Recently in National Origin Category
That may be sugar coating it a bit.
A county employee, who applied for a lateral transfer, and ultimately received that transfer, was able to convince two judges on a federal appellate court that the transfer was discriminatory.
That's right. An employee may have a discrimination claim for receiving the specific transfer he requested.
Here's what the two-judge majority wrote in this opinion:
[W]e conclude that under certain circumstances, a voluntary or requested transfer may still give rise to an adverse employment action...We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the "conditions of the transfer" would have been "objectively intolerable to a reasonable person."
Let me stop there for a second to add that the plaintiff in this case testified that he viewed the transfer as improving his potential for career advancement. Still, that didn't appear to matter much to the Sixth Circuit Court of Appeals:
Indeed, an employee's opinion of the transfer, whether positive or negative, has no dispositive bearing on an employment actions classification as "adverse."
For what it's worth, one judge did dissent. I'm on board with his reasoning:
Deleon voluntarily applied for the job with full knowledge of its pros and cons, making it difficult to fathom how he could premise a claim of retaliation on the transfer alone. A retaliation claim requires the employer to do something bad to the employee--something that might "have dissuaded a reasonable worker from making or supporting a charge of discrimination." That concept cannot be bent and stretched to cover an employer's decision to grant an employee's request for a transfer. No reasonable employee in Deleon's position would have interpreted the transfer as an act designed to prevent him from exercising his rights against anti-discrimination.
And, thankfully, I practice in the Third Circuit Court of Appeals, where the employers I represent are not bound by the majority's decision here.
For more on this decision, check out Jon Hyman's post at the Ohio Employer's Law Blog.
Last week, the U.S. Equal Employment Opportunity Commission held a public meeting in Washington, D.C. at which invited panelists spoke on national origin discrimination issues in today's workplace.
Participants discussed various recruitment and hiring issues; discriminatory treatment in assignments; pay discrimination; language and accent issues; effective communication and access issues; harassment; and retaliation.
The EEOC's event press release highlighted some comments and issues of which employers should take note. Most notably, one management-side lawyer, Douglas Farmer, testified that the multi-cultural workplace presents challenges for employers. For example, based on their cultural background, some men may find it difficult to have a female supervisor.
The press release highlights some of the solutions Attorney Farmer proposed:
Farmer cited the need for extensive education about both rights and responsibilities under the law. He suggested that the EEOC develop training modules in a variety of languages as well as a model anti-harassment policy, and make them available on its website for employers to download.
You can read the full written testimony from Attorney Farmer, as well as the other panelists here.
While the EEOC sorts these issues out, proactive employers will want to consider second-language employee handbooks and obtaining legal advice before implementing an "English-only" policy in the workplace. Both of these approaches can help you avoid facing charges filed with the EEOC.
Consider this your performance review ProTip for Tuesday, courtesy of this recent decision from a Texas federal court, in which an employer's summary judgment motion was denied, and a Mexican-American plaintiff's race and national origin discrimination claims will proceed to trial.
The smoking gun, it seems, was an affidavit from one of the plaintