Chapter 7Chapter 7National Origin National Origin DiscriminationDiscrimination

McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

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Learning ObjectivesLearning Objectives Describe the impact and implications of the

changing demographics within America 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 ObjectivesLearning Objectives 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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IntroductionIntroduction The U.S. is a melting pot of different cultures

Traditional distinctions in the law between race and national origin are becoming blurred

A decision based on either race or national origin is illegal

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Legislation Prohibiting National Origin Legislation Prohibiting National Origin DiscriminationDiscrimination

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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Realities about National Origin Realities about National Origin DiscriminationDiscrimination

“Citizenship” and “national origin” are not synonymous

All business establishments (e.g. restaurants) must abide by Title VII non-discrimination principles during hiring

It is illegal discrimination for an employer to require that employees speak only English at work

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The Changing WorkforceThe Changing Workforce In 2009, foreign-born workers represented more

than 15.5 percent of U.S. workers

The median weekly earnings of foreign-born full-time workers was significantly less than for non-foreign-born workers

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The Changing WorkforceThe Changing Workforce By 2018, the U.S. workforce is expected to be

comprised of

17.6 percent Hispanics

12.1 percent African-Americans

5.6 percent Asians

Complaints based on alleged national origin discrimination on the rise since 1999

Represents the fastest-growing source of complaints

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Regulatory OverviewRegulatory Overview National origin discrimination protection

offered by Title VII: 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

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Regulatory OverviewRegulatory Overview An employee may claim discrimination on the

basis of national origin if

He or she is a member of a protected class

He or she was qualified for the position for which he or she applied or in which he or she was employed

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

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

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Member of the Protected ClassMember of the Protected Class Based only on country of origin, not on country

of citizenship

No protection based on status as aliens

National origin encompasses:

Employee’s place of birth

Ethnic characteristics or origins

Physical, linguistic, or cultural traits closely associated with a national origin group

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Qualification/BFOQsQualification/BFOQs Claimant must show that he or she meets the

job’s requirements

No accommodation of one’s national origin is required of employers

An employer may set forth why a specific national origin is a legitimate job requirement (bona fide occupational qualification)

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English Fluency and Speaking Native English Fluency and Speaking Native Languages in the WorkplaceLanguages in the Workplace

“English-only” policies have become increasingly relevant

Employers should not permit managers to arbitrarily impose language restrictions

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English Fluency and Speaking Native English Fluency and Speaking Native Languages in the WorkplaceLanguages in the Workplace

To be protected the employer must show

English fluency is required for the job

The requirement is necessary to maintain supervisory control of the workplace

English-only rules

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Adverse Employment Action and Adverse Employment Action and Dissimilar TreatmentDissimilar Treatment

Adverse employment action: Any action or omission that takes away a benefit, opportunity, or privilege of employment from an employee

It includes

Demotion

Termination

Removal of privileges afforded to other employees

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Adverse Employment Action and Adverse Employment Action and Dissimilar TreatmentDissimilar Treatment

Adverse effect may arise from

Disparate treatment

Disparate impact

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Harassment on the Basis of National Harassment on the Basis of National OriginOrigin

Claims have been on a sharp increase

Not all harassment is prohibited

Must be severe or pervasive

Common concerns include

Ethnic slurs

Workplace graffiti

Other offenses based on employee traits

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Guidelines on Discrimination Because Guidelines on Discrimination Because of Religion or National Originof Religion or National Origin

Applies to federal agencies or employers who enter into contracts with a government agency

Individuals must be hired and retained without regard to their religion or national origin

The guidelines impose on the federal contractor an affirmative obligation to prevent discrimination

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Guidelines on Discrimination Because Guidelines on Discrimination Because of Religion or National Originof Religion or National Origin

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

Native Americans

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Middle Eastern Discrimination After Middle Eastern Discrimination After September 11, 2001September 11, 2001

“Code Z”

Key discrimination issues

Different treatment due to attire

Ethnic harassment, particularly in relation to security concerns

More stringent security checks or other preemployment requirements

Effective resolution – Sensitivity to employee’s concerns

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Citizenship and the Immigration Reform Citizenship and the Immigration Reform Control ActControl Act

Legal aliens are often restricted from access to certain government or other positions by statute

“Political function” exception

Immigration Reform and Control Act

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Citizenship and the Immigration Reform Citizenship and the Immigration Reform Control ActControl Act

Difference between Title VII and IRCA

Title VII – does not require proof of discriminatory intent

IRCA – requires that the adverse action be knowingly and intentionally discriminatory

Innocent or negligent discrimination is a complete defense to a claim of discrimination under IRCA

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Undocumented WorkersUndocumented Workers IRCA makes it unlawful for employers to hire,

recruit, or refer for a fee to unauthorized workers

Employers are required to verify all newly hired employees

Form I-9

“No-match” rule implemented in 2007

Supplemental Proposed Rule in March 2008

Supplemental Final Rule in October 2008

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Undocumented WorkersUndocumented Workers Obama administration

Rescinded “no-match” rule in 2009

Focused on civil and criminal actions against employers that knowingly hired undocumented workers

Immigration and Customs Enforcement (ICE)

IRCA

Employers subjected to random compliance inspection under the General Administrative Plan

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Undocumented WorkersUndocumented Workers EEOC

Workers’ undocumented status does not justify workplace discrimination

Employers may be liable for monetary remedies

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 Alternate Basis for National Origin or Citizenship DiscriminationCitizenship Discrimination

Identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics

Section 1981 – discrimination because of what they are

St. Francis College v. Al-Khazraji

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Management TipsManagement Tips In case of BFOQs ensure that only persons of

that origin are selected

Employees can file national origin discrimination claims even if they have been simply perceived to be of a particular origin

Customer, client, or co-worker preference, comfort, or discomfort cannot be stated as the source of BFOQ.

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Management TipsManagement Tips 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