How to prevent
national origin discrimination?
By Claudia Garcez, Consultora de RH
America is a nation of immigrants. The cultural diversity of America is what makes this country so unique. Recognized worldwide as being the land of opportunities, the United States continues to attract many people from all over the globe. Immigrants come to the United States searching for the American dream. People believe that America is the place that allows them freedom and opportunity for all. In order to prevent discrimination against legal immigrants, the government of the United States created some specific laws. The purpose of this paper is to define laws protecting against national origin discrimination, explain actual court cases, and educate Human Resources managers on how to avoid national origin discrimination.
The Immigration Reform and Control Act anti-discrimination provision prohibits employers from knowingly hiring undocumented workers and requires employers to verify their employees' identity and work eligibility as specified on the I-9 form. It also prohibits job discrimination based on immigration status. This anti-discrimination provision is intended to ensure that all employees and job applicants are treated equally, whether they are U.S. citizens or not. In order to enforce the IRCA, The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigates and prosecutes employers charged with national origin and citizenship status discrimination with respect to hiring, firing and recruitment or referral for a fee, unfair documentary practices concerning the hiring process (document abuse), and retaliation. The OSC only applies to employers with between 4 and 14 employees (IRCA).
Small employers that discriminate based on National origin and citizenship status can be severely penalized. For a first time employer discrimination offense against each victim, the penalty ranges between $275 and $2,200. For a second time offense, the penalties vary between $2,200 to 5,500. The numbers can go as high as $3,300 to $11,000 for each third time offense. Victims of unlawful discrimination may receive back pay (for lost wages), instatement or reinstatement or other appropriate recourse. Victims have within 180 days from the alleged discrimination to file a discrimination charge (IRCA).
law protecting against National origin discrimination
is Executive Order 11246. The Executive Order prohibits federal
contractors and federally-assisted construction contractors and subcontractors
that do over $10,000 in Government business in one year from discriminating
in employment decisions on the basis of race, color, religion, sex,
or national origin. It requires affirmative action to ensure equal
employment opportunity for all. The Department of Labor's Office of
Federal Contract Compliance Programs (OFCCP) is in charge of enforcing
Executive Order 11246 and is part of the U.S. Department of Labor's
Employment Standards Administration. As law enforcement, OFCCP ensures
that private employers doing business with the federal government comply
with laws and regulations requiring non-discrimination. Victims of discrimination
can file a charge within 180 days from the date of the alleged discrimination,
unless the time for filling is extended for good cause presented (EO
Probably, the most encompassing antidiscrimination law and the law that is used by most claimants is Title VII of the Civil Rights Act of 1964. Title VII provides that it is unlawful for an employer:
(1) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate
against any individual with respect to his
compensation, terms, conditions, or privileges
of employment, because of such individual's
race, color, religion, sex, or national
(2) to limit, segregate, or classify his
employees or applicants for employment in any
way which would deprive or tend to deprive any
individual of employment opportunities or
otherwise adversely affect his status as an
employee, because of such individual's race,
sex, or national origin.
Title VII only applies to employers with at least 15 employees. As a way to attempt to prevent discrimination, the Equal Employment Opportunity Commission (EEOC) is in charge of the administration, interpretation and enforcement of Title VII (EEOC). Due to the many laws and areas which discrimination can be based on, this paper will limit its focus on national origin under Title VII (EEOC).
The EEOC defines national origin discrimination as treating someone less favorably because he or she comes from a particular place, because of his or her ethnicity or accent, or because it is believed that he or she has a particular ethnic background. It also means treating someone less favorably at work because of marriage or other association with someone of a particular nationality (EEOC).
National origin discrimination under Title VII involves many aspects of employment including hiring, promoting, harassing, discharging and general employment policies. The judicial system is responsible for interpreting employers actions and deciding whether those actions violate Title VII. An example of how the employers' actions in the hiring process can be considered discriminatory is illustrated in Raad v. Fairbanks North Star Borough School District, 323 F. 3d. 1185 (2002). In Raad, a part- time teacher of Lebanese descent, sued the school district for failing to hire her for a full-time position because of her accent. Nada Raad was born and raised in Beirut, Lebanon. She obtained her undergraduate and graduate degrees from the University of Illinois Urbana-Champaign with excellent and outstanding faculty recommendations. Raad then obtained her certification to teach in Alaska public schools.
