please discuss, based on the material given, your experience and your opinion on the following scenarios:
- 1) Chapter 4: Opening Scenario 3- Lominy
- 2) Chapter 7: Opening Scenario 2 – Oliverio
Express your views on each of the scenarios while using what you're learning in the chapters
Employment Law for Business
Chapter 7
National Origin Discrimination
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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 coverage of the Immigration Reform and Control Act.
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Statutory Bases
Statutory basis for protection against national origin discrimination is presented in Exhibit 7.1, “Legislation Prohibiting National Origin Discrimination.” These statutes include section 703(a) of Title VII of the Civil Rights Act of 1964 and 274A and B of the Immigration Reform and Control Act of 1986.
Additional direction can be found in the EEOC’s Enforcement Guidance on National Origin Discrimination.
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Introduction
United States: a melting pot, stew or salad bowl of different cultures?
National origin included in Title VII’s list of protected classes.
Seeks to ensure that employers do not make employment decisions based on employees’ or applicants’ country of origin.
Long tradition of bias against more recent immigrants. Every new immigrant group has had to shoulder its way into the mainstream of American life.
‘New Colossus’ text on Statue of Liberty is aspirational.
Recent claims trend overlaps with race, but distinct issues, case histories.
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The Changing Workforce
2017: 44.4 million immigrants in US (13.6%) population.
27.4% Asian,
25.3% Mexican,
25.1% other Latin America,
13.2 % European/Canadian,
17.4% of total US labor force.
Higher workforce participation rate for men; lower for women.
Substantial wage gap at lower education levels, attenuates at higher degree levels.
E E O C Complaint volume has risen in this century, peaking in 2011.
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Realities About National Origin Discrimination
Exhibit 7.2: Realities about National Origin Discrimination.
“Citizenship” and “national origin” are not synonymous.
No matter the national origin of a restaurant, it likely will still be required strictly to abide by Title VII nondiscrimination principles in hiring its waitstaff.
The EEOC considers English-only rules applied at all times presumptively discriminatory, although courts have not always agreed.
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Regulatory Overview, generally
National origin discrimination protection per Title VII:
Similar to other protected groups, including with regard to employment decisions, segregation or classification of workers that would deprive them of the privileges, benefits, or opportunities of employment.
‘National origin’ defined similarly to ethnicity.
Disparate Treatment and Disparate Impact claims.
Particular issues, for example, exclusive English Only rules may appear neutral, but impact ethnic groups differently.
‘English Only’ presumptively discriminatory per E E O C; some courts have disagreed, based on business justification of policy in context.
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Regulatory Overview: prima facie case
Employee’s prima facie case of national origin discrimination:
They are a member of a protected class.
Thewy were qualified for the position for which they applied or in which they were 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.
Note: each element described in following slides .
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Member of the Protected Class 1
‘National origin’ encompasses:
Employee’s place of birth.
Ethnic characteristics or origins.
EEOC Guidelines: “discrimination because an individual (or their ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”
Note 1: national origin discrimination can include discrimination by members of the same national origin group against each other.
Note 2: protection against discrimination based on country of origin, not on country of citizenship. Citizenship not a protected characteristic.
Case: EEOC v. MVM Inc.
Case: Espinosa v. Farah Manufacturing Co.
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Member of the Protected Class 2
‘National origin,’ following may also serve as national origin bases:
Is identified with or connected to a person of a specific national origin, such as when someone suffers discrimination because she or he is married to a person of a certain ethnic heritage.
Is a member of an organization that is identified with a national group.
Is a participant in a school or religious organization that is affiliated with a national origin group.
Has a surname that is generally associated with a national origin group.
Is perceived by an employer to be a member of a particular national origin group, whether or not the individual is in fact of that origin (mistake is no defense).
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Qualification/B F O Q’s
As always, Claimant must show that s/he meets the job’s requirements.
No employer ‘accommodation’ required.
B F O Q exception available but strictly construed (limited) by E E O C.
