Employment Law

1. Employment Law Jessica Neilson Employment Law

2. Chapter 11: National Origin Discrimination Employment Law

3. Reminder: How many employees are req’d for Title VII to apply? • 15 Employment Law

4. National origin discrimination: EEOC Guidelines • No discrimination on the basis of: • EE’s place of origin (or her ancestor’s) • Physical, cultural, or linguistic characteristics of a national origin group • Marriage, association, membership in organizations, or attendance at schools or churches associated with a national origin group • A name or spouse’s name • Height or weight specifications that are not related to successful job performance • Aptitude UNLESS applied equally to all and relate to successful job performance • Accent/manner of speaking unless legitimate, nondiscriminatory reason for action Employment Law

5. Note overlap national origin and race, color • What claims might the following people bring? • French person, when a supervisor called him a ‘stupid Frog’ • Turbaned Sikh, when a supervisor called him a ‘terrorist’ • A supervisor who mocks the pronunciation of a Chinese employee Employment Law

6. Post 9-11 Increase of discrimination against those of Arabian descent • The American-Arab Anti-Discrimination Committee (ADC), formed in 1980, reported a fourfold increase in hate crimes and incidents of discrimination since the attacks. • Amnesty International reports rise in hate crimes and racial profiling for Arabs, Muslims, and others of Middle Eastern descent Employment Law

7. EEOC reports ‘significant’ increasein charges re: workplace harassment and termination based on EE’s national origin and/or religion • Increase in the number of charges filed by employees who are (or are perceived to be) Muslim, Arab, Afghani, Middle Eastern or South Asian. (approximately 20%) • EEOC has also started to file a number of lawsuits based on post-9/11 harassment or discrimination – 3 examples: Employment Law

8. EEOC’s lawsuits • EEOC filed a lawsuit against a corporation alleging that a naturalized American citizen of Palestinian descent was singled out and discharged within days of the 9/11 attacks for no other reason than his national origin. • In 2002 lawsuit, EEOC alleged that, in the wake of the terrorist attacks of Sept. 11, 2001, a museum fired an Afghan-American Muslim man on the basis of his national origin and religion. The complaint further alleges that Mr. Ayub, the only employee of either Muslim or Afghan origin, was ostracized by his co-workers, and that one of Mr. Ayub’s co-workers falsely reported Mr. Ayub to the authorities as a suspected terrorist. • EEOC alleged that a customer service representative was denied permission to cover her head with a scarf during the holy month of Ramadan, consistent with her religious tenets. It is alleged that the company eventually disciplined, suspended and terminated the employee for failure to remove her head scarf. Employment Law

9. EEOC’s website re: this topic • http://www.eeoc.gov/facts/backlash-employee.html Employment Law

10. Harvard’s Hate Crimes Report 2005 • http://www.pluralism.org/research/profiles/display.php?profile=74090 Employment Law

11. EEOC’s Facts re: National Origin Discrimination • http://www.eeoc.gov/facts/fs-nator.html • http://www.eeoc.gov/origin/ • http://www.eeoc.gov/facts/backlash-employer.html Employment Law

12. Facts and Figures • In Fiscal Year 2004, EEOC received 8,361 charges of national origin discrimination. Including charges from previous years, 8,943 charges were resolved, and monetary benefits for charging parties totaled $22.3 million (not including monetary benefits obtained through litigation). Employment Law

13. Theories Available • Disparate Treatment • Disparate Impact • Hostile Work Environment Employment Law

14. Recent Examples of EEOC cases • http://www.eeoc.gov/origin/lit_examples.html Employment Law

15. English Only Rules • Limited English Only Rules are generally upheld as based on legitimate business reasons unless applied unequally or “absolute” • EEOC argues “Absolute” English only rule is presumed to violate Title VII and create disparate impact • However, Courts use traditional rule requiring P to establish discrim effect before shifting burden to ER to justify the requirement • Garcia v. Spun Steak: English requirement did not create atomosphere of inferiority, intimidation, and isolation • Rationales deemed effective: lessening racial tension, promoting effective supervision, safety and efficiency Hostile work environment theory may be used (Prado, P. 257) Employment Law

