Chapter 7
National Origin
Discrimination
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reproduction or distribution without the prior written consent of
McGraw-Hill Education.
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 issues surrounding “Englishonly 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
 U.S. is a melting pot/salad bowl of different
cultures
 An employment decision based on either race or
national origin is illegal
 Statutes:
 Title VII, Civil Rights Act of 1964 Sec. 703(a)
 Immigration Reform and Control Act of 1986
 Secs. 274A(a), Sec. 274(B)(a)
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The Changing Workforce
 By 2018, the U.S. workforce will be:
 17.6 percent Hispanics
 12.1 percent African-Americans
 5.6 percent Asians
 The median weekly earnings of foreign-born fulltime workers was significantly less than for nonforeign-born workers
 Claims of national origin discrimination are the
fastest-growing category under Title VII
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Regulatory Overview
 National origin discrimination protection
offered by Title VII: It is unlawful for an
employer to limit, segregate, or classify
employees
 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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National Origin: Prima facie case
 Familiar Disparate Treatment and Disparate
Impact analyses apply
 ‘Member of the protected class:’ Significant
issue in these cases (next slide)
 Language fluency may be issue in
qualifications
 ‘English-only’ rules as facially neutral policy in
Disparate Impact cases
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Member of the Protected Class
 Based only on country of origin, not on country
of citizenship
 No protection based on status as aliens
 Case: Cortezano v. Salin Bank & Trust Company
 National origin encompasses:
 Employee’s place of birth
 Ethnic characteristics or origins
 Physical, linguistic, or cultural traits closely associated
with a national origin group
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Qualification/BFOQs
 As always, claimant must show that s/he meets
the job’s requirements
 BFOQs: employer may claim a specific national
origin is a legitimate job requirement
 Compare: Japanese subsidiary preference for
Japanese nationals based on unique requirements of
international trade, but
 Customer/co-worker preference is never a BFOQ
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English Fluency as a qualification, and
Language Restrictions (1)
 Language fluency and “English-only” policies
have become increasingly relevant in the
workplace
 May be based on Disparate Treatment or Disparate
Impact
 Employers should not permit arbitrarily imposed
language restrictions: consider alternatives
 EEOC position: narrow availability, based on
business justifications
 http://www.eeoc.gov/policy/docs/national-origin.html#VC
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English Fluency as a qualification, and
Language Restrictions (2)
 Courts have allowed restrictions where based on
sound business interests
 May relate to qualifications, legitimate nondiscriminatory purpose or business necessity
 Customer factors: “English-only on the sales floor,”
ability to be understood
 Scenario 1
 Fluency for supervisory control and/or safety
 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
 It 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
 Must be unwelcome, severe or pervasive, cause
differential job difficulty, employer link
 Common incidents include
 Ethnic slurs, workplace graffiti, other offenses based
on presumed employee traits
 Key consideration is effect on victim
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OFCCP Guidelines on Discrimination
Because of Religion or National Origin (1)
 Applies to federal agencies or employers who
supply goods or services to government entity
 Individuals must be hired and retained without
regard to their religion or national origin
 The guidelines require federal contractors to
prevent discrimination
 Citation: http://www.ecfr.gov/cgi-bin/textidx?c=ecfr&sid=3b71cb5b215c393fe910604d33c9fed1&rg
n=div5&view=text&node=41:1.2.3.1.8&idno=41
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OFCCP 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
 Native Americans
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Middle Eastern Discrimination After
September 11, 2001
 “Code Z” established by EEOC in 2002
http://www.eeoc.gov/eeoc/newsroom/release/archive/5-15-02.html
 Key discrimination issues
 Different treatment due to attire
 Ethnic harassment, particularly in relation to security
concerns
 More stringent security checks or other preemployment requirements
 Effective prevention – sensitivity to employee’s
concerns
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Citizenship and the Immigration Reform
Control Act
 Legal aliens are often restricted from access to
certain government or other positions by statute
 “Political function” exception
 Case: Espinoza v. Farah Manufacturing Company
 Immigration Reform and Control Act
 Unlawful to ‘knowlingly’ hire, recruit or refer aliens not
authorized to work in U.S.
 ‘Knowingly’ includes constructive knowledge (no
‘ostrich defense’)
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Citizenship and the Immigration Reform
Control Act: Discrimination Claims
 Provisions in both Title VII and IRCA
 Title VII – Familiar Disparate Treatment and Disparate
Impact analyses
 IRCA – requires that the adverse action be knowingly
and intentionally discriminatory
 Innocent or negligent discrimination is a
complete defense to a claim of discrimination
under IRCA
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Undocumented Workers (1)
 IRCA makes it unlawful for employers to hire,
recruit, or refer for a fee to unauthorized workers
 Employers are required to verify all newly hired
employees
 Form I-9
 “No-match” rule implemented in 2007: Bush
Administration focus on Employees
 Supplemental Final Rule in October 2008
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Undocumented Workers (2)
 Obama administration focus on Employers
 Rescinded “no-match” rule in 2009
 Focused on civil and criminal actions against
employers that knowingly hired undocumented
workers
 Immigration and Customs Enforcement (ICE)
 IRCA
 Employers subjected to random compliance
inspection under the General Administrative Plan
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Undocumented Workers (3)
 EEOC
 Workers’ undocumented status does not justify
workplace discrimination
 Employers may be liable for monetary remedies
 Hoffman Plastic Compounds Inc. v. NLRB
 Fair Labor Standards Act
 Protects unauthorized workers from abuse
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Alternate Basis for National Origin or
Citizenship Discrimination: Section 1981
 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
 St. Francis College v. Al-Khazraji
 Later cases: narrow interpretation
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Management Tips (1)
 Employees can file national origin discrimination
claims even if they have been simply perceived
to be of a particular origin
 Customer, client, or co-worker preference,
comfort, or discomfort cannot be stated as the
source of BFOQ.
 In case of BFOQs, ensure that only persons of that
origin are, in fact, selected
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Management Tips (2)
 Federal contractors must follow the Guidelines
on Discrimination Because of Religion or
National Origin
 Before instituting a policy, consider the
implications of both Title VII and IRCA
 Recognize the concerns of Middle Eastern
employees in the post-September 11 era
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