Customer, client, or coworker discomfort or preference in terms of national origin (for example, ethnic restaurant waitstaff) may not be relied upon by the employer.
National Origin and national citizenship are not same – citizenship not protected category.
Case: Espinoza v. Farah Mfg. Co. (citizenship).
Case: Cortezano v. Salin Bank (case based on ‘alienage’/undocumented status of claimant’s spouse).
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English Fluency as a qualification, and Language Restrictions 1
Fluency requirements, accent issues may go to qualifications; “English-only” policies have become increasingly relevant in the workplace.
Claims may be based on disparate treatment, disparate impact or harassment/hostile work environment.
No Supreme Court rulings – lower courts vary as to legitimacy.
Case: Garcia v. Spun Steak Co.
E E O C preference for policies tailored to needs of specific workplace.
Blanket fluency requirements applying to all jobs without business justification disfavored.
Worktime vs. break time distinction.
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English Fluency as a qualification, and Language Restrictions 2
E E O C on ‘business necessity’ of English-only:
For communication with customers co-workers or supervisors who only speak English
In emergencies or other situations in which workers must speak a common language to promote safety,
For cooperative work assignments for which the English-only rule is needed to promote efficiency, for example, a taxi company permitted to have such a rule to avoid dispatch confusion
To enable a supervisor who speaks only English to monitor the performance of an employee whose job duties require communication with co-workers or customers.
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English Fluency as a qualification, and Language Restrictions 3
Courts give deference to EEOC guidance but are not required to follow it. Courts have allowed restrictions that were based on sound business interests.
Workplace safety.
Supervisory control and efficiency.
Customer, co-worker relations.
Safe harbor: examine, stay within business justification as to breadth of application.
Note: recent state legislation: CA – English-only if business necessity, ‘narrowly tailored and limited to on-duty times’.
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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. Disparate Treatment or Disparate Impact of ‘neutral’ policies both qualify.
Prima Facie case triggers employer’s requirement to defend, based on Legitimate Non-Discriminatory Reason (LNDR) or a BFOQ.
Case: Vega v. Homestead Union School District.
Claimant rejoinder re pretext, as described in Chapter 2.
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National Origin-based Harassment
Claims have sharply increased since late 1990s.
Familiar prima facie case elements: unwelcome, based on national origin, so severe of pervasive as to change terms of employment, company involvement or toleration (‘knows or should have known’).
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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National Origin-based Harassment: EEOC Guidance Examples
Hostile Work Environment Based on National Origin That Violates Title VII
Muhammad, who is of Pakistani descent, works for Motors, a large automobile dealership. His coworkers regularly call him “camel jockey,” “the local terrorist,” and “the ayatollah” and intentionally embarrass him in front of customers by claiming that he is incompetent. The EEOC finds reasonable cause to believe that the constant ridicule has made it difficult for Muhammad to do his job and has created a hostile work environment in violation of Title VII.
Conduct That Does Not Create a Hostile Work Environment Based on National Origin
George, an immigrant of Haitian descent, was hired by Shipping Company as a dockworker. On his first day, George dropped a carton, prompting Bill, a coworker, to yell at him. The same day, George overheard Bill telling a coworker that foreigners are stealing jobs from Americans. Two months later, Bill confronted George after he argued with another coworker about assignments. Bill called George “lazy” and mocked his accent. Although Bill’s conduct was based on national origin, standing alone, these incidents were not sufficiently severe or pervasive to create a hostile work environment in violation of Title VII.
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Guidelines on Discrimination Because of Religion or National Origin
OFCCP Guidelines on Discrimination Because of Religion or National Origin: federal agencies or contractors have affirmative duty to prevent discrimination based on religion or national origin.
8 requirements, including internal communication, workforce analysis and enhanced recruitment efforts (page 361).
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
“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.
Key discrimination issues:
Different treatment because of religious attire for example, hiring discrimination by Abercrombie & Fitch re applicant’s hijab.
Ethnic harassment, which may unfairly relate to security concerns.
