National Origin Discrimination

Earlier this month, the US Equal Employment Opportunity Commission (EEOC) announced a proposal to update its guidance on employment discrimination based on national origin.   The proposal, which marks the EEOC’s first update to this particular guidance in 14 years, contains important information for employers and is available for public comment until July 5, 2016.

What’s National Origin?

Federal regulations define national origin discrimination as including employment discrimination that occurs “because of an individual’s, or his or her ancestor’s place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.”  29 C.F.R. § 1606.1.

The regulations note that the EEOC defines national origin discrimination broadly, and that the EEOC will pay particular attention to charges alleging discrimination based on national origin considerations,  including:

  • marriage to or association with persons of a national origin group
  • membership in, or association with, an organization identified with or seeking to promote the interests of national origin groups
  • attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group, and
  • the individual’s name or spouse’s name being associated with a national origin group.

So What Does This Mean for the Workplace?

At the outset, it’s important to remember that EEOC guidance is not necessarily binding on courts.  In addition,  since this guidance has not yet been finalized, revisions remain a possibility.  That said, the proposed guidance provides an illuminating look into how the EEOC approaches enforcement on this issue.

Some noteworthy issues raised in the proposed guidance include:

  • Accents.  Employers tread in dangerous waters if they use accents as a basis for making an adverse employment decision, as accents and national origin are often linked.  While employment decisions may legitimately be based on accents, the EEOC proposed guidance states that this will require the employer to show that “effective spoken communication in English is required to perform job duties and the individual’s accent materially interferes with his/her ability to communicate in spoken English.”
  • Word-of-Mouth Recruiting.  Word-of-mouth recruiting may violate Title VII if the employer’s actions have the purpose or effect of discriminating on the basis of national origin.
  • Social Security Number (SSN) Screening.  Employers who have a policy or practice of screening out job candidates or new hires who do not have a social security number may constitute national origin discrimination, if work-authorized but newly arrived immigrants and new lawful permanent residents of a particular ethnicity or national origin are disproportionately affected.
  • Customer Preference.  Employers aren’t permitted to use the preferences of customers, coworkers, or clients as the basis for discriminating in violation of Title VII.  The EEOC notes that company “look” or “image” policies, under certain circumstances, can act as a proxy for discriminatory customer preferences; adverse employment actions taken according to such policies can serve as the basis of national origin discrimination.
  • Job Segregation.  An employer may not use national origin as the basis for assigning (or not assigning) individuals to specific positions, locations, or geographic areas; nor may an employer physically isolate, deny promotions to, or otherwise segregate individuals into certain roles due to their national origin.
  • Perceived National Origin.  It’s important to note that employer actions may not have the purpose or effect of discriminating on the basis of national origin whether that is an individual’s real or perceived national origin.
  • English-Only Rules.  Work rules or practices requiring the use of English may be national origin discrimination as a person’s primary language is often intertwined with cultural/ethnic identity.  The EEOC operates under the presumption that rules requiring workers to speak English at all times (including during lunch, breaks, and other personal time while on employer premises) violate Title VII.

These items are just a sampling of the information contained in the EEOC’s proposed guidance update.  The full document is available here.

 

 

Today’s post comes to us courtesy of Martin Burns, an associate in the Roseland office:

According to a recently filed lawsuit, Hajra v Wawa, by a former employee of Wawa, Inc., his manager singled him out and enforced an English-only policy because he spoke with an accent.  The former employee claims that the manager required that he only “speak English” while on the job because no one understood what he was saying.  A native of Kosovo, he alleges that the manager repeatedly instructed that he speak English despite only speaking that language while at work.  From the claims in the lawsuit, it does not appear that Wawa has formally implemented an English-only workplace policy or that the manager gave similar instructions to other employees.

26190870_sPutting aside the allegations that the manager singled out the employee and purportedly treated him differently because of certain characteristics associated with his national origin, could Wawa, or any other employer, require that its employees only speak English in the workplace?

The answer to that question depends upon the circumstances in question.  The United States does not recognize an official language.  Many states have existing official language laws.  Although New Jersey does not have any such law, there is a bill in committee in the New Jersey State Senate that if adopted and signed into law would designate English as the state’s official language.  Despite a lack of consensus on this issue by our federal and state political bodies, English-only work rules are not unheard of and can be legal at times.

It is clear that an English-only rule adopted by an employer must be implemented for nondiscriminatory reasons.  Furthermore, prohibiting certain foreign languages and not all such languages is unlawful.  The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance indicating that any such rules should relate to specific circumstances and can be justified by business necessity, such as in case of emergencies, promoting efficiency or to monitor the performance of employees whose job duties require communication where a supervisor only speaks English.  Even if the employer does not have a discriminatory intent or motive, however, federal law has been interpreted as prohibiting both intentional and unintentional discrimination against persons in protected classes.  According to the EEOC, employers therefore need to weigh business justifications against the possible discriminatory effects of the rule and should consider alternatives to an English-only rule that would be equally effective in promoting safety or efficiency.

