Pew Research Center (July 22, 2015), http://www.pewresearch.org/fact-tank/2015/07/22/unauthorized- immigrant-population-stable-for-half-a-decade/ (accessed August 7, 2016); and Krogstad, Jens Manuel, and Jeffrey S. Passel, “5 Facts about Illegal Immigration in the U.S.,” Pew Research Forum (November 19, 2015), http://www.pewresearch.org/fact-tank/2015/11/19/5-facts-about-illegal-immigration-in-the-u- s/ (accessed August 7, 2016).

55. 55. Welsh, Teresa, “Report: Fewer Immigrants Living in the U.S. Illegally,” U.S. News (August 21, 2015), http://www.usnews.com/news/blogs/data-mine/2015/08/21/report-fewer-immigrants-living-in-the-us- illegally (accessed August 7, 2016).

56. 56. 8 C.F.R. § 274a.1(1)(1).

57. 57. Preston, J.,“Revised Rule for Employers That Hire Immigrants,” The New York Times (November 26, 2007), http://www.nytimes.com/2007/11/25/washington/25immig.html (accessed August 7, 2016).

58. 58. Preston, J., “U.S. Set for a Crackdown on Illegal Hiring,” The New York Times (August 8, 2007), http://www.nytimes.com/2007/08/08/washington/08immig.html?_r=0 (accessed August 7, 2016).

59. 59. U.S. DoJ, Office of Special Council for Immigration-Related Unfair Employment Practices, “Name and Social Security Number (SSN) ‘No Matches’ Information for Employers,” https://www.justice.gov/sites/default/files/crt/legacy/2014/12/04/Employers.pdf (accessed August 7, 2016).

60. 60. Immigration and Customs Enforcement, “Worksite Enforcement” (April 1, 2013), http://www.ice.gov/news/library/factsheets/worksite.htm (accessed August 7, 2016).

61. 61. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065 (9th Cir. 2004); see also EEOC v. The Restaurant Company, d/b/a Perkins Restaurant & Bakery, 490 F. Supp. 2d 1039 (D. Minn. 2006).

62. 62. 535 U.S. 137 (2002).

63. 63. See Porter, Donna Y., “Undocumented Workers Have NLRA Rights, but Not Monetary Remedies,” Employment Law Strategist (April 2002).

64. 64. 214 F. Supp. 2d 1056 (N.D. Cal. 2002).

65. 65. See “Workforce Online,” CCH (November 1999), citing “Policy Guidance: Remedies Available to Undocumented Workers under Federal Employment Discrimination Laws” (October 26, 1999), Appendix B of sec. 622, vol. II of EEOC Compliance Manual.

66. 66. Colon v. Major Perry St. Corp., 987 F. Supp. 2d 451 (S.D.N.Y. 2013).

67. 67. Hofman Plastics Compounds v. NLRB, 535 U.S. 137, 149 (2002).

68. 68. Bailon v. Seok AM No. 1 Corp., 2009 WL 4884340 (W.D. Wash. 2009).

69. 69. 481 U.S. 604 (1987).

70. 70. 17 F. Supp. 2d 394 (E.D. Pa 1998).

Cases Case 1 Garcia v. Spun Steak Co 357

Case 2 Vega v. Hempstead Union Free Sch. Dist 359 Case 3 Cortezano v. Salin Bank & Trust Company 363 Case 4 Espinoza v. Farah Manufacturing Co 366 Case 5 Reyes-Fuentes v. Shannon Produce Farm, Inc 367

page 357

Garcia v. Spun Steak Co. 998 F.2d 1480 (9th Cir. 1993)

Defendant, Spun Steak Co., employs 33 workers, 24 of whom are Spanish-speaking. Two of the Spanish-speakers speak no English. Plaintiffs Garcia and Buitrago are production line workers for the defendant and both are bilingual. After receiving complaints that some workers were using their second language to harass and to insult other workers, Spun Steak enacted an English-only policy in the workplace in order to (1) promote racial harmony, (2) enhance worker safety because some employees who did not understand Spanish claimed that they were distracted by its use, and (3) enhance product quality because the USDA inspector in the plant spoke only English. The two plaintiffs received warning notices about speaking Spanish during working hours, and they were not permitted to work next to each other for two months. They filed charges with the EEOC, which found reasonable cause to believe that the defendant had violated Title VII. The district court found in favor of the employees and Spun Steak appealed. The appellate court reversed, finding that Spun Steak did not violate Title VII in adopting the English-only rule.

O’Scannlain, J.

***

The Spanish-speaking employees do not contend that Spun Steak intentionally discriminated against them in enacting the English-only policy. Rather, they contend that the policy had a discriminatory impact on them because it imposes a burdensome term or condition of employment exclusively upon Hispanic workers and denies them a privilege of employment that non-Spanish-speaking workers enjoy.

The employees argue that denying them the ability to speak Spanish on the job denies them the right to cultural expression. It cannot be gainsaid that an individual’s primary language can be an important link to his ethnic culture and identity. Title VII, however, does not protect the ability of workers to express their cultural heritage at the workplace. Title VII is concerned only with disparities in the treatment of workers; it does not confer substantive privileges. It is axiomatic that an employee must often sacrifice individual self-expression during working hours. Just as a private employer is not required to allow other types of self-expression, there is nothing in Title VII which requires an employer to allow employees to express their cultural identity.

Next, the Spanish-speaking employees argue that the English-only policy has a disparate impact on them because it deprives them of a privilege given by the employer to native-English speakers: the ability to converse on the job in the language with which they feel most comfortable. It is undisputed that Spun Steak allows its employees to converse on the job. The ability to converse—especially to make small talk—is a privilege of employment, and may in fact be a significant privilege of employment in an assembly-line job. It is inaccurate, however, to describe the privilege as broadly as the Spanish-speaking employees urge us to do.