More stringent security checks or other pre-employment requirements.
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Latinx Discrimination: Impact of Socio-Political Environmental Factors
Increase in Latinx discrimination concern after harsh 2016 campaign rhetoric, rapid increase in hate-crime targeting and southern border mistreatment.
Widespread perception among this growing workforce segment of pressure to conform, repress heritage.
Multiple negative impacts transcend legalities, to lost sales, productivity and morale, recruitment opportunities.
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Citizenship, and the Immigration Reform Control Act 1
Non-US citizens are often restricted from access to certain government or other positions by statute.
“Political function” exception.
Case: Espinoza v. Farah Manufacturing Company.
Note: ‘citizenship’ must not be ‘pretext’ for national origin discrimination.
Immigration Reform and Control Act (IRCA, 1986).
Unlawful to knowingly hire, recruit, or refer aliens not authorized to work in the United States.
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Citizenship, and the Immigration Reform Control Act 2
Employers not subject to Title VII’s prohibitions because of small size (<15) may still be covered by IRCA’s anti-discrimination provisions.
Employers with 4 to 14 employees are prohibited from discriminating on the basis of national origin.
Language proficiency as built-in BFOQ.
Employers with 4 or more employees may not discriminate on the basis of citizenship.
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Undocumented Workers 1
Undocumented workers likely comprise 4 – 5% of U S workforce.
I R C A (enacted 1986) made it unlawful for employers to ‘knowingly’ hire, recruit, or refer for a fee to non-citizens who are not authorized to work in U S.
No ‘ostriches’: knowledge ‘may fairly be inferred from facts/circumstances’.
Employers required to ‘verify’ all newly hired employees using a Form I-9 (retention required, personal liability risk).
‘No-match’ issues – discrepancies between documents.
“No-match” workers – Workers who used false social security numbers.
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Undocumented Workers 2
DoJ advice to employers receiving SSA ‘no-match’ letters:
Check match information vs. personnel records to eliminate administrative errors – no automatic terminations.
Inform affected employees, seek numbers confirmation.
Advise employees to correct discrepancies with SSA.
Uniform rules for all employees; reasonable time to correct data.
Submit corrections to SSA.
Enforcement of I R C A:
Investigations via random I-9 form audits and compliance inspections by Immigration and Customs Enforcement (I C E).
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Undocumented Workers 3
EEOC position:
Workers’ undocumented status does not justify workplace discrimination under statutes it administers.
Employers' liability for monetary remedies promotes the goal of deterring unlawful discrimination.
Case: Hoffman Plastic Compounds Inc. v. NLRB.
No back-pay, reinstatement remedies to undocumented workers.
Fair Labor Standards Act (Dept. of Labor):
Protects undocumented workers from abuses not involving future pay.
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Alternate Basis for National Origin or Citizenship Discrimination: Section 1981
Law applies to identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.
Section 1981 – Relates to discrimination because of ethnic characteristics or race.
St. Francis College v. Al-Khazraji recognized notional origin coverage.
Later cases: Narrow interpretation, not extended to gender claims or Amish employees.
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Management Tips
While a specific national origin may be a BFOQ, make sure that only individuals of that origin can do the specific job since courts have a high standard for BFOQ’s in this area.
An employee may have a claim for national origin discrimination if the worker is simply perceived to be of a certain origin, even if the individual is not, in fact, of that origin.
While English fluency may be required, you are not allowed to discriminate because of an accent (unless the accent makes it impossible to understand the individual). However, be cautious in evaluating the requirement of the job since there may be positions that do not actually require speaking English.
An employer may not point to customer, client, or coworker preference, comfort, or discomfort as the source of BFOQ.
If you are a federal contractor, remember that you have additional responsibilities to engage in outreach and positive recruitment activities under the Guidelines on Discrimination Because of Religion or National Origin.
While you are not prohibited from discriminating on the basis of citizenship under Title VII, you may be prohibited from discriminating on this basis under IRCA. Before instituting a policy, consider the implications of both statutes.
Recognize the concerns of Middle Eastern employees in the post–September 11 era: Include the topic of ethnic diversity in any workplace diversity training. Intervene promptly in incidents of harassment. Remain sensitive and flexible. Refrain from mandatory transfers and other short-term solutions to harassment, intimidation, and discrimination.
Be prepared for an increasingly diverse workforce. As conflict and climate crises force people in Central and South America to migrate north, more Latinx and other migrants will join the American workforce. Managers will need to respond to the changing needs of their diversifying workforce.
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Chapter Summary 1
Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for employers to limit, segregate, or classify employees in any way that would deprive them of employment opportunities based on their national origin.
An employee or applicant must show the following to be successful in a claim of discrimination based on national origin:
The individual was a member of a protected class.
The individual was qualified for the position at issue.
The employer made an employment decision against the individual.
The position was filled by someone not in a protected class.
“National origin” refers to an individual’s or an individual’s ancestor’s place of origin or physical, cultural, or linguistic characteristics of an origin group.
An employer has a defense against a national origin discrimination claim if it can show that the national origin is a bona fide occupational qualification. However, in general, this is very difficult to do. An exception to the difficulty is the requirement of English fluency, if speaking English is a substantial portion of the individual’s job.
No accommodation of a worker’s national origin is required, as it would be in situations involving disability or religion.
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Chapter Summary 2
English-only rules applied at all times are presumptively discriminatory, according to the EEOC. If the employer is considering an English-only rule, it is recommended that the employer should,
Consider whether the rule is necessary.
Determine if the rule is a business necessity.
Consider if everybody is fluent in English.
Communicate the rule to employees.
Enforce the rule fairly.
An alternative basis for national origin or citizenship discrimination is 42 U.S.C. § 1981.
Guidelines on Discrimination Because of Religion or National Origin are federal guidelines that apply to federal contractors or agencies and impose on those employers an affirmative duty to prevent discrimination.
The Immigration Reform and Control Act, unlike Title VII, prohibits, in certain circumstances, discrimination on the basis of citizenship. The act does allow for discrimination in favor of U.S. citizens where applicants are equally qualified.
Two statutorily allowed BFOQ’s under IRCA are:
English-language skill requirements that are reasonably necessary.
Citizenship requirements specified by law, regulation, executive order, government contracts, or requirements established by the U.S. attorney general.
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End of Main Content
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Employment Law for Business
Chapter 4
Legal Construction of the Employment Environment
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Learning Objectives 1
Explain why employers should be concerned about ensuring protections for equal opportunity during recruitment, in particular.
Describe how the recruitment environment is regulated, by both statutes and common law.
Describe the employer’s opportunities during the information-gathering process to learn as much as possible about hiring the most effective workers.
Explain how the employer might be liable under the theory of negligent hiring.
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Learning Objectives 2
Identify the circumstances under which an employer may be responsible for an employee’s compelled self-publication, thus liable for defamation.
Explain the difference between testing for eligibility and testing for ineligibility and provide examples of each.
Identify the key benefits of performance appraisal structures, as well as their areas of potential pitfalls.
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Evolution of the Employment Relationship
Sourcing and managing the employee assets of a firm requires knowledge and care – to maximize their contributions and avoid mistakes that can be expensive or worse.
law generally gives leeway in making employment decisions, as ‘discrimination’ among possibilities is how the best candidates are chosen.
only a few limitations on that discretion are imposed for example, by outlawing choices made on particular ‘status factors’ that compromise bedrock values like equal employment opportunities.
Other exceptions, for example, to ‘at-will’ employment capture actions in which other policies override employer interests or are otherwise unfair to workers.
Chapter traces evolution of the employment relationship – from sourcing through hiring, evaluation and eventual termination – to identify duties and potential pitfalls where careless management raises the risk of negative consequences.
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Recruitment 1
First step in the evolution of the employment relationship.
Practices are particularly susceptible to discrimination c