 

The EEOC has announced that it has sued a West Virginia mining company for national origin discrimination.  The company allegedly knew that its supervisory and non-supervisory personnel were regularly subjecting an employee of Polish ancestry to “degrading and humiliating comments, taunts and slurs.”

Title VII, of course, protects employees from national origin discrimination and harassment.

“The harassment included calling Jagodzinski a ‘stupid Polack, a ‘dumb Polack, and other offensive names, displaying offensive graffiti about Jagodzinski on mine walls and elsewhere in the workplace, and taunting Jagodzinski with derogatory remarks about his national origin.”

The employee was fired when he complained.

discrimination people : black goldfish surrounded by a bully gang isolated on white Stock Photo

An EEOC attorney said that “No employee should be subjected to degrading and humiliating harassment in order to earn a living.”

A North Carolina AutoZone store was just sued by the EEOC for national origin discrimination and harassment.

According to the EEOC, the Hispanic employee was forced to resign, after months of being subjected by the store manager and two co-workers to “unwelcome derogatory slurs, comments and jokes,” such as being called a “sp-c,” “beaner,” “border hopper” and “island n—-r.”

shocked man : shocked man over white

An EEOC attorney stated:  “The EEOC alleges that Mr. Rodriguez suffered outrageous episodes of harassment that no employee should be forced to endure.  The EEOC is committed to the elimination of such illegal misconduct in the workplace and this lawsuit reaffirms the EEOC’s commitment to the eradication of harassment based on national origin.”

We have seen racial slurs in cases before, some which were severe enough to impel courts to hold that even a single usage consituted a hostile work environment.   This may be one of them — although the slurs, as alleged, were seemingly both severe and pervasive enough that both alternative elements of the “hostile work environment test may be satisfied.

 

 

Incidents of harassment against Muslim and Arab employees have been on the rise, with virulent and racist epithets and slurs at the core.

On October 2, 2013 we reported on a national origin and religious discrimination case filing by the EEOC against a car dealership in Illinois,  alleging a hostile work environment created against Muslim and Arab sales staff who were subjected offensive comments such as “terrorist,” “sand n—-r,” and “Hezbollah,” and insulting references to their prayer bahavior and the Qur’an.”

28368951_sThe company has now agreed to pay $100,000 to settle the case.

The EEOC’s Chicago District Regional Attorney said that “Such hostile conduct is both the worst type of negative stereotyping on the basis of national origin and religion and exactly what Title VII was designed to remedy.   Protecting all employees – whether Arab or Muslim or any other national origin or religion – from such harassment is at the heart of our statutory mission.”

We have noted other cases of offensive, ethnic slurs against Muslims.  On February 12, 2013, we posted about a case out of Texas of a 51-year-old Muslim-American of Palestinian ethnic origin, who claimed that three to four times per week his boss called him “towelhead,” “raghead,” “rock thrower,” “sand nigger,” “terrorist,” “fucking Palestinian,” “shithead” or “fucking Muslim.”   He complained to his finance director and was fired, and then sued alleging, among other things, a hostile work environment based on religion and national origin.

The company argued, among other things, that these comments were not of a frequent and continuous nature, and so the alleged harassment was not severe or pervasive enough to affect a term, condition, or privilege of his employment.

The Court, however, denied the company’s summary judgment motion, and found that the ethnic and religious comments were severe and frequent, and that the employee presented testimony that because of it the work place felt “like a ‘war zone.’”

Takeaway:   Severe racial harassment, or harassment based upon national origin or religion, is not going to be tolerated by the EEOC.

 

I just read a fascinating article by Derek Mong in Asian Fortune, which calls itself “an English language newspaper for Asian American professionals in the Washington, DC metropolitan area.”

The takeaway: “If you’re a minority in America’s workplaces, a name can mean the difference between the opportunity for success and rejection.”   What does this mean?

12863517_sCiting a series of studies, the article notes that a person’s name can sink her or advance her when applying for employment. An older University of Chicago study was aptly titled (and asked the question) “Are Emily and Brendan More Employable than Lakisha and Jamal?” The answer:  very much so.   Seems that names are a proxy for race or ethnicity when it comes to being called for a job interview, with “[identical] resumes with white names result[ing] in roughly 50% more callbacks than those with African-American names.”

As the article suggests, “What’s even more intriguing is that higher quality resumes labeled with white names elicited roughly 30% more callbacks than the average resume labeled with a white name, yet high quality resumes labeled with African American names saw no similar increase in callback rate—suggesting that something deeper, and perhaps more sinister, than candidate credentials was at play.”

A similar study at Wharton found that professors who received emails from “students” asking to meet found that “Individuals with stereotypical white male names (i.e. Brad Anderson) were 25% more likely to receive a response over both women and minorities. Faculty at private, more prestigious universities were more likely to discriminate, and racial bias was more pervasive against Asian students.”