The employees have attempted to define the privilege as the ability to speak in the language of their choice. A privilege, however, is by definition given at the employer’s discretion; an employer has the right to define its contours. Thus, an employer may allow employees to converse on the job, but only during certain times of the day or during the performance of certain tasks. The employer may proscribe certain topics as inappropriate during working hours or may even forbid the use of certain words, such as profanity.

Here, as is its prerogative, the employer has defined the privilege narrowly. When the privilege is defined at its narrowest (as merely the ability to speak on the job), we cannot conclude that those employees fluent in both English and Spanish are adversely impacted by the policy. Because they are able to speak English, bilingual employees can engage in conversation on the job. It is axiomatic that “the language a person who is multilingual elects to speak at a particular time is . . . a matter of choice.” The bilingual employee can readily comply with the English-only rule and still enjoy the page 358privilege of speaking on the job. “There is no disparate impact” with

respect to a privilege of employment “if the rule is one that the affected employee can readily observe and nonobservance is a matter of individual preference.”

The Spanish-speaking employees argue that fully bilingual employees are hampered in the enjoyment of the privilege because for them, switching from one language to another is not fully volitional. Whether a bilingual speaker can control which language is used in a given circumstance is a factual issue that cannot be resolved at

the summary judgment stage. However, we fail to see the relevance of the assertion, even assuming that it can be proved. Title VII is not meant to protect against rules that merely inconvenience some employees, even if the inconvenience falls regularly on a protected class. Rather, Title VII protects against only those policies that have a significant impact. The fact that an employee may have to catch himself or herself from occasionally slipping into Spanish does not impose a burden significant enough to amount to the denial of equal opportunity. This is not a case in which the employees have alleged that the company is enforcing the policy in such a way as to impose penalties for minor slips of the tongue. The fact that a bilingual employee may, on occasion, unconsciously substitute a Spanish word in the place of an English one does not override our conclusion that the bilingual employee can easily comply with the rule. In short, we conclude that a bilingual employee is not denied a privilege of employment by the English-only policy.

By contrast, non-English speakers cannot enjoy the privilege of conversing on the job if conversation is limited to a language they cannot speak. As applied “[t]o a person who speaks only one tongue or to a person who has difficulty using another language than the one spoken in his home,” an English-only rule might well have an adverse impact. Indeed, counsel for Spun Steak conceded at oral argument that the policy would have an adverse impact on an employee unable to speak English. There is only one employee at Spun Steak affected by the policy who is unable to speak any English. Even with regard to her, however, summary judgment was improper because a genuine issue of material fact exists as to whether she has been adversely affected by the policy. She stated in her deposition that she was not bothered by the rule because she preferred not to make small talk on the job, but rather preferred to work in peace. Furthermore, there is some evidence suggesting that she is not required to comply with the policy when she chooses to speak. For example, she is allowed to speak Spanish to her supervisor. Remand is necessary to determine whether she has suffered adverse effects from the policy. It is unclear from the record whether there are any other employees who have such limited proficiency in English that they are effectively denied the privilege of speaking on the job. Whether an employee speaks such little English as to be effectively denied the privilege is a question of fact for which summary judgment is improper.

We do not foreclose the prospect that in some circumstances English-only rules can exacerbate existing tensions, or, when combined with other discriminatory behavior, contribute to an overall environment of discrimination. Likewise, we can envision a case in which such rules are enforced in such a draconian manner that the enforcement itself amounts to harassment. In evaluating such a claim, however, a court must look to the totality of the circumstances in the particular factual context in which the claim arises.

In holding that the enactment of an English-only while working policy does not inexorably lead to an abusive environment for those whose primary language is not English, we reach a conclusion opposite to the EEOC’s long-standing position. The EEOC Guidelines provide that an employee meets the prima facie case in a disparate impact cause of action merely by proving the existence of the English-only policy. Under the EEOC’s scheme, an employer must always provide a business justification for such a rule. The EEOC enacted this scheme in part because of its conclusion that English-only rules may “create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment.”

We do not reject the English-only rule Guideline lightly. We recognize that “as an administrative interpretation of the Act by the enforcing agency, these Guidelines . . . constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” But we are not bound by the Guidelines. We will not defer to “an administrative construction of a statute where there are ‘compelling indications that it is wrong.’”

In sum, we conclude that the bilingual employees have not made out a prima facie case and that Spun Steak page 359has not violated Title VII in adopting an English-only rule as to them. Thus, we reverse the grant

of summary judgment in favor of Garcia, Buitrago, and Local 115 to the extent it represents the bilingual employees, and remand with instructions to grant summary judgment in favor of Spun Steak on their claims. A genuine issue of material fact exists as to whether there are one or more employees represented by Local 115 with limited proficiency in English who were adversely impacted by the policy. As to such employee or employees, we reverse the grant of summary judgment in favor of Local 115, and remand for further proceedings. REVERSED and REMANDED.

Case Questions

1. Do you agree with the contention that denying a group the right to speak their native tongue denies them the right to cultural expression?

2. Do employees have a “right” to cultural expression in the workplace?

3. Do you agree with the court that an English-only rule is not abusive per se to those whose primary language is not English? Do you believe that it creates a “class system” of languages in the workplace and therefore inherently places one group’s language above another’s?

Vega v. Hempstead Union Free Sch. Dist. 801 F.3d 72 (2d Cir. 2015)

Vega, a high school math teacher, alleges that his school district and two principals discriminated against him because of his “Hispanic ethnicity” and that they retaliated against him after he complained of discrimination. The district court found that Vega had not “demonstrated that he suffered an adverse employment action” and therefore he had not “established a prima facie case of discrimination”; and that he had failed, with respect to his claims of retaliation, “to establish an adverse action taken against him” or “a connection between the alleged retaliatory acts and his ethnicity.” The Second Circuit finds below that: the retaliation claims are actionable under § 1983; and Vega has sufficiently pleaded discrimination and retaliation claims.