Raad applied for full-time position for three consecutive years beginning in 1991. In her first interview, Raad was awarded the highest possible rating by the team of principals. However, there was a special note in her evaluation: "Raad's accent and soft spokenness may be a detractor to some instructional effectiveness." The school discrict decided not to hire Raad mainly because of her accent even though there was no evidence that her accent ever interfered with her performance to teach math and science. On the contrary, Raad consistently received compliments about her classroom performance such as "an excellent rapport with her students."
During the 1991-92 school year, Raad received numerous requests from full-time District teachers to serve as a full-time substitute teacher in their classes during their absence. When Raad requested a full-time position, the District staff told Raad that she had not been placed in the hiring pool for the 1992-3 school year because her recommendation had not been submited on the proper form. Later in a deposition, it was confirmed that the real reason for not hiring Raad was her accent. In her third attempt to obtain a full-time Biology teaching position, Raad again was rejected for the position despite the evidence that she was highly qualified for the job. The District Court of Alaska granted summary judment in favor of the defendant as to Raad's claim for national origin discrimination. However, the 9th Circuit of Appeals reversed the ruling and held that Raad had a genuine issue of material fact which precluded summary judgment. The Court stated that Raad could prove her discrimination claims indirectly by showing that the employer's explanation of failing to hire her was "unworthy of credence" because it was internally inconsistent or otherwise not believable. Additonally, the Court noted that there was evidence that the EEOC officer informed Raad that she had been denied the position because of her accent. Therefore, the Court of Appeals held that the close relationship between language and national origin is classified as discrimination based on linguistic characteristics and was unlawful under Title VII.
Discrimination based on nation origin can also take place when an employee is applying for a promotion. An excellent example of discriminatory employment practice in the promotion process is seen in Cuello-Suarez v. Puerto Rico Electric Power Authority, 988 F. 2d. 275 (1993). Candelaria Culello-Suarez, a seventeen-year veteran employee of PREPA, held positions as a clerk and typist. She had a B.A. degree in business administration and she also obtained her license as a Certified Public Accountant. She took at least 10 different tests required for promotions and always recieved above average evaluations in her performance reviews. Culello-Suarez applied 77 times for promotion to supervisory positions. She was qualified for at least 69 of the positions she applied for.
The employer's regulations for promotion to managerial positions stated: "The interested supervisor selects the one that he/she considers to be the best candidate in accordance to the effective norms and in accordance to the following priority order: (a) Regular and temporary managerial employees with one or more years of service with the authority; (b) Non-regular employees; (c) Candidates from the registry of eligibles." Here the plaintiff was in category (a).
The District Court ultimately found that the employer's actions resulted in a pattern of intentional discrimination on the basis of the plaintiff's nationality. The First Circuit of Appeals agreed with the District Court's ruling. The Court's holding was based on the fact that plaintiff had applied for 77 positions, had always received above average evaluations and that in 17 years she had not received any reprimands. Also, the Court noted that the employer often promoted less qualified employees, and it was silent or provided fanciful explanations for their failure to select plaintiff for any of the 77 positions.
Harassment due to an employee's national origin was also the basis of a claim for discrimination. An example of a harassment case is seen in Hawana v. City of New York, 230 F. Supp. 2d 518 (2002). In 1986, Hawana, an Egyptian man, was hired as a caseworker by a predecessor agency to the New York City Administration for Children's Services (ACS). Hawana sued the city and alleged he was subjected to a "hostile work environment." Hawana, the plaintiff, listed 11 dates on which the discriminatory acts occurred, although he didn't specify what happened on each of those dates. In addition, his supervisor had stated that plaintiff came from a "third-world" country. Between 1996-99, plaintiff filed repeated requests to be transferred out of his Manhattan ACS office but the transfers were always denied.
In 1997, Hawana filed a discrimination charge with the New York City Commission on Human Rights (CCHR) in which he alleged he was dicriminated against because he was Egyptian. The CCHR dismissed plaintiff's complaint and plaintiff was terminated in 2002. In 2002, the EEOC issued Hawana a right-to-sue letter. An arbitration was held and plaintiff's union lawyer was present. The arbitrator found that there was no evidence to prove hostile work environment. Hawana appealed and the Court agreed with the arbitrator and made a decision favoring defendant. Summary judgment was granted for the defendant. Based on this case, one can conclude that it's difficult for a plaintiff to prove that national origin discrimination creates a "hostile work environmnet." Unlike other claims under Title VII, there needs to be more than one act of dicrimination to rise to the levels of working in a "hostile work environment."
