Jessica Neilson

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Employment Law

• Jessica Neilson

2
Chapter 11 National Origin Discrimination
3
Reminder How many employees are reqd for Title
VII to apply?

• 15

4
National origin discrimination EEOC Guidelines

• No discrimination on the basis of
• EEs place of origin (or her ancestors)
• 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 spouses 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

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

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

7
EEOC reports significant increase in charges
re workplace harassment and termination based on
EEs 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
•  

8
EEOCs 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.
  Ayubs 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.

9
EEOCs website re this topic

• http//www.eeoc.gov/facts/backlash-employee.html

10
Harvards Hate Crimes Report 2005

• http//www.pluralism.org/research/profiles/display
  .php?profile74090

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EEOCs 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

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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).

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Theories Available

• Disparate Treatment
• Disparate Impact
• Hostile Work Environment

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Recent Examples of EEOC cases

• http//www.eeoc.gov/origin/lit_examples.html

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)

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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?

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

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OSCs turf

• http//www.usdoj.gov/crt/osc/htm/Webtypes2005.htm
• Example of case http//www.usdoj.gov/opa/pr/1999/
  February/051cr.htm

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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.'"

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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."

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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
  employers "underutilization" of individuals from
  certain protected classes and include the steps
  that will be taken to improve their
  representation in the employers 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.

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Affirmative Action Plans in Employment, Contd

• 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

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Affirmative Action Plans, Contd

• In order for an AAP to be legal, it must.
• Not be a QUOTA or setaside
• Must correct effects of Employers 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)

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Trends in AAP

• Frank v. Xerox (5th Cir.) black plaintiffs
  unhappy because Xeroxs affirmative action goals
  of proportional representation harmed them (they
  were overrepresented) court held the plan
  (which had racial goals) direct evidence of
  discrimination

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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