CHIN, Circuit Judge

***

1. The Alleged Discrimination

Beginning in 2008, the District took a number of actions that Vega contends were discriminatory:

• Beginning in 2008, Vega was assigned an “increased percentage of students that were Spanish speaking and were not fluent in English,” requiring Vega to do “twice as much work” in preparing and teaching his classes first in English and then in Spanish, without extra compensation.

• When he complained later in 2008, Vega was assigned “a mixture of bilingual classes and English classes, instead of all bilingual,” and he was still not compensated for the extra preparation time.

• Vega was unable to use his regular classroom for his first period class in October 2010 and had to teach in the “excessively noisy” media center without a blackboard.

• Vega was assigned a classroom with a “University of Puerto Rico” banner above the door.

• Vega attempted to enter his students’ grades into the school’s computer system in October 2011, but his password had been deactivated. Vega had to use his non-Hispanic colleague’s password to log into the computer system to enter his grades.

• The District twice attempted to transfer Vega out of the High School: First, on June 24, 2011, Davidson attempted to transfer Vega to the District’s page 360middle school. On July 11, 2011, Vega objected to Davidson’s proposed

transfer and told the Assistant Superintendent that he should not be transferred because he had a better percentage of passing students than most of his co-workers. On September 21, 2011, the District rescinded the transfer and Vega continued teaching at the High School. Second, on June 18, 2012, Vega received a letter from the District approving his transfer to the Academy of Math and Sciences—whose principal is Hispanic—even though he had never requested this transfer. Vega was never transferred.

Vega alleges that his non-Hispanic colleagues were not subjected to such actions.

2. The Alleged Retaliation

On August 8, 2011, Vega filed a charge with the Equal Employment Opportunity Commission (the “EEOC”), alleging that the District had discriminated against him based on his ethnicity in violation of Title VII. Vega amended the charge twice, first on January 4, 2012, and then on July 2, 2012, adding further allegations of discrimination.

After Vega filed his initial charge, and, in some instances, the amended charges, Defendants engaged in a number of actions that Vega alleges were retaliatory:

• For the 2011–12 school year, Vega “was assigned classes with students who [were] notoriously excessively absent.” Before 2011, consistently roughly 20% of Vega’s students were excessively absent, but during the 2011–12 school year, that number jumped to 75%. Chronic absence leads to poor student performance, which in turn reflects poorly on a teacher’s performance.

• The District changed the curriculum for one of Vega’s classes in November 2011. The District notified all non- Hispanic teachers of the curriculum change, but it did not notify Vega.

• On March 12, 2012, $738.92 was improperly deducted from Vega’s paycheck for sick time, even though he had leftover sick time in his “sick day bank.” Vega complained to the District’s Business Office, which acknowledged the mistake, and while he was repaid a portion of the deducted amount in September, he was never repaid the full amount that was due to him.

• In February 2013, Vega received his first negative performance review in his sixteen years teaching at the High School. Artiles observed Vega’s classroom performance and gave him 1.4 out of a 4-point maximum in his review. Vega was held to a different evaluation process than his colleagues, and he was the only teacher to receive a negative performance score during the evaluation period.

***

2. Pleading Standards for Discrimination Claims

We turn to the question of what a plaintiff must plead in an employment discrimination case to state a claim upon which relief may be granted.

a. Title VII In Littlejohn, we held that at the pleadings stage of an employment discrimination case, a plaintiff has a “minimal burden” of alleging facts “suggesting an inference of discriminatory motivation.” While we made clear that Iqbal applies to employment discrimination cases, we also clarified that Iqbal’s plausibility requirement “does not affect the benefit to plaintiffs pronounced in the McDonnell Douglas quartet.” We ruled nonetheless that the facts alleged in the complaint must provide “at least minimal support for the proposition that the employer was motivated by discriminatory intent.” The question remains what a plaintiff must allege to meet this minimal burden.

The starting point is the statute. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Title VII thus requires a plaintiff asserting a discrimination claim to allege two elements: (1) the employer discriminated against him (2) because of his race, color, religion, sex, or national origin.

As to the first element, an employer discriminates against a plaintiff by taking an adverse employment action against him. “A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment.” Galabya v. N.Y.C. Bd. of Educ. “An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Terry v. Ashcroft. “Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly page

361diminished material responsibilities, or other indices unique to a particular situation.” We have held that the

assignment of “a disproportionately heavy workload” can constitute an adverse employment action. Feingold. As to the second element, an action is “because of” a plaintiff’s race, color, religion, sex, or national origin

where it was a “substantial” or “motivating” factor contributing to the employer’s decision to take the action. See Price Waterhouse v. Hopkins. While the Supreme Court has held that a plaintiff alleging age discrimination under the Age Discrimination in Employment Act must allege “that age was the ‘but-for’ cause of the employer’s adverse action,” Gross v. FBL Fin. Servs., Inc., the “motivating factor” standard still applies to discrimination claims based on race, color, religion, sex, or national origin, see Leibowitz v. Cornell Univ. Hence, a plaintiff in a Title VII case need not allege “but-for” causation.

Under Iqbal and Twombly, then, in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision.

The question remains as to what “plausibility” means in the context of employment discrimination claims. Several considerations guide the inquiry.

First, as the Supreme Court explained in Iqbal, a plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” While “detailed factual allegations” are not required, “a formulaic recitation of the elements of a cause of action will not do.” Twombly. At the same time, the court must assume the factual allegations in the complaint to be true, “even if [they are] doubtful in fact,” and a complaint may not be dismissed “based on a judge’s disbelief of a complaint’s factual allegations,” Neitzke v. Williams.

