Friday, January 20, 2017

Understanding National Origin Discrimination – Part 2

Last week, we discussed the definition of national origin discrimination and the requirements imposed on employers by state and federal law. Today’s post provides examples of workplace issues involving workers’ national origin, and provides points for employers to consider as they manage national origin issues in the workplace.
Examples
National origin discrimination claims can arise from lots of different circumstances. A fairly classic set of facts is presented in a November 2016 suit brought by the EEOC. The agency alleges that a temporary staffing firm segregated Latino workers in less desirable, more hazardous positions, paid them less, and provided fewer hours than their non-Hispanic counterparts. When the Latino workers complained about ongoing harassment including ethnic slurs, threats, and verbal abuse, the staffing firm did nothing.
In 2015, the EEOC brought suit against National Tire & Battery in a case involving facts that have become more common since 9/11. The suit alleged that managers and coworkers regularly called an Arab Muslim mechanic “Taliban,” “al-Qaeda,” “bin Laden,” and “terrorist” and accused him of making bombs. The mechanic complained repeatedly to management, but the company did nothing to stop the harassment. The case eventually settled for $22,500. In a similar case, the EEOC charged that a car dealership in Illinois subjected three Arab Muslim employees to a hostile work environment, alleging that the dealership’s managers used offensive slurs such as “terrorist” and “Hezbollah” and made mocking and insulting references to the Qur’an and the manner in which Muslims pray. That case was settled for $100,000.
Many claims of discrimination based on national origin involve allegations that an employee was instructed to speak—or not speak—a particular language. Just a few weeks ago, the EEOC announced that Kevothermal, a manufacturer of vacuum insulation panels, agreed to pay $60,000 and change its practices in order to settle a lawsuit in which it was alleged that a Hispanic employee was instructed not to speak Spanish on the production floor, although it was part of her job to translate for other employees who only spoke Spanish. In another case, the EEOC sued a Wisconsin plastics company for firing a group of Hmong and Hispanic employees based on 10-minute observations that marked them down for English skills, even though those skills were not needed to perform their jobs.
In a particularly interesting case, Hispanic employees sued Target for national origin discrimination based in part on the company’s distribution of an internal memo with “Multi-Cultural Tips” for managers, which included reminders that not all employees eat tacos and wear sombreros. The suit also alleged that supervisors, who were nearly all Caucasians, frequently used racial slurs with Hispanic employees. Target apologized for the tip sheet, but we can’t find any reports on the outcome of this litigation.
National origin discrimination claims can result in significant financial consequences for employers. In 2015, Patterson-UTI Drilling agreed to pay $14.5 million to settle a class-action suit alleging a nationwide pattern of discrimination on the company’s oil rigs. The drilling company was accused of assigning minorities to the lowest level jobs, failing to train and promote minorities, and disciplining and demoting minority employees disproportionately. Hispanic employees said they were subject to racial slurs that escalated to physical harassment.
Management
The EEOC has made national origin discrimination a particular priority. In 2016, EEOC chair Jenny Yang said that the EEOC “has identified protecting immigrant, migrant, and other vulnerable populations as a national strategic priority.” In addition to its recently published enforcement guidance, the EEOC recently published another guidance tool titled “What You Should Know About Religious and National Origin Discrimination Against Those Who Are, or Are Perceived to Be, Muslim or Middle Eastern.” The agency included in its Strategic Enforcement Plan for Fiscal Years 2017-2021 the emerging priority of addressing backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, and persons perceived to be members of these groups. If the EEOC is concerned about this, employers should be too. Here are some suggestions for employer action:
  • Educate HR professionals, managers and supervisors about legal requirements and the definition of national origin discrimination. They are an employer’s eyes and ears in the workplace, and can recognize issues before they escalate into problems.
  • Establish and enforce a zero-tolerance policy for harassment based on national origin. Investigate claims and discipline offenders.
  • Scrutinize hiring policies and practices to identify and eliminate those which discourage, screen out, or segregate applicants and employees based on national origin.
  • Be extremely wary of English-only policies and English fluency requirements, adopting only those that are based on verifiable business necessity.
  • Never allow customer preference to result in discriminatory policies and practices.