One of the largest areas of claimed employer discrimination occurs in the discharge process. An example of discriminatory practice in the discharge process is seen in Rocco v. American Longwall Corporation, 965 F. Supp. 709 (1997). In this case, plaintiff was an American citizen who was layed off by his former British employer. Rocco was hired in 1986 by a British corporation which had world-wide operations. He was hired as district sales manager for the Meco-Owens in the Bristol-Virginia division for the northern district of the United States. In 1992, plaintiff was told that the material handling division was disbanded and that he would not be able to sell belts anymore. Plaintiff alleged that other British employees who performed similar duties and/or were less qualified than he was were treated more favorably. Rocco also presented that those British employees had poor performance based on the company's records. Rocco showed statistics which indicated that a disproportionate share of Americans were laid off as compared to British employees. In denying the employers motion for summary judgment, the Court ruled that it would not be unreasonable for a jury to conclude that the employer used the sale of the material handling division as a way to let go unwanted American workers.
In addition to national orgin discrimination being claimed by an individual employee, it sometimes can be claimed by a group of employees on the basis that the employer has a discriminatory general policy. An example of how a company.s general policy was discriminatory is well-illustrated in Equal Employment Opportunity Commission v. Premier Operator Services, Inc, 113 F. Supp. 2d 1066 (2000). Here, the EEOC brought a class action on behalf of 13 former Hispanic employees against their employer which operated related telecommunications companies, alleging that the "English-only" workplace policy violated Title VII. The employer/defedant hired the employees based on their ability to speak Spanish. The employer's business was to service Spanish-speaking customers in connecting long distance telephone calls. However, defendant created a "Speak-English-Only" policy prohibiting the speaking of Spanish on the company premisses. The policy was posted at the entrance of the company's building as follows:
Absolutately No Guns, Knives or Weapons of any any kind are allowed on these premises at any time! English is the official language of Premier Operator Sercives, Inc. All conversations on these premises are to be in English. Other languages may be spoken to customers who cannot speak English.
This policy prohibited the speaking of Spanish at all times, including lunch breaks. The discrimination was such that defendant planned to install a public telephone outside the building so that Hispanic speakers would have to go outside to make personal phone calls during which they might speak Spanish. The policy was not job-related or consistent with any business necessity for the defendant. Plaintiffs alleged that English-Only policy was implemented and enforced by the defendant as a tool for national origin discrimination. The Court held that employer's blanket policy of requiring that English be spoken exclusively, except when communicating with non-English speaking customer, was disparate treatment discrimination based upon nation origin, in violation of Title VII. Plaintiff, on behalf of 13 terminated employees, was entitled to a judgment of $50,000 in compensatory and punitive damages as to each person. This amount was to be allocated and assigned by the Court to each component of the damages, as appropriate, for a total of $650,000.
After defining the laws prohiting national origin discrimination and the possible consequences for violation of Title VII, this paper now will focus on how HR managers can prevent national origin discrimination. There are a number of measures that a HR manager can take in order to prevent national origin discrimination. First, HR managers should use best practices decisions when recruiting, hiring, promoting, firing or layoffs. Concerning recruitining and hiring, it's considered national origin discrimination to recruit individuals who belong to certain national origin groups and excluding members of other national origin groups. It's also considered unfair practices to recruit individuals by word-of-mouth. This practice has the effect of discriminating against particular national origin groups, such as Arab or South Asian applicants. Also, such a recruitment method is less likely to reach a diverse pool of job seekers and may tend to reinforce the make-up of the existing work force to the exclusion of other qualified individuals (EEOC comp).
The best way for HR managers to reach qualified applicants is by using a variety of recruitment and hiring techniques. These techniques include job fairs and open houses, professional associations, search firms, internships and scholar programs. Such approaches are more likely to result in a diverse pool of job seekers. Other tools for recruiting include specialized publications or websites, including those directed to particular communities (EEOC comp).
As for promoting or transferring an employee, HR managers should not base such decisions on national origin. Instead, theses decisions should be based on the qualifications of the applicant. Title VII protects people from national origin discrimination in all aspects of employment, including in recruitment, hiring, promotion, transfer, wages and benefits, work assignments, leave, training, discipline, layoff, and discharge. HR managers should not tranfer an individual based on customer or coworker preferences or perceptions about an individual's ancestry or ethnicity. Such decisions are unlawful and based on discriminatory preferences. The failure to comply with Title VII can result in employee claims and consequently litigation. In 2004, the EEOC alone received 8,361 charges of national origin discrimination. This cost employers over $22.3 million (EEOC statistics).
Concerning discipline, demotion, and discharge, HR managers should base their decisions on either employee misconduct or unsatisfactory work performance. When HR managers decide to discharge or "lay off" employees, they should make sure they are doing so for clearly nondiscriminatory reasons like nationality. Examples of non-discriminatory reasons are seniority, quality of work or quantity of work (EEOC comp).