Second, in making the plausibility determination, the court is to “draw on its judicial experience and common sense.” Iqbal. Of course, the court must proceed at all times in a fair and deliberative fashion, alert to any unconscious bias that could affect decision-making. In making the plausibility determination, the court must be mindful of the “elusive” nature of intentional discrimination. See Burdine. As we have recognized, “clever men may easily conceal their motivations.” Robinson v. 12 Lofts Realty, Inc. Because discrimination claims implicate an employer’s usually unstated intent and state of mind, see Meiri v. Dacon, rarely is there “direct, smoking gun, evidence of discrimination,” Richards v. N.Y.C. Bd. of Educ. Instead, plaintiffs usually must rely on “bits and pieces” of information to support an inference of discrimination, i.e., a “mosaic” of intentional discrimination. Gallagher v. Delaney. Again, as we made clear in Littlejohn, at the initial stage of a litigation, the plaintiff’s burden is “minimal”—he need only plausibly allege facts that provide “at least minimal support for the proposition that the employer was motivated by discriminatory intent.”

Finally, courts must remember that “[t]he plausibility standard is not akin to a ‘probability requirement.’” Iqbal. On a motion to dismiss, the question is not whether a plaintiff is likely to prevail, but whether the well-pleaded factual allegations plausibly give rise to an inference of unlawful discrimination, i.e., whether plaintiffs allege enough to “nudge[] their claims across the line from conceivable to plausible.” Twombly.

Accordingly, to defeat a motion to dismiss or a motion for judgment on the pleadings in a Title VII discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision. As we have long recognized, the “‘ultimate issue’ in an employment discrimination case is whether the plaintiff has met her burden of proving that the adverse employment decision was motivated at least in part by an ‘impermissible reason,’ i.e., a discriminatory reason.” Stratton v. Dep’t for the Aging for City of N.Y. A plaintiff can meet that burden through direct evidence of intent to discriminate, or by indirectly showing circumstances giving rise to an inference of discrimination. A plaintiff may prove discrimination indirectly either by meeting the requirements of McDonnell Douglas and showing that the employer’s stated reason for its employment action was pretext to cover-up discrimination, or by otherwise creating a “mosaic” of intentional discrimination by identifying “bits and pieces of evidence” that together give rise to an inference of discrimination, Gallagher. At the pleadings stage, then, a plaintiff must allege that the employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.

* * * *

3. Application

We conclude that Vega pleaded a plausible discrimination claim under Title VII and § 1983, based on his allegation that the District assigned him classes with higher numbers of Spanish-speaking students and, in doing page 362so, assigned him a disproportionate workload. None of Vega’s other claims plausibly state a claim

on their own, but they help create context for his discrimination claim. Vega has plausibly alleged that his assignment to classes with increased numbers of Spanish-speaking

students was an “adverse employment action” taken “because of” his Hispanic ethnicity. First, Vega alleges that he was forced to spend disproportionately more time preparing for his classes and therefore experienced a material increase in his responsibilities without additional compensation. He contends that these assignments required him to do “twice as much work” and that he was assigned class preparations on a basis that exceed “District policy.” App. at 11. We have previously held that the assignment of “an excessive workload” as a result of “discriminatory intent,” Feingold, can be an adverse employment action because it is “more disruptive than a mere inconvenience or an alteration of job responsibilities,” Terry. Vega has thus plausibly alleged an adverse employment action.

Second, Vega has also plausibly alleged that the adverse action was taken “because of” his Hispanic ethnicity, that is, that his Hispanic ethnicity was a motivating factor in the employment decisions. He contends that he was assigned a large percentage of Spanish-speaking students because he is Hispanic and bilingual, while his similarly situated co-workers were not assigned additional work. Vega’s other allegations of discrimination, even if they do not independently constitute adverse employment actions, provide “relevant background evidence” by

shedding light on Defendant’s motivation and thus bolster his claim that Defendants treated him differently because of his ethnicity. See Nat’l R.R. Passenger Corp.; Washington v. Davis. For example, the District placed a “University of Puerto Rico” banner outside his classroom and attempted to transfer him to a Hispanic principal’s school. These actions are plausibly connected to Vega’s Hispanic background and therefore provide a contextual basis for inferring discrimination. Vega has thus plausibly alleged that his Hispanic background was a “motivating factor” contributing to his being assigned extra work.

* * * *

The District may contend that Vega was assigned a disproportionate number of Spanish-speaking students solely because of his language ability, and not because of his Hispanic background, but these competing explanations are better evaluated at the summary judgment stage or beyond, and not on a motion for judgment on the pleadings.

Accordingly, the Complaint plausibly pleads under both Title VII and § 1983 that Defendants discriminated against Vega by assigning him, on or after the time-bar dates, to classes that required additional preparation because they had large numbers of Spanish-speaking students.

***

D. Pleading of Retaliation Claims

***

Here, Vega alleges that after he engaged in protected activity by filing a charge of discrimination with the EEOC in August 2011, he was assigned more students with excessive absenteeism records (jumping from 20% to 75%), his salary was temporarily reduced, he was not notified that the curriculum for one of his classes was changed, and he received a negative performance evaluation. Each of these allegations plausibly states a claim of retaliation.

First, each of these actions “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” White. The assignment of a substantially higher number of chronically absent students could very well have adversely impacted Vega, both by making his teaching assignments more difficult and by making it more difficult for him to achieve good results. Likewise, the wrongful deduction of $738.92 from his paycheck for sick leave, the failure of the District to correct the error in full, and the failure of the District to correct the error even in part for six months surely could have had an adverse impact on Vega. Similarly, failing to notify Vega of a curriculum change could have adversely affected him by, for example, making him appear unprepared or ineffective both to his students and for his up-coming teacher evaluation, as he would have been preparing for and teaching the wrong curriculum.

