National Origin Discrimination

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Chapter 7 National Origin Discrimination

Copyright 2019 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

 

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Learning Objectives (1)

Describe the impact and implications of the changing demographics on the American workforce

Define the prima facie case for national origin discrimination under Title VII

Explain the legal status surrounding “English-only policies” in the workplace

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Learning Objectives (2)

Describe a claim for harassment based on national origin and discuss how it might be different from one based on other protected classes

Identify the difference between citizenship and national origin

Explain the extent of protection under the Immigration Reform and Control Act

 

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Introduction

United States is considered a melting pot of different cultures

National origin was included in Title VII’s list of protected classes

Ensures that that employers did not make employment decisions based on employees’ or applicants’ country of origin

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Legislation Prohibiting National Origin Discrimination

Statutes

Title VII, Civil Rights Act of 1964

Sec. 703(a)

Immigration Reform and Control Act of 1986

Sec. 274A(a)

Sec. 274(B)(a)

 

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The Changing Workforce

In 2015, there were 26.3 million foreign-born workers in the U.S. workforce

16.7 percent of the total labor force

The median weekly earnings of foreign-born full-time workers were significantly less than for non-foreign-born workers

Complaints to the EEOC based on alleged national origin discrimination have been on the rise since 1997

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Regulatory Overview (1)

National origin discrimination protection offered by Title VII: It is unlawful for an employer to limit, segregate, or classify employees

Employer should not discriminate in any way on the basis of national origin that would deprive them of the privileges, benefits, or opportunities of employment

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Regulatory Overview (2)

Employee may successfully claim discrimination on the basis of national origin if it is shown that:

She or he is a member of a protected class

She or he was qualified for the position for which she or he applied or in which she or he was employed

Employer made an employment decision against this employee or applicant

Position was filled by someone who was not a member of the protected class

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Member of the Protected Class (1)

National origin encompasses:

Employee’s place of birth

Ethnic characteristics or origins

Physical, linguistic, or cultural traits closely associated with a national origin group

No protection based on status as aliens

Law provides protection against discrimination based only on country of origin, not on country of citizenship

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Qualification/BFOQs

Claimant must show that he or she meets the job’s requirements

Employer may claim that national origin is actually a bona fide occupational qualification for a job (BFOQ)

Case: Espinoza v. Farah Mfg. Co.

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English Fluency as a qualification, and Language Restrictions (1)

Fluency requirements, “English-only” policies, and accent rules have become increasingly relevant in the workplace

May be based on hostile work environment, disparate treatment, or disparate impact

Case: Pachero v. New York Presbyterian Hospital

EEOC has pointed out that the degree of fluency required varies from job to job

Blanket fluency requirements applying to all jobs might not be legal

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English Fluency as a qualification, and Language Restrictions (2)

Courts have allowed restrictions that were based on sound business interests

Closely examine employment decisions based on accent

Scenario 1

English fluency is required for supervisory control of the workplace

Case: Garcia v. Spun Steak

 

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Adverse Employment Action and Dissimilar Treatment

Adverse employment action: Any action or omission that takes away a benefit, opportunity, or privilege of employment from an employee

Includes:

Demotion

Termination

Removal of privileges afforded to other employees

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National Origin-based Harassment

Claims have been on a sharp increase

Familiar prima facie case elements

Claims are only actionable if the harassment was so severe or pervasive that the workplace was found to be hostile or abusive

Common incidents – Ethnic slurs, workplace graffiti, other offenses based on presumed employee traits

Key concern is whether a reasonable person would find the conduct offensive and/or hostile

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Guidelines on Discrimination Because of Religion or National Origin (1)

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

Applies to federal agencies or employers who enter into contracts with a government agency

Ensure that individuals are hired and retained without regard to their religion or national origin

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Guidelines on Discrimination Because of Religion or National Origin (2)

Provisions include the following ethnic groups:

Eastern, Middle, and Southern European ancestry, including Jews, Catholics, Greeks, and Slavs

Excluded because of coverage elsewhere

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

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Middle Eastern Discrimination After September 11, 2001 (1)

“Code Z” established by EEOC

Created to designate complaints of “backlash discrimination” from individuals who are perceived to be Muslim, Sikh, Arab, Middle Eastern, or South Asian

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Middle Eastern Discrimination After September 11, 2001 (2)

Key discrimination issues

Different treatment because of religious attire

Ethnic harassment, which may unfairly relate to security concerns

More stringent security checks or other pre-employment requirements

Effective prevention – Sensitivity to employees’ concerns about possible instances of ethnic harassment

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