Chapter 7 National Origin Discrimination McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

Learning 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 Page 299

Learning 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 Page 299

Introduction 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 Page 300-301

Legislation Prohibiting National Origin Discrimination Title VII, Civil Rights Act of 1964 Sec. 703(a) Immigration Reform and Control Act of 1986 Sec. 274A(a) Sec. 274(B)(a) Page 301

Realities about National Origin Discrimination “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 Page 302

The 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 Page 302

The 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 Page 302

Regulatory 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 Page 303

Regulatory 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 Page 303

Member 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 Page 303-304

Qualification/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) Page 304

English Fluency and Speaking Native Languages in the Workplace “English-only” policies have become increasingly relevant Employers should not permit managers to arbitrarily impose language restrictions Page 305-306

English Fluency and Speaking Native Languages 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 Page 306-307

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 It includes Demotion Termination Removal of privileges afforded to other employees Page 307-308

Adverse Employment Action and Dissimilar Treatment Adverse effect may arise from Disparate treatment Disparate impact Page 307-308

Harassment on the Basis of National Origin 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 Page 308-309

Guidelines on Discrimination Because of 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 Page 309-310

Guidelines on Discrimination Because of 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 Page 309-310

Middle Eastern Discrimination After September 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 Page 310-311

Citizenship and the Immigration Reform Control Act Legal aliens are often restricted from access to certain government or other positions by statute “Political function” exception Immigration Reform and Control Act Page 311-312

Citizenship and the Immigration Reform Control 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 Page 312

Undocumented 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 Page 312-313

Undocumented Workers Obama administration IRCA 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 Page 317-318

Undocumented Workers EEOC Fair Labor Standards Act 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 Page 318-319

Alternate Basis for National Origin or Citizenship 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 Page 321

Management 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. Page 320

Management 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 Page 320