Viewed in the context of his other allegations, it was plausible that the District’s *92 failure to notify Vega of the curriculum change was part of their pattern of discrimination and retaliation designed to make Vega look bad. Finally, of course, a poor performance evaluation could very well deter a reasonable worker from complaining.

Second, each of these actions closely followed protected activity by Vega. His assignment of classes “for the 2011/2012 school year,” must have been made shortly before the start of the school year—shortly after he filed his initial charge with the EEOC on August 8, 2011. Similarly, the District changed the curriculum for his class in November of 2011, within three months of his initial filing with the EEOC. The District made the page

363erroneous sick leave deduction from Vega’s pay check on March 2, 2012, just two months after Vega filed

an addendum to his EEOC complaint on January 4, 2012, providing greater detail about his previous claims and adding new allegations of discrimination and retaliation. Vega received his poor teacher evaluation (from Artiles) in February 2013, approximately two months after he filed his pro se complaint in the action below, on December 12, 2012. According to Vega, this was his first negative evaluation in sixteen years of teaching at the High School. Hence, the Complaint plausibly alleges a temporal proximity for each of these actions.

Some of these actions, considered individually, might not amount to much. Taken together, however, they plausibly paint a mosaic of retaliation and an intent to punish Vega for complaining of discrimination.

CONCLUSION

We conclude that the district court erred in granting Defendants’ motion for judgment on the pleadings in full and dismissing the Complaint in its entirety. For the reasons stated above, we VACATE and REMAND for further proceedings consistent with this opinion.

Case Questions

1. Who has to prove a company discriminated against an employee? Do you agree with the burden of this obligation?

2. What are the two elements that an employee must show to make a successful Title VII claim? Do you think the “motivating factor” standard is appropriate for discrimination claims based on national origin?

3. Are employers allowed to treat employees who file claims of discrimination differently after the claim has been made? What sort of actions may be construed as retaliation against an employee? How might an employer avoid actions that can be perceived as retaliation?

4. Does the School District have either a bona fide occupational qualification (BFOQ) or a legitimate nondiscriminatory reason (LNDR) for requiring Vega to teach the bilingual classes? Would it matter if Vega were the only teacher in the school with the appropriate language skills to teach these students? Would this case come out differently if three Spanish-speaking white teachers with less tenure than Vega were not required to teach any bilingual classes?

Cortezano v. Salin Bank & Trust Company 680 F. 3d 936 (7th Circuit, 2012)

Kristi Cortezano, a United States citizen, was married to a Mexican citizen residing in the United States without legal authorization. While employed by Salin Bank & Trust, Cortezano assisted her husband in opening a bank account. She told her employers of her husband’s unauthorized status and was subsequently fired. Cortezano filed suit against her former employer under Title VII, alleging that she was discriminated against because of her husband’s national origin. Her claim was rejected, as the courts found that any discrimination that led to Cortezano’s firing was not based on her husband’s race or national origin but his status as an undocumented alien (“alienage”).

Wood, C.J.

***

Kristi Cortezano filed suit against her former employer, Salin Bank & Trust Company, alleging national-origin discrimination based on her marriage to Javier Cortezano, a Mexican citizen whose presence in the United States was unauthorized. (We use the couple’s first names to avoid confusion.) The district court granted Salin Bank’s motion for summary judgment, finding that Kristi failed to establish that her firing was based on an impermissible reason. Kristi now appeals. We find that any discrimination that led to Kristi’s firing was not based on Javier’s page

364race or national origin, but rather on his status as an alien who lacked permission to be in the country.

Because alienage is not a protected classification under Title VII, Kristi has no claim for relief, and so we affirm.

I

In 1997, Javier unlawfully entered the United States, where he took up residence without a valid visa or work permit. Some time later, he met Kristi and the two married in February 2001. In March 2007, Salin Bank hired Kristi as a Manager in Training. Kristi showed promise. Less than one month later, she was promoted to Bank Sales Manager, and a few months after that she was transferred to a more profitable location.

Meanwhile, Javier attempted to start a car detailing and repair business. Given his undocumented status, he lacked a social security number to open a business banking account for his new enterprise. To open the accounts he needed, Javier obtained an individual tax identification number (ITIN). Although the exact circumstances under which Javier obtained his ITIN are murky, this appeal comes to us from a motion for summary judgment, and so we assume that Javier properly received his identification number. Kristi named Javier a joint owner on her account at Salin Bank, and with some help from Kristi, Javier used his ITIN to open two accounts of his own: a

personal account, as well as a business account for his company, Cortezano Motors, Ltd. Javier’s business venture floundered, unfortunately, and so in December 2007, he returned to Mexico to sort out his citizenship status.

Around that time, Kristi revealed Javier’s unauthorized status to her supervisor at Salin Bank, Stacy Novotny, in connection with her request for a two-week vacation during which she planned to attend proceedings in Mexico to help Javier obtain U.S. citizenship. Novotny granted the request, and Kristi traveled to Mexico from January 24 to February 8, 2008.

After learning about Javier’s situation, Novotny did not let matters lie. Instead, she called Salin Bank’s security officer, Mike Hubbs, and told him that Kristi had joint accounts at the bank with a known undocumented alien. Hubbs verified that Javier was indeed on these accounts. Concerned that this arrangement might implicate laws against bank fraud, Hubbs scheduled a meeting with Novotny and Kristi for February 11, 2008.

