chapter 7: National Origin Discrimination

4 Characteristics of Immigration Reform and Control Act?

- Contrasts to Title VII, IRCA prohibits discrimination on basis of citizenship or intended citizenship. - Prohibits the hiring of illegal aliens - Does allow discrimination in favor of US citizens against legal aliens - Corporate officers can be personally liable

National Origin: Prima facie case

- 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. Familiar Disparate Treatment and Disparate Impact analyses apply

English-only rule

-Courts generally ruled in employer's favor if rule would promote safety and product quality and stop harassment -rule must be justified by a compelling business necessity -'English-only' rules as facially neutral policy in Disparate Impact cases

3 examples of Adverse Employment Action

-Demotion -Termination -Removal of privileges afforded to other employees

What are 3 key discrimination issues regarding backlash after 9/11

-Different treatment due to attire- Ethnic harassment, particularly in relation to security concerns.- More stringent security checks or other preemployment requirements

What are Common concerns of harassment based on National origin

-Ethnic slurs, workplace graffiti, other offenses based on presumed employee traits ie. birthplace, culture, accent or skin color Key consideration is effect on victim

Employers are required to verify all newly hired employees. What form accomplishes this?

-Form I-9 -E-Verify

IRCA civil & criminal penalties for hiring undocumented immigrants?

-fines are not imposed for paperwork violations alone or for document status unknown. I-9 audits are increasingly happening.

other basis for national origin discrimination claim

-is identified with or connected to a person of a specific national origin, married -Member of an organization that ids with a national group - participant in school/religious org. that is affiliated with a national origin group. - surname - perceived by an employers to be a member of certain nat. origin group.

What are the BFOQs allowed under IRCA?

1. English language skill -necessary to normal operation 2. Citizenship requirements specified by law, regulation, executive order, or government contracts, along with citizenship requirements that the US AG determines to be essential for doing business with Govt.

IRCA employee size requirements

4-14 employees prohibited from discriminating on the basis of national origin >4 my not discriminate on the basis of citizenship.

What is the Defense for national origin discrimination

burden falls to the employer to identify their is a BFOQ or a legitimate nondiscriminatory reason (LNDR).

business necessity defense

An affirmative defense under Title VII of the Civil Rights Act. It is raised to disparate impact claims and asserts that a facially neutral but discriminatory policy is job related. ie English only policy

Statutes, discrimination is illegal ?

An employment decision based on either race or national origin is illegal Statutes: -Title VII, Civil Rights Act of 1964 -Immigration Reform and Control Act of 1986

2nd factor for prima facie: Qualification

As always, claimant must show that s/he meets the job's requirements.

Who is excluded from the provisions because of coverage elsewhere in Office of Federal Contract Compliance Rules?

Blacks, Spanish-surnamed Americans, Asians, and Native Americans.

The Changing Workforce

By 2018, the U.S. workforce will be: -17.6 percent Hispanics -12.1 percent African-Americans - 5.6 percent Asians -Total: 35.3 percent 1/3 colored The median weekly earnings of foreign-born full-time workers was significantly less than for non-foreign-born workers *Claims of national origin discrimination are one of the fastest-growing categories under Title VII*

Immigration Reform Control Act vs Title VII -in proving disparate impact

Difference: -Title VII - Does not require proof of discriminatory intent. Familiar Disparate Treatment and Disparate Impact analyses -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

Does EEOC allow undocumented workers to be discriminated against?

EEOC -Workers' undocumented status does not justify workplace discrimination -Employers may be liable for monetary remedies

provisions for National Origin and Religion include which ethnic groups?

Eastern, middle, and southern European ancestry, including Jews, Catholics, Italians, Greeks and Slavs.

3rd factor of prima facie: Adverse Employment Action

Employee has suffered an Adverse employment action: Any action or omission that takes away a benefit, opportunity, or privilege of employment from an employee. suffered adverse effect

Management Tips

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. Federal contractors must follow the Guidelines on Discrimination Because of Religion or National Origin

Employers are required to make accommodations in regards to national origin?