Second, HR managers are required to take appropriate steps to prevent and correct unlwaful national origin harassment. According to EEOC, National origin harassment occurs when it is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive. Examples of national origin harassment include ethnic slurs, workplace graffiti, or other offensive conduct directed towards an individual's birthplace, ethnicity, culture, or foreign accent. Such a hostile environment may be created by the actions of supervisors, coworkers, or even nonemployees, such as customers or business partners. The EEOC specifically defines some relevant factors to consider when evaluating whether national origin harassment has been commited. Those factors include the following: whether the conduct was physically threatening or intimidating; how frequently the conduct was repeated; whether the conduct was hostile and/or patently offensive; the context in which the harassment occurred; and whether management responded appropriately when it learned of the harassment (EEOC comp).
In order to treat employees fairly, HR managers should take preventative steps as well as correct national origin harassment. Probably, the most important step to prevent national origin harassment is effective communication. Employees should be made aware that harassment based on national origin will not be tolerated and that employees who violate the prohibition against harassment will be disciplined. Those actions should be based on the company's policies. HR managers should also effectively address complaints in order to solve future occurences. In addition, HR managers should train managers on how to identify and respond effectively to harassment (EEOC comp).
Third, HR managers should not make decisions based on an employee's foreign launguage, unless the foreign launguage clearly interfers with job perfomance. Examples of language discrimination include accent discrimination, English fluency, and English only-rules. Employers need to know that English fluency is required only for teaching, customer service and telemarketing service positions. Even for these positions, HR managers must determine whether the particular individual's accent interferes with the ability to perform job duties. An English-only rule may be used if it is needed to promote the safe or efficient operation of the employer's business. This assessment depends upon the specific duties of the position in question and the extent to which the individual's accent affects his or her ability to perform job duties (EEOC comp).
When evaluating whether to apply an English only-rule, HR managers need to make sure that this is required for the efficiency of the business. In order to decide whether this is the best way to go, HR managers should consider many factors. First, there must be clear evidence that there are safety justifications for the "English only-rule."An example is in the case of emergency for which employees must speak a common language in order to promote safety. Second, that there is a business justification, such as communicating with supervisor or effectively communicating with customers. Third, it's when the English only-rule is needed for the effectiveness of the rule in carrying out its objectives. An example is where there are cooperative work assignments in which a common language is needed to promote efficiency. Finally, the English fluency of workers affected by the English only-rule. An employer's use of an English-only rule should relate to specific circumstances in the workplace. As long as HR managers can prove that adopting the rule is a "business necessity" then the company is protected from discrimination claims. However, HR managers should caution companies from implementing an English only rule unless it is absolutely necessary and it can be clearly defended (EEOC comp).
Finally, HR managers must treat ALL applicants and employees the same. The IRCA requires verification of the identity and employment eligibility of all potential employees, regardless of national origin including U.S. citizens. In order to do so, HR managers need to train their staff on how to use the I-9 form. The I-9 form has several combinations of legally acceptable documents listed on the back from which they can choose. HR managers should allow applicants or potential employees to present any document or combination of documents acceptable by law. The person in charge of checking the I-9 form requirements cannot prefer one document to others. Not all authorized aliens carry "green-cards." The IRCA states that as long as the documents are allowed by law and appear to be genuine on their face and to relate to the individual, they should be accepted. Applicants should not be asked whether they are eligible to work in the United States. In addition, the I-9 form must be retained for three years after the date of hire or one year after the date of employment (IRCA comp).
The failure to verify the identity and employment eligibility is punishable by fine. The OSC has received more than 6,000 charges of discrimination based on national origin or citizenship status since 1987. These charges have a tremendous negative impact on the company. This has cost almost $2 million in back pay and more than $1.3 million in civil penalties for violations of the anti-discrimination provisions. According to the OSC, immigrants from Latin America and Asia are most likely to be victims of job discrimination based on national origin and citizenship status. In addition, the OSC has had recent cases that include even long-time U.S. citizens (IRCA pen).
HR managers, to be effective, need to recognize that every person in the United States has ancestors which came from foreign lands. They need to be cognizant of the many laws which prohibit discrimination acts based on a person's national origin. It must be understood that national origin is broadly defined to include a person's ancestory or accent. A HR manager must be aware of how the Court's interpret the laws and what employer actions will not be tolerated. Finally, the HR manager has to effectively communicate with managers and supervisors on how to deal with employees appropriately and consistently. Only by avoiding national origin discrimination, can all people truly chase the American dream.
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