During this meeting, Kristi admitted that Javier had illegally entered the United States. She urged, however, that he was then in Mexico trying to obtain a visa or U.S. citizenship so that he could rejoin her. Hubbs did not see this as an excuse; instead, he emphasized his concern that Javier, as an “illegal alien from Mexico,” must have used fraudulent documents to open his accounts. As the meeting progressed, Hubbs’s temper flared. When Novotny briefly stepped out of the room, Hubbs got in Kristi’s face, screamed at her, called Javier a “piece of shit,” and demanded that Kristi admit that Javier illegally opened his Salin Bank accounts. Unconvinced by Kristi’s repeated statements that Javier’s ITIN, other documentation, and accounts were legitimate, Hubbs informed Kristi that he would be filing an internal Suspicious Activity Report.

In the course of collecting information for his report, Hubbs emailed several Salin Bank supervisors to inform them that Javier had “gained entry into the US illegally,” “illegally obtained an Indiana [Driver’s License]” by providing “false identification” and used this documentation to open his accounts at Salin Bank. Hubbs’s completed report harped on the fact that Javier was an “illegal alien.” At this point, Salin Bank seems to have considered firing Kristi. A draft “Termination Notice,” which identified Kristi’s complicit behavior in Javier’s alleged fraud as the reason for her firing, was circulated among the human resources department and Novotny on February 13. This notice, however, was never signed or sent to Kristi.

On February 19, Kristi and her attorney attempted to attend a scheduled meeting with Salin Bank representatives regarding the ongoing investigation. The Bank, however, refused to admit Kristi’s attorney to the meeting, stating that the meeting was a “private matter” related to internal “Salin Bank business.” Kristi replied that she would not attend the meeting without her attorney. At an impasse, Kristi and her attorney began to leave. One of the Salin Bank representatives called after them, telling Kristi that by walking away from the meeting she was “abandoning [her] job.” Kristi left nevertheless. That afternoon, Salin Bank drafted, signed, and sent a letter to Kristi, terminating her employment for refusing to participate in the meeting.

After Kristi was fired, Hubbs reported Kristi’s activity to U.S. Immigration and Customs Enforcement. He also attended, on behalf of Salin Bank, a June 4, 2008, meeting of the Fraud Financial Network, which is a loose consortium of banks in northeast Indiana with the mission of rooting out fraud. According to the minutes of that meeting, Hubbs warned the other banks that Kristi was fired for opening fraudulent accounts for Javier, an “illegal immigrant who is now back in Mexico.”

On September 11, 2008, Kristi filed suit in Indiana state court, claiming that Salin Bank had blacklisted her, defamed page 365her, and intentionally caused her emotional distress. In 2009, she amended her complaint to

add a claim for employment discrimination under Title VII, 42 U.S.C. § 2000e, et seq. In light of the new federal claim, Salin Bank removed the case to the U.S. District Court for the Southern District of Indiana. On February 15, 2011, the district court granted Salin Bank’s motion for summary judgment on all claims.

II

We review the district court’s grant of summary judgment de novo. In order to succeed on her claim for employment discrimination under Title VII, Kristi’s first task is to show that she belongs to a statutorily protected class. Here, Kristi alleges that she was discriminated against because of her marriage to a Mexican citizen whose residence in the United States was unauthorized. Although we note that several of our sister circuits have ruled that Title VII’s protections apply in such cases, the answer to this question is immaterial to Kristi’s case, and so we leave it for another day.

Even assuming that Title VII applies to discrimination against one’s spouse, Kristi’s claim falls short because it is based on Javier’s alienage, which is not protected by the statute. Even reading the record in the light most favorable to Kristi, it is beyond dispute that Salin Bank’s actions were motivated by the fact that Javier’s presence in the United States was unauthorized. Novotny first called Hubbs because she learned that Kristi’s husband was an undocumented alien. Hubbs’s report repeatedly noted that Javier was “smuggled into the US illegally,” had “resid[ed] in the US illegally,” was an “illegal alien” and an “illegal immigrant.” The report barely notes Javier’s Mexican heritage, making only passing references to Javier and Kristi’s trips to Mexico. Even Hubbs’s tirade in

his first meeting with Kristi, disagreeable as it was, emphasized Javier’s unauthorized status, not his Mexican ancestry. And the coup de grâce is the fact that after Kristi was fired, Hubbs reported his findings to federal immigration authorities.

There are several reasons why Salin Bank might have been concerned about Kristi’s assistance to Javier in opening his accounts. Even assuming that Javier’s ITIN was legitimate, Salin Bank might have wanted to avoid holding accounts for people who illegally reside in the United States. It would hardly advance the bank’s business to be known as a resource for such aliens. Indeed, these concerns are reflected in the unsent draft Termination Notice of February 13. Hubbs initially highlighted his concern about possible bank fraud or other violations of banking regulations, but his decision to call U.S. Immigration and Customs Enforcement, rather than local or federal banking authorities, could be seen as an effort immediately to dissociate the bank from any irregularity. The record leaves no doubt that Salin Bank’s decision to fire Kristi was not taken because Javier was Mexican, but because Javier was an undocumented alien.

The question, then, is whether Title VII guards against alienage-based discrimination. It does not. Discrimination based on one’s status as an immigrant might have been included within the ambit of “national origin” discrimination, but that is not the path the Supreme Court has taken. The Court instead chose almost 40 years ago to adopt a narrower definition of national origin discrimination for purposes of Title VII. See Espinoza v. Farah Mfg. Co. Reviewing the statute’s legislative history, the Court concluded that the term “national origin” was limited to “the country from which you or your forebears came.” Espinoza, at 89. Thus, national origin discrimination as defined in Title VII encompasses discrimination based on one’s ancestry, but not discrimination based on citizenship or immigration status. Id. The Court thought that it would have been inconsistent for Congress to have proscribed discrimination against aliens given the “longstanding practice of requiring federal employees to be United States citizens.” Id. at 90. In light of these conclusions, the Court explicitly held that “nothing” in Title VII “makes it illegal to discriminate on the basis of citizenship or alienage.” Espinoza, at 95.

