National Origin Discrimination

1
National Origin Discrimination

• CHAPTER 10

2
Myths About NationalOrigin Discrimination

• Citizenship and national origin are
  synonymous
• A restaurant may hire whomever it wishes to
  represent the national origin of the restaurant
• It is not illegal discrimination for an employer
  to require that employees speak only English at
  work

3
Statutory Basis

• Title VII of the Civil Rights Act of 1964
  prohibits discrimination in employment based on
  national origin
• Immigration Reform and Control Act of 1986
  prohibits discrimination in employment based on
  national origin or citizenship status, other than
  an unauthorized alien

4

• America is a melting pot
• Employers may not make employment decisions based
  on preconceived ideas about an applicants or
  employees country of origin
• National origin is surprisingly complex

5
Background

• To claim discrimination an employee must show he
  or she is a member of a protected class
• National origin defined as ancestors place of
  origin or physical, cultural, or linguistic
  characteristics of a national origin group
• National origin is NOT based on citizenship

6
Background

• An employer may not
• Group its employees on the basis of national
  origin
• Make employment decisions on that basis
• Implement policies or programs that affect those
  with 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.
7

• To claim discrimination an employee must show he
  or she is qualified for the position
• Employer may show that national origin is a BFOQ
• Employers should not arbitrarily impose language
  restrictions, although business-related language
  restrictions are acceptable
• To show discrimination an employee must that he
  or she was adversely affected by an employment
  decision

8

• Can occur through disparate treatment or
  disparate impact
• To show discrimination an employee must show the
  position was filled by someone not a member of
  his or her protected class

9
Member of the Protected Class

• No protection based on status as aliens
• National origin encompasses
• Employees place of birth
• Ethnic characteristics or origins
• Physical, linguistic, or cultural traits closely
  associated with a national origin group

National origin Individuals or her or his
ancestors place of origin (as opposed to
citizenship), physical, cultural, or linguistic
characteristics of an origin group.
10
Qualification/BFOQs

• Claimant must show that he or she meets the jobs
  requirements
• No accommodation of ones national origin is
  required of employers
• Example attire of national origin, such as
  traditional African dress
• An employer may set forth why an employees being
  of a specific national origin is necessary for
  the position

11
Guidelines on Discrimination Because of Religion
or National Origin

• Federal guidelines apply only to federal
  contractors or agencies to ensure employment
  without regard to religion or national origin
• Employers should also engage in appropriate
  activities to remedy any existing deficiencies

12
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
• Provisions include these ethnic groups
• Eastern, Middle, and Southern European ancestry,
  including Jews, Catholics, Greeks, and Slavs
• Blacks
• Spanish-surnamed Americans
• Asians
• Native Americans

13
Middle Eastern Discrimination After September 11,
2001

• Code Z
• Claims by Muslims and Middle Easterners increased
  dramatically
• Key discrimination issues
• Different treatment due to attire
• Ethnic harassment, particularly in relation to
  security concerns
• More stringent security checks or other
  preemployment requirements
• Remaining sensitive to such employees concerns
  in job assignments and work-related activities is
  key to their effective resolution

14
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
• Being Jewish vs. being Amish

15
Citizenship and the Immigration Reform and
Control Act

• U.S. Department of Labor
• Compliance Assistance
• U.S. Department of Agriculture
• Summary

16
Citizenship and the Immigration Reform and
Control Act

• Title VII does not prohibit discrimination on the
  basis of citizenship
• IRCA prohibits hiring unauthorized aliens
• Requires verification of authority to work
• Established civil and criminal penalties for
  hiring illegal aliens

17

• IRCA does prohibit discrimination on the basis of
  citizenship in certain circumstances
• Discrimination in favor of U.S. citizens is
  permitted
• Small employers not subject to Title VII may
  still be liable under ICRA

18
The Changing Workforce

• Increase in the number of immigrants
• Projected workforce percentages for 2008
• African Americans 11.5
• Hispanics 12.7
• Asians, Pacific Islanders, American Indians, and
  Alaska Natives 5.2
• Adherence to Title VII should be viewed as a
  business imperative
• Employers must be cognizant of the varying needs
  of employees from different backgrounds

19
Guidance on Remedies Available to Undocumented
Workers

• In 2002, the EEOC rescinded its Guidance.
• This was as a result of the Supreme Courts
  decision in Hoffman Plastic Compounds, Inc. v.
  National Labor Relations Board, 122 S. Ct. 1275
  (2002).

20
Workforce 2000

• Increased number of immigrants to U.S. in recent
  years
• Failure to use this diversity will probably
  result in loss of effectiveness and productivity
• Adherence to Title VII is a business imperative,
  not just legal compliance

21

• See Gad-Tadros v. Bessemer Venture Partners, 326
  F.Supp. 417, 2004 U.S.Dist. LEXIS 14165
  (E.D.N.Y., 2004)

22
ManagementConsiderations

• Remember that courts have a high standard for
  BFOQs in national origin
• Be sure any language prohibitions are required by
  business
• Consider both Title VII and IRCA before
  instituting policy
• Be sensitive and flexible