class 9 - law of national origin discrimination/immigration in the workplace Flashcards
Language, Fluency and Accent Rules
Requiring that employees only speak English on the job or that they must be fluent or speak it without an accent can be a form of discrimination
The language an employee speaks and the accent an employee uses are often associated with the employee’s national origin, a protected trait under federal antidiscrimination laws
However, a business may have valid reasons to require the use of Enflish or fluency in it. Inc ertain jobs, an accent must not interfere with necessary communication
You’ll be acting legally if the English-only rule is intended to promote communication and ensure safety in case of an emergency
An english-only rule makes good sense if employees need to work together and some speak only english
It reasonable to require employees who deal with english-speaking customers to communicate in english
Avoid rules that forbid workers from speaking another language
Be careful if you’re considering a requirement that all employees must be fluent in English
If an accent impairs the person’s ability to communicate and be understood clearly, you’re probably on safe legal ground if the job requires clear communication skills
Citizenship
- The Immigration Reform and Control Act of 1986 which applies to businesses with hour or more employees makes it illegal to discriminate against workers who are not US citizens or nationals
- The law forbids you from discriminating against aliens who have been lawfully admitted to the US for permanent or temporary residence and aliens who have applied for temporary residence status
- You have to meet requirements to hire people who are legally authorized to work in the US but you can’t ask to see more or different documents from those required for completion of FOrm I-9
- Its illegal to refuse to honor documents offered by the employee as long as they appear to be genuine
Genetic Information
As an employer, you may come into possession of information about an applicant’s or employee’s genetic makeup
They might have a family history of disease but this does not mean they will develop the disease
The Genetic Information Nondiscrimination Act (GINA) prohibits employers from discriminating on the basis of this genetic information
GINA prohibits employers from requesting or acquiring genetic information from employees or applicants
If you learn something legally you are required to keep the information confidential
The law is intended to help ease concerns about discrimination that might keep people from getting genetic testing that could benefit their health
Many states also have laws that prohibit discrimination on the basis of genetic information
Don’t adopt English-only-workplace policy without clear business need
The U.S. Equal Employment Opportunity Commission is suing Albertsons in San Diego federal court over what the agency calls the grocer’s “unwritten English-only policy, which Albertsons implemented as essentially a no Spanish policy” at its Lake Murray Boulevard store. The EEOC charges Albertsons with violating the federal employment discrimination law, Title VII, which bars national origin discrimination
Unlike Title VII, California’s Fair Employment and Housing Act expressly prohibits employers from adopting or enforcing a policy that “limits or prohibits the use of any language” at work unless the policy is justified by business need and employees are notified when and how they must comply with it and the consequences for violating it.
Judge O’Neill found that the complaining employees could not show they were treated differently from a bilingual employee who also spoke Swedish or that they had been disciplined for speaking Spanish at work. The judge declined to decide whether the company’s policy violated California’s FEHA because questions of “when an employer is deemed to have adopted or enforced a policy that restricts or prohibits the use of a language in the workplace and when such a language is justified by a business necessity
An employer should adopt any English-only policy only narrowly and only with a solid business justification, such as directing it to those found to have used their fluency in a foreign language to abuse co-workers who do not speak it
(SKIT): The Case of Resort to Court
Context: It is June 21, 2004 at Trendwest Resorts, Inc., a company that sells credits in vacation timeshares. On stage alone and working at his desk is Mr. Tamer Mamou, a Project Director at the company’s Walnut Creek office. He is not a participant in the conference call that begins the scene, which takes place with the participants sitting at their desks in class. On the conference call are Don Harrill, president of Trendwest, Lauren DeSimon Johnson, vice president of human resources, in-house attorney John Dempsey, and Kevin Fiore, regional vice president for Northern California
Legal Question: Was Tamer terminated because of his national origin?
Initial Thought: No? Misconduct?
Final Thought: Yes.. Kevin’s racist..