We acknowledge that Congress took steps to limit Espinoza’s holding when it enacted 8 U.S.C. § 1324b in 1996. That statute addressed the subject of unfair immigration-related employment practices; it reads as follows in the relevant part:

a. Prohibition of discrimination based on national origin or citizenship status

1. General rule It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in section 1324a(h)(3) of this title) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—

A. because of such individual’s national origin, or

B. in the case of a protected individual (as defined in paragraph (3)), because of such individual’s citizenship status.

page 366But, even apart from the fact that Kristi did not seek to rely on this statute and the fact that it is not

clear that it covers spouses, she cannot overcome the statute’s explicit exclusion of unauthorized aliens from its coverage. Kristi has never contested the fact that Javier was not lawfully present in the country, and as far as we can tell, that is the end of it. Any discrimination suffered by Kristi was not the result of her marriage to a Mexican, but rather the result of her marriage to an unauthorized alien. Under the circumstances, the district court correctly granted summary judgment in Salin Bank’s favor on Kristi’s claims under federal law.

III

[The court then addressed Kristi’s state law claims.]

***

IV

. . . Therefore, we Remand with Instructions to strike the names of the minor children from Salin Bank’s memorandum, but we Affirm the judgment of the district court in all other respects.

Case Questions

1. The court determines that Kristi was fired based on Javier’s status as an undocumented immigrant, not his Mexican nationality. Do you agree that termination based upon the citizenship status (“alienage”) of a worker’s spouse is less unethical or wrongful than termination based on a spouse’s national origin?

2. Although the court does not deem it necessary to give an opinion on the issue in this case, several district courts have ruled that Title VII prohibits discrimination against a worker based upon the national origin of the worker’s spouse or partner. However, this issue remains an unsettled legal area. If you were on a jury asked to decide if Title VII should apply to spouses or partners in national origin cases, how would you rule?

3. According to the court’s dicta in this opinion, workplace tirades against “illegal immigrant” (like that of Mike Hubbs, Salin Bank’s security officer) may be “disagreeable,” but such speech is not evidence of impermissible discrimination unless the specific national origin of the immigrant or immigrant group is referenced. Do you agree that Hubbs’s comments to Kristi Cortezano about her husband’s citizenship status can be clearly distinguished from Javier’s Mexican national origin? Why or why not?

Espinoza v. Farah Manufacturing Co. 414 U.S. 86 (1973)

Cecilia Espinoza, a lawful Mexican alien, applied for a position at Farah Manufacturing’s San Antonio Division. She was denied the position, however, as a result of Farah’s policy to hire only U.S. citizens. The issue to be decided by the court is whether Title VII’s proscription against discrimination on the basis of national origin protects against discrimination on the basis of citizenship. The Court determines that it does not.

Marshall, J.

***

The term “national origin” on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came.

There are other compelling reasons to believe that Congress did not intend the term “national origin” to embrace citizenship requirements. Since 1914, the federal government itself, through Civil Service Commission regulations, has engaged in what amounts to discrimination against aliens by denying them the right to enter competitive examination for federal employment. page 367But it has never been suggested that the citizenship

requirement for federal employment constitutes discrimination because of national origin. To interpret the term “national origin” to embrace citizenship requirements would require us to conclude that Congress itself has repeatedly flouted its own declaration of policy. This Court cannot lightly find such a breach of faith. Certainly Title VII prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin. However, there is no indication in the record that Farah’s policy against employment of aliens had the purpose or effect of discriminating against persons of Mexican national origin.

Douglas, J., dissenting It is odd that the Court which holds that a State may not bar an alien from the practice of law or deny employment to aliens can read a federal statute that prohibits discrimination in employment on account of “national origin” so as to permit discrimination against aliens.

Alienage results from one condition only: being born outside the United States. Those born within the country are citizens from birth. It could not be clearer that Farah’s policy of excluding aliens is de facto a policy of preferring those who were born in this country.

Case Questions

1. Which argument, the majority’s or the dissent, do you find more compelling?

2. What implications does this case have for hiring practices in parts of the United States where immigrants are prevalent?

3. If Espinoza could show that this policy, while arguably “facially neutral,” actually impacts people of Mexican origin differently than people of American origin, wouldn’t Espinoza have a claim for disparate impact?

Reyes-Fuentes v. Shannon Produce Farm, Inc. 671 F. Supp. 2d 1365 (S.D. Ga. 2009)

Plaintiffs are 14 Mexican farm workers who had been legally employed in the United States on the defendant Shannon’s farm. They brought their claim under the Fair Labor Standards Act (FLSA), alleging that the defendant refused to rehire them in retaliation for participating in a prior FLSA lawsuit, since workers who did not participate in that prior suit were rehired. The defendant moved to dismiss, claiming that, since the decision not to rehire occurred in Mexico, FLSA did not apply. The court concluded that FLSA’s anti-retaliation protection could apply extraterritorially.

B. AVANT EDENFIELD, District Judge

***

III. ANALYSIS

Before addressing the substance of Shannon Produce’s arguments, the Court steps back to consider the text and purpose of the FLSA’s anti-retaliation provision as well as the scope of the FLSA’s coverage. Section 215(a)(3) of the FLSA prohibits retaliation against any employee who has filed a complaint or lawsuit under the FLSA. 29 U.S.C. § 215(a)(3).[2] This provision is crucial to the FLSA’s enforcement. Rather than implementing a detailed program of federal supervision to enforce the FLSA, Congress chose to rely upon information and complaints from employees seeking to vindicate their rights. Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960). “Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances. . . . [I]t needs no argument to show that fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions.” Id.