16. Accent Discrimination • Does accent “materially interfere” with job performance? • If yes, Er may have a legitimate nondiscriminatory reason for an adverse employment decision. • Exs: Russian woman applying for job as an accountant, turned down because of accent – what result? Employment Law

17. Update to Book: Discrimination against non-citizens Discrimination against non-citizen is not prohibited under Title VII (Espinoza at 279) • However, the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b protects U.S. citizens and legal immigrants from employment discrimination based upon citizenship or immigration status and national origin, from unfair documentary practices relating to the employment eligibility verification process, and from retaliation • Enforced by the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) in the Civil Rights Division • http://www.usdoj.gov/crt/osc/htm/WebOverview2005.htm Employment Law

18. OSC’s turf: • http://www.usdoj.gov/crt/osc/htm/Webtypes2005.htm • Example of case: http://www.usdoj.gov/opa/pr/1999/February/051cr.htm Employment Law

19. President Johnson on Affirmative Action Plans: • "You do not take a person who for years has been hobbled by chains, and liberate him, bring him up to the starting line, and then say, 'You are free to compete with all the others.'" Employment Law

20. What IS an ‘affirmative action plan?’ • The United States Commission on Civil Rights defines affirmative action as: • "A contemporary term that encompasses any measure, beyond simple termination of a discriminatory practice, that permits the consideration of race, national origin, sex or disability, along with any other criteria, and which is adopted to provide opportunities to a class of qualified individuals who have either historically or actually been denied those opportunities and /or to prevent the recurrence of discrimination in the future." Employment Law

21. Affirmative Action Plans in Employment • Federal government contractors have affirmative action obligations based on Exec. Order 11246, The Rehabilitation Act • (Nearly 27 million employees – approximately 23% of the total civilian workforce are employed by federal govt contractors) • The requirements for written affirmative action plans apply to contractors or subcontractors with annual federal contracts totaling $50,000 or more and at least 50 employees. These contractors and subcontractors must create and implement AAPs annually. • The plans consist of statistical analyses of the employer’s "underutilization" of individuals from certain protected classes and include the steps that will be taken to improve their representation in the employer’s workforce. • Separate AAPs must be created for women and minorities, Vietnam era and disabled veterans, and disabled individuals. Although the plans must be written each year, they do not have to be filed with the Office of Federal Contract Compliance Programs (the agency that oversees the contracts) until an audit is conducted. Employment Law

22. Affirmative Action Plan’s in Employment, Cont’d • Private employers do not have to have an AAP, unless they have been ordered by a court or agency to have them • If a private employer has an AAP, it is subject to lawsuits for reverse discrimination Employment Law

23. Affirmative Action Plans, Cont’d • In order for an AAP to be legal, it must…. • Not be a QUOTA or ‘setaside’ • Must correct effects of Employer’s past or prior discriminatory practices (manifest imbalance; traditionally segregated workforce) • Programs to train women and minorities are favored, increased recruiting of women and minorities • 29 CFR 1608.3 • 29 CFR 1608.4 (AAP must have reasonable self analysis (employment practices in fact have an adverse impact on minorities and women, reasonable basis, and reasonable action (action is narrowly tailored to solve the problem) Employment Law

24. Trends in AAP • Frank v. Xerox (5th Cir.) – black plaintiffs unhappy because Xerox’s affirmative action goals of proportional representation harmed them (they were ‘overrepresented’) – court held the plan (which had racial goals) direct evidence of discrimination Employment Law

25. Cost/Benefit of AAP • +Employer can promote workforce diversity plan • +can address problem before lawsuits come • --can open to reverse discrimination suit • --Can be challenged under Equal Protection Clause • --requires extensive advice of counsel before instituting, and during the life of the Plan Employment Law