Outcome: Court voted in favor of Tamer. More than a suggestion of discrimination. Court rejected Tamer’s dismissal because he only attempted to prepare for his new business.
Discussion:
Those articles of incorporation indicate that Tamer was starting a company called Worldmark Heaven, Inc. which would be engaged in the business of reselling timeshare credits.
Problem with his business is because tis a conflict of interest because he’s reselling timeshares he already sells with the main company.. They get the fees from the initial sale
He is an at-will employment
Serious misconduct disqualifies him from unemployment benefits
Concern: he is a naturalized citizen from syria and is a longtime employee who worked very hard/performed well but recently has been targeted by the regional director who called him racial slurs (?) and this person also developed a policy of turning away would be customers who were middle eastern and east indian and has problems with Middle Eastern employees
Timing of comments suggest he was terminated because of his national origin
Kevin says this is all lies
Says they should fire him cuz none of the comments are directed to Tamer and he is being fired for his misconduct
HR will now file on problems in Tamer’s performance over the last six months
Why not demotion or suspension? Why termination?
Wanted a reason too
Ted’s last comment…. Errrrr
HANDOUT 1
National Origin Discrimination
and
Discrimination Based on Accent
(1) National Origin Discrimination
Under guidelines adopted by the federal Equal Employment Opportunity Commission, “national origin” discrimination includes the birthplace of individuals or their ancestors, as well as the display of the phsyical, cultural, or linguistic characteristics of a particular national group.
[Sources: EEOC Guidelines, 29 U.S.C. §1606.1 – 1606.8; Espinoza v. Farah Mfg. Co., Inc. (1973) 414 U.S. 86, 88, holding that “national origin” and “ancestry” are synonymous.]
(2) Discrimination Based on Accent
Discrimination based on an individual’s accent is only permitted where the accent affects the individual’s ability to perform a job requiring communication skills. The same general rule applies to a requirement of english fluency.
[Sources: Smith and Mazi, The HR Answer Book, pp. 146-147; Fragrante v. City and County of Honolulu (9th Cir. 1989) 888 F.2d 591, 596.]
HANDOUT 2
English only rules
English-only Rules
The EEOC takes a very restrictive view toward English-only rules, declaring that such rules are a form of national origin discrimination and are allowed only if there is a business need for them.
Similarly, but more explicitly, California law allows an employer to adopt or enforce a policy that allows or prohibits the use of a language, that is to adopt or enforce an English-only policy, only where they are necessary to the safe and efficent operation of the business and no other practice will accomplish the business purpose equally as well with less dsicriminatory impact. California law also requires the employer to notify its employees of the circumstances and the time when the language restriction must be observed and of the consequences for violating the language restriction.
At least one federal court of appeals, however, has held that requiring billingual workers to speak only English is not unlawful discrimination. Such workers cannot show that an English-only policy has any adverse affect on them. The Court went out of its way to say the result may be different if the only workers whom the employer allows to converse on the job are those who speak English and not those who speak only another language.
[Sources: Text, p. 216; Cal. Gov’t Code §12951(b); Garcia v. Spun Steak Co. (9th Cir. 1993) 998 F.2d 1480, 1488.]
(SKIT): The Case of the Card Trick
Context: It is October of 1989. Ricardo Soto Gomez, a manager at a Phoenix area Sizzler restaurant, is working at his desk in the restaurant when his phone rings. Sonya delivers her lines from her seat in class
Legal Question: Is the Sizzler restaurant responsible for hiring someone who is not authorized to work in the US? Did Ricardo unlawfully hire Armando?
Initial Thought: Yes
Final Thought: Yes
Outcome: Mr. Soto did not know but should he know? He should have known. Job promised before examination. Without questioning or examining documents. They appealed and won. Court of appeals ruled in favor with Soto. (look online for final verdict)
Discussion:
Illegal to laminate your SSN
They had a manual
He negligently hired him
Falls on management to get rules right
He isn’t HR though
Liability issue for not being diligent
He was aware of the procedures.. Even if he didnt mean to intentionally hire someone illegal he still did it
ER might have reasons to hire someone who is unauthorized to work in the US
They can’t sue, you can pay them less etc.