The article fears that although “forms of overt racism that were once the norm have evolved into more covert, subjugated expressions,” the use of social media to research job applicants will result in its being turned into a “weapon of workplace discrimination.”   That is, a prospective employer can determine from an applicant’s social media profile a heckuva lot more about the applicant’s race, national origin and other protected characteristics than by seeing a simple name.

Employers must be aware that although social media can, in fact, become a “weapon of workplace discrimination,” it can also imperil employers who use it to screen applicants — and the EEOC is on top of this.   Here is a link to a good article on the perils of social media, which is a hot topic these days.

The EEOC just announced the commencement of a new national origin lawsuit against a Green Bay manufacturer for allegedly firing Hmong and Hispanic employees “based on 10-minute observations that marked them down for their English skills, even though those skills were not needed to perform their jobs.  All of those fired had received satisfactory ratings on their annual performance evaluations. …”

Title VII protects employees from discrimination based on national origin, as we know, and the EEOC says that this includes the linguistic characteristics of a national origin group.   “English only” as a rule or policy would fall within this Title VII prescription if not job-related, although we do not often see cases like this filed.

The EEOC, however, said that such a lingusitic rule often masks national origin discrimination:

“Our experience at the EEOC has been that so-called ‘English only’ rules and requirements of English fluency are often employed to make what is really discrimination appear acceptable. But superficial appearances are not fooling anyone. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin — and thus violates federal law.”

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Here is what failure to make out a prima facie case looks like in its starkest terms

A Muslim software architect in Washington State sued his former staffing company employer in federal court under Title VII based upon religious (and national origin) discrimination.  His contention?   That when he was sent on a business trip the employer deliberately booked him a hotel room with the number “911” just to humiliate him as a Muslim by reminding him of 9/11.

The court ruled against plaintiff, who appeared pro se, since he presented no evidence in support of his claim but just “conjecture.”  In fact, the hotel reservation e-mail receipt did not indicate that anyone at his employer requested room 911.

His other claims were similarly dismissed.

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10028116_sThree Bengali-speaking Muslim restaurant kitchen employees in Toronto who were mocked and reprimanded for speaking Bengali, subjected to comments about “cleaning Bengali sh-t from the kitchen,” forced to eat pork in violation of their religious beliefs and to break their Ramadan fast, and then fired, have been found by the Human Rights Tribunal of Ontario to have been harassed in violation of the Ontario’s Human Rights Code.

In an 80-page decision, the Tribunal held that all three were discriminated against based upon their creed, color, ancestry, place of origin and ethnic origin.

An attorney for the employees who is with the Human Rights Legal Support Centre said that  “The toxic environment took a toll on the health of all three men. They came forward to assert their rights while in crisis, and that is a very brave thing to do.”

 

For quite awhile we have reported about the EEOC’s targets as set forth in its Strategic Enforcement Plan (“SEP), and noted that “vulnerable worker” abuse and religious discrimination were in the cross-hairs.  Two new settlements emphasize this.

18936794_sThe EEOC has reported that it has settled a religious discrimination case for $100,000 filed against an Albuquerque hotel on behalf of a Muslim housekeeper who was fired when she refused to remove her religious head scarf.   An EEOC attorney said that “Religious discrimination continues to be a high priority for the EEOC, and we take this issue very seriously.”

We know (see some recent posts of ours).

“Employers should be aware that they have a duty to provide reasonable accommodation to employees’ religious beliefs and practices,” said another EEOC attorney.

Got it.

In a second case, the EEOC announced that Del Monte will pay $1.2 million to settle a 2011 suit against six farms and a California-based labor contractor who were alleged to have subjected 150 Thai farm workers to uninhabitable housing, insufficient food, low wages and deportation threats.

The EEOC took pains to note that not only was it targeting agricultural employers, but also “labor contractors,” who provide migrant farm labor to these farm employers: “This is sort of a chronic issue that we’ve seen where they try to hide behind labor contractors even though things happen on their land,”  said an EEOC lawyer.

In this regard, besides the monetary settlement, the company has agreed to “institute comprehensive protocols and accountability measures to ensure that all farm labor contractors that work with [it] comply with federal laws against discrimination and retaliation. This is the first effort of its kind for a farm to ensure farm labor contractor accountability for federal anti-discrimination laws.”

Moreover, in line with the EEOC’s express intention to protect vulnerable workers, the company has agreed to “partner” with the EEOC “to champion and ensure equal employment rights and opportunities by setting an example for the U.S. farming industry.”  Said the EEOC’s GC:  “We are hopeful that this resolution will provide a model for the agricultural industry to ensure that farm contractors comply with anti-discrimination laws.”

“We hope this is wake-up call for others in the agricultural industry to follow Del Monte Fresh Produce’s lead in recognizing signs of potential abuses by farm labor contractors and taking proactive steps to hold them accountable.”

Thus sayeth the EEOC.