False - No accommodation of one's national origin is required of employers.

National Origin-based Harassment prima facie elements:

Familiar prima facie case elements -Must be *unwelcome*, *severe* or *pervasive*, employee reasonably finds the workplace to be hostile or abusive. cause differential job difficulty, *employer* link

Guidelines on discrimination b/c of religion or national origin apply to...

Federal agencies or contractors -impose on these employers an affirmative duty to prevent discrimination.

What are the 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.

EEOC v. Premier Operator Services Inc.

Had an English only policy. District court struck down. Employer had no business necessity for the policy. English only was a tool to discriminate based on national origin

Alternate Basis for National Origin or Citizenship Discrimination: Section 1981

Identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics C. R. A. Section 1981 - Equal rights under the law: -To make/enforce contracts . . . As is enjoyed by white citizens.

OFCCP (Office of Federal Contract Compliance Programs) Guidelines on Discrimination Because of Religion or National Origin

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

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.

Middle Eastern Discrimination After September 11, 2001

Key discrimination issues: -Different treatment due to attire -Ethnic harassment, particularly in relation to security concerns -More stringent security checks or other pre-employment requirements -hijab-no religious accommodations.

English Fluency as a qualification, and Language Restrictions

Language fluency and "English-only" policies have become increasingly relevant in the workplace -May be based on Disparate Treatment or Disparate Impact

Citizenship and the Immigration Reform Control Act

Legal aliens are often restricted from access to certain government or other positions by statute i.e. "Political function" exception, President

1st factor Member of the Protected Class regards to national origin based on...

National origin encompasses: -Employee's place of birth, ancestor's place of origin. -Ethnic characteristics or origins -Physical, linguistic, or cultural traits closely associated with a national origin group

Is customer preference a BFOQ?

No

should employers permit arbitrarily imposed language restrictions?

No - EEOC position: narrow availability, based on business justifications (Job related and of business necessity)

Cortezano v. salin bank & trust co.

No protection based on status as aliens. many forms of discrimination and harassment may not satisfy a prima facie case under Title VII.

Garcia v. Spun Steak Company

Required bilingual workers to speak only English while on the job. -Court rejected, Title VII does not protect the ability of workers to express their cultural heritage at the workplace. Concerned only with disparities in treatment.

In regards to qualification of prima facie case, what must the claimant show?

That he/she met the job's requirements.

4th factor of prima facie:

The employee show that her position was filled by someone who is not a member of her protected class, or others were treated differently than she. Case of disparate treatment.

American born are protected against discrimination on the basis of their American origin?

True

IRCA makes it unlawful for employers to hire, recruit, or refer for a fee to unauthorized workers?

True

Does Fair Labor Standards Act protect unauthorized workers from abuse?

Yes, i.e. minimum wage, overtime, and child labor

Adverse effect may arise from...

disparate treatment and disparate impact

Bona Fide Occupational Qualification (BFOQ)

employer may claim a specific national origin is a legitimate job requirement, reasonably necessary for that business. -No BFOQ's for race or color

What represents the fastest growing source of discrimination complaints?

national origin

EEOC considers it illegal discrimination for an employer to require ___ but the courts sometimes disagree?

to speak only English

What is Code Z?

Backlash classification to designate complaints of "backlash discrimination from Muslim, Sikh, Arab, Middle Eastern or South Asian.

Being a member of a protected class in regards to national origin is based on...

Country of origin, not country of citizenship.

To be protected against English fluency case, employer must show....

Courts have allowed restrictions where based on sound business interests -English fluency is required for the job - The requirement is necessary to maintain supervisory control of the workplace. -Customer factors: "English-only on the sales floor," ability to be understood

Employer liability in harassment arises...

looks at conduct was physically threatening or intimidating, its severity, pervasiveness throughout the working environment, a reasonable person would find the conduct offensive/hostile, and how the employer responded. -Employer knows or should have known of the harassment.