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Bennett9eBookCh7NationalOriginDiscrimination.pptxChapter 7 National Origin Discrimination
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Learning Objectives (1)
Describe the impact and implications of the changing demographics on the American workforce
Define the prima facie case for national origin discrimination under Title VII
Explain the legal status surrounding “English-only policies” in the workplace
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Learning Objectives (2)
Describe a claim for harassment based on national origin and discuss how it might be different from one based on other protected classes
Identify the difference between citizenship and national origin
Explain the extent of protection under the Immigration Reform and Control Act
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Introduction
United States is considered a melting pot of different cultures
National origin was included in Title VII’s list of protected classes
Ensures that that employers did not make employment decisions based on employees’ or applicants’ country of origin
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Legislation Prohibiting National Origin Discrimination
Statutes
Title VII, Civil Rights Act of 1964
Sec. 703(a)
Immigration Reform and Control Act of 1986
Sec. 274A(a)
Sec. 274(B)(a)
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The Changing Workforce
In 2015, there were 26.3 million foreign-born workers in the U.S. workforce
16.7 percent of the total labor force
The median weekly earnings of foreign-born full-time workers were significantly less than for non-foreign-born workers
Complaints to the EEOC based on alleged national origin discrimination have been on the rise since 1997
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Regulatory Overview (1)
National origin discrimination protection offered by Title VII: It is unlawful for an employer to limit, segregate, or classify employees
Employer should not discriminate in any way on the basis of national origin that would deprive them of the privileges, benefits, or opportunities of employment
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Regulatory Overview (2)
Employee may successfully claim discrimination on the basis of national origin if it is shown that:
She or he is a member of a protected class
She or he was qualified for the position for which she or he applied or in which she or he was employed
Employer made an employment decision against this employee or applicant
Position was filled by someone who was not a member of the protected class
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Member of the Protected Class (1)
National origin encompasses:
Employee’s place of birth
Ethnic characteristics or origins
Physical, linguistic, or cultural traits closely associated with a national origin group
No protection based on status as aliens
Law provides protection against discrimination based only on country of origin, not on country of citizenship
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Qualification/BFOQs
Claimant must show that he or she meets the job’s requirements
Employer may claim that national origin is actually a bona fide occupational qualification for a job (BFOQ)
Case: Espinoza v. Farah Mfg. Co.
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English Fluency as a qualification, and Language Restrictions (1)
Fluency requirements, “English-only” policies, and accent rules have become increasingly relevant in the workplace
May be based on hostile work environment, disparate treatment, or disparate impact
Case: Pachero v. New York Presbyterian Hospital
EEOC has pointed out that the degree of fluency required varies from job to job
Blanket fluency requirements applying to all jobs might not be legal
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English Fluency as a qualification, and Language Restrictions (2)
Courts have allowed restrictions that were based on sound business interests
Closely examine employment decisions based on accent
Scenario 1
English fluency is required for supervisory control of the workplace
Case: Garcia v. Spun Steak
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Adverse Employment Action and Dissimilar Treatment
Adverse employment action: Any action or omission that takes away a benefit, opportunity, or privilege of employment from an employee
Includes:
Demotion
Termination
Removal of privileges afforded to other employees
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National Origin-based Harassment
Claims have been on a sharp increase
Familiar prima facie case elements
Claims are only actionable if the harassment was so severe or pervasive that the workplace was found to be hostile or abusive
Common incidents - Ethnic slurs, workplace graffiti, other offenses based on presumed employee traits
Key concern is whether a reasonable person would find the conduct offensive and/or hostile
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Guidelines on Discrimination Because of Religion or National Origin (1)
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
Applies to federal agencies or employers who enter into contracts with a government agency
Ensure that individuals are hired and retained without regard to their religion or national origin
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Guidelines on Discrimination Because of Religion or National Origin (2)
Provisions include the following ethnic groups:
Eastern, Middle, and Southern European ancestry, including Jews, Catholics, Greeks, and Slavs
Excluded because of coverage elsewhere
Blacks, Spanish-surnamed Americans, Asians, and Native Americans
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Middle Eastern Discrimination After September 11, 2001 (1)
“Code Z” established by EEOC
Created to designate complaints of “backlash discrimination” from individuals who are perceived to be Muslim, Sikh, Arab, Middle Eastern, or South Asian
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Middle Eastern Discrimination After September 11, 2001 (2)
Key discrimination issues
Different treatment because of religious attire
Ethnic harassment, which may unfairly relate to security concerns
More stringent security checks or other pre-employment requirements
Effective prevention - Sensitivity to employees' concerns about possible instances of ethnic harassment
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Citizenship and the Immigration Reform Control Act (1)
Non-US citizens are often restricted from access to certain government or other positions by statute
“Political function” exception
Case: Espinoza v. Farah Manufacturing Company
Immigration Reform and Control Act (IRCA)
Unlawful to knowingly hire, recruit, or refer aliens not authorized to work in the United States
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Citizenship and the Immigration Reform Control Act (2)
Employers not subject to Title VII’s prohibitions because of small size may still be covered by IRCA’s anti-discrimination provisions
Employers with 4 to 14 employees are prohibited from discriminating on the basis of national origin
Employers with 4 or more employees may not discriminate on the basis of citizenship
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Undocumented Workers (1)
IRCA made it unlawful for employers to hire, recruit, or refer for a fee to non-citizens who are not authorized to work
Employers are required to verify all newly hired employees using a Form I-9
Department of Homeland Security ruled that employers must terminate all “no-match” workers
“No-match” workers - Workers who used false social security numbers
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Undocumented Workers (2)
Obama administration focused on Employers
Reviewed the “no-match” rule in 2009
Social Security Administration issues notices to employers with employees whose Social Security numbers did not “match” the SSA’s records
Immigration and Customs Enforcement (ICE) sends Notice of Inspection to employers
IRCA
Employers subjected to random compliance inspection under the General Administrative Plan
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Undocumented Workers (3)
EEOC
Workers’ undocumented status does not justify workplace discrimination
Employers' liability for monetary remedies promotes the goal of deterring unlawful discrimination
Case: Hoffman Plastic Compounds Inc. v. NLRB
Fair Labor Standards Act
Protects unauthorized workers from abuse
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Alternate Basis for National Origin or Citizenship Discrimination: Section 1981
Law applies to identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics
Section 1981 – Relates to discrimination because of ethnic characteristics or race
St. Francis College v. Al-Khazraji
Later cases: Narrow interpretation
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Management Tips (1)
Only individuals of an origin can do the specific job based on the BFOQ
Employees can file national origin discrimination claims even if they have been simply perceived to be of a particular origin
English fluency may be required but one is not allowed to discriminate because of an accent
Customer, client, or co-worker preference, comfort, or discomfort cannot be stated as the source of BFOQ
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Management Tips (2)
Federal contractors must follow the Guidelines on Discrimination Because of Religion or National Origin
Before instituting a policy, consider the implications of both Title VII and IRCA
Recognize the concerns of Middle Eastern employees in the post-September 11 era
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