The scope of individuals protected by the FLSA is broad. It covers migrant H-2A workers, Arriaga v. Florida Pacific Farms, L.L.C., and even undocumented aliens working in the United States illegally, Patel v. Quality Inn South. A plaintiff’s citizenship status does not deprive him of FLSA protection, including protection from retaliation, as “page 368Congress has made manifest its intent that all workers, including undocumented aliens,

have the right to be free from unlawful retaliation pursuant to the FLSA.” Contreras v. Corinthian Vigor Ins. Brokerage, Inc. Thus, the issue before this Court does not hinge on the citizenship status of the plaintiffs. Something else must except these plaintiffs from the protections of the FLSA or remove the defendants’ conduct from the FLSA’s reach.

Against this backdrop, Shannon Produce makes three arguments: (1) that the text of FLSA § 213(f) exempts activities that occur outside the U.S. from coverage, doc. # 14-2 at 7-10; (2) that a general presumption against extraterritorial application of statutes bars plaintiffs’ claim, id. at 4–7; and (3) that the alleged retaliation took place outside the U.S., id. at 10–11.

A. Section 213(f)

First, the textual argument. Section 213(f) of the FLSA states that “[t]he provisions of sections 206, 207, 211, and 212 of [the FLSA] shall not apply with respect to any employee whose services during the workweek are performed in a workplace within a foreign country. . . .” 29 U.S.C. § 213(f). Shannon Produce argues that this section bars plaintiffs’ § 215(a)(3) retaliation claim because § 213(f) “explicitly limits the FLSA to conduct that occurs within the U.S”—including retaliation.

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The second but perhaps [a] more glaring defect in the defendants’ construction of § 213(f) is that by its plain language it exempts only employees who performed services “in a workplace within a foreign country. . . .” 29 U.S.C. § 213(f) (emphasis added). The plaintiffs were employees who performed services in Georgia. Doc. # 1

at 1-7. Yet, Shannon Produce insists that “[f]or purposes of determining jurisdiction, it is the location where the allegedly retaliatory act occurred—here, in Mexico, where the applicants were allegedly denied re-employment— not the location of the decision that governs.” Doc. # 14-2 at 10. That assertion is inconsistent with the plain language of § 213(f) as well as case law holding that the location of the workplace controls whether § 213(f)’s extraterritoriality exemption applies.

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C. Reyes-Gaona

Finally, Shannon Produce relies heavily on the Fourth Circuit case Reyes-Gaona v. North Carolina Growers Ass’n, where the court held that a Mexican national who submitted an application in Mexico for a job in the U.S. could not sue for employment discrimination under the ADEA. Id. Citing extraterritoriality concerns, the court concluded, “The simple submission of a resume abroad does not confer the right to file an ADEA action.” Id. at 866. Notably, Reyes-Gaona was decided under the post–1984 version of the ADEA which had been amended so that its extraterritorial provision no longer incorporated FLSA § 213(f). Id. at 864–865. However, the court discussed the pre–1984 version of the ADEA (which did incorporate FLSA § 213(f)), and noted that there was a presumption that “prevented the ADEA from regulating events taking place in foreign countries even when they involved citizens of the United States. And the Act certainly could not have reached the even more attenuated situation of a foreign national applying in a foreign country for work in the United States.” Id.

However, plaintiffs’ FLSA retaliation claim is different from the ADEA discrimination claim considered in Reyes-Gaona. The Fourth Circuit was legitimately concerned that giving ADEA protection to foreign applicants would allow millions of first time foreign job applicants to sue U.S. employers for discrimination. Id. at 866 (“Expanding the ADEA to cover millions of foreign nationals who file an overseas application for U.S. employment could potentially increase the number of suits filed and result in substantial litigation costs. If such a step is to be taken, it must be taken via a clear and unambiguous statement from Congress rather than by judicial fiat.”). Such concern is simply not present when allowing foreigners with a prior employer/employee relationship in the U.S. to sue for retaliation under the FLSA, because liability under the FLSA is predicated on the existence of an employer/employee relationship. De Leon-Granados v. Eller & Sons Trees, Inc., Glover v. City of N. Charleston, (§ 215(a)(3) does not extend to job applicants who are neither former nor current employees of the retaliating employer). Thus, the universe of potential foreign litigants to an FLSA retaliation claim is substantially limited. The significance of a prior employment relationship was also emphasized in the Reyes- Gaona concurrence which concluded, “Had [the employee] been hired by [the employer], once he began working in this country, the ADEA would have protected him from unlawful employment discrimination.” Id. at 867 (Motz, J., concurring).

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page 369

IV. CONCLUSION

Thus, neither § 213(f) nor general extraterritoriality principles stand in the way of the plaintiffs’ § 215(a)(3) retaliation claim. The plaintiffs do not ask this Court to apply the FLSA to regulate foreign working conditions. The § 215(a)(3) cause of action is being invoked as Congress intended—to prevent retaliation for filing a lawsuit to enforce workplace standards in the U.S. Defendants’ Motion to Dismiss, doc. # 14, is DENIED.

Case Questions

1. The decision involving hiring was made outside of the United States. Therefore, do you agree with the court’s reasoning surrounding the extra-territorial reach of the FLSA?

2. Given the court’s reasoning in this case, can you imagine a “slippery slope” involving extra-territoriality? If you were arguing the case for the defendant farm, what would be your most persuasive argument utilizing a slippery slope? “If

this provision of the FLSA applies extra-territorially, then . . .” what is the next step? And with what consequences for employers?

3. Do you agree with the Court in Patel that protecting undocumented immigrants by requiring that employers treat them the same as other workers will discourage undocumented immigration?

4. Are you persuaded, as was the court, by the context and history of the FLSA? Does it make a difference that we are making decisions today based on the history of an act that was passed into law decades ago? What relevance or weight should a court give to that history in making its decisions today?