Pages 47-48
Handout 3
Important Aspects of the I-9, Employment Eligibility Verification Form
The employer must have I-9 forms completed by all of those workers actually hired when he or she did work. The form may be completed earlier, as long as the person has been offered and has accepted the job. I-9 forms may not be used to screen job applicants. Doing so could expose the employer to a lawsuit for national origin discrimination.
- It is the responsibility of the employer to ensure that their employees complete Section 1 of the form.
- The I-9 form identifies three categories of acceptable documents that an employee may submit to establish identity and employment eligibility. Documents on List A establish both identity and employment eligibility, such as a U.S. passport or an alien registration card, commonly called a green card. If the employee does not submit a document from List A, he or she must submit one document from List B to establish identity and one document from List C to establish employment eligibility. Items from List B include a driver’s license or a voter registration card. Items from List C include a social security card or an original or certified birth certificate.
- An employer cannot insist on seeing more or different documents from those required to complete the I-9 Form as long as those submitted reasonably appearon their face to be genuine.
- The anti-discrimination part of the law which authorized the I-9 Form prohibits: (1) citizenship or immigration status discrimination; (2) national origin discrimination, also prohibited by Title VII; (3) unfair documentary practices during the form I-9 process, also known as document ask..; and (4) retaliation against an individual for making an immigration-related complaint or participating in an investigation of one. Document ask.. occurs when employers treat individuals differently on the basis of national origin or citizenship status in the I-9 process. Document abuse includes requesting more documents than the I-9 Form requires; rejecting documents that appear genuine; and treating groups of employees differently, such as requiring foreign appearing groups to produce specific documents. Document abuse exposes an employer to potential fines.
- The employer must complete section 2 of the I-9 form, requiring ask.. and ask.. of the documents submitted by the employee within 3 business days of the employee starting work, including deciding whether the employee’s documents appear valid.
- If an employee cannot present the required documents within three days of starting work, the employee must present an acceptable reciept instead of the required documents, such as one for a replacement document when the document has been lost, stolen, or damaged. The employee must produce the actual document within 90 days of starting work. An employee who fails to produce the required documentation may be terminated as long as the practice is applied uniformally to all employees.
- The I-9 form need not be completed for independent contractors . An employer may not knowingly use contract labor to circumvent the law against hiring unauthorized aliens.
- The employer must retain the I-9 Form for three years after the date the person begins work or 1 year after the person’s employment is terminated, whichever is later.
- An employer who fails to comply with the I-9 law is subject to civil fines and penalties. An employer who engages in a pattern or practices of knowingly hiring or continuing to employ unauthorized alien may face fines and imprisonment.
[Sources: Text, pp. 47-48 and 217; Handbook for Employers, Instructions for Completing the Form I-9; the I-9 Form; 8 U.S.C. § 1324a(b)(1)(A).]
HANDOUT 4
Discrimination on the Basis of Genetic Information
A. California Law
* Even before the federal law was enacted, California prohibited discrimination based on genetic information. Under California law, the prohibition on discrimination based on genetic information is included within the prohibition based on medical condition under the Fair Employment and Housing Act.
- Under California law, genetic information means: “(A) Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or his or her offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.
or
- “(B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder. “
B. Federal Law (GINA)
- Under GINA, it is illegal for any business employing 15 or more employees to inquire genetic information from employees or applicants or discriminate or harass against any employee in any aspect of employment, including hiring, firing, pay, job assignments, and fringe benefits because of genetic information or retaliate against employees who oppose genetic discrimination. The law also requires employers to keep genetic information about their employees strictly confidental and in a seperate medical file.
- According to the EEOC “[g]enetic information includes information about an individual’s genetic test and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members (i.e. an individual’s family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.”
- “Genetic information” does not include tests for alcohol or drug use.
