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 applicant�s or employee�s 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 ancestor�s 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 Page 456Page 456

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: Employee�s place of birth Ethnic characteristics or origins Physical, linguistic, or cultural traits closely associated with a national origin group Pages 456, 457Pages 456, 457

10. 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 Example: attire of national origin, such as traditional African dress An employer may set forth why an employee�s being of a specific national origin is necessary for the position Page 457Page 457

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 Pages 466, 467Pages 466, 467

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 employee�s concerns in job assignments and work-related activities is key to their effective resolution Pages 467, 468Pages 467, 468

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 Page 481Page 481

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 Pages 481-483Pages 481-483

19. Guidance on Remedies Available to Undocumented Workers In 2002, the EEOC rescinded its Guidance. This was as a result of the Supreme Court�s 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