8th ed Chap007 TFC 082014 Final in PPT 2010 narrated ppt 02012015

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Chapter 7 National Origin Discrimination:

Chapter 7 National Origin Discrimination McGraw-Hill/Irwin Copyright  2015 McGraw-Hill Education.  All rights reserved.  No reproduction or distribution without the prior written consent of McGraw-Hill Education.

Learning Objectives (1):

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 “English-only policies” in the workplace

Learning Objectives (2):

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

Introduction:

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)

The Changing Workforce:

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 full-time workers was significantly less than for non-foreign-born workers Claims of national origin discrimination are the fastest-growing category under Title VII

Regulatory Overview:

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

National Origin: Prima facie case:

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

Member of the Protected Class:

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

Qualification/BFOQs:

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

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

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

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

English Fluency as a qualification, and Language Restrictions (2) Courts have allowed restrictions where based on sound business interests May relate to qualifications, legitimate non-discriminatory 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

Adverse Employment Action and Dissimilar Treatment:

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

National Origin-based Harassment :

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

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

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/text-idx?c=ecfr&sid=3b71cb5b215c393fe910604d33c9fed1&rgn=div5&view=text&node=41:1.2.3.1.8&idno=41

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

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

Middle Eastern Discrimination After September 11, 2001:

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 pre-employment requirements Effective prevention – sensitivity to employee’s concerns

Citizenship and the Immigration Reform Control Act:

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’)

Citizenship and the Immigration Reform Control Act: Discrimination Claims:

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

Undocumented Workers (1):

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

Undocumented Workers (2):

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

Undocumented Workers (3):

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

Alternate Basis for National Origin or Citizenship Discrimination: Section 1981:

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

Management Tips (1):

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

Management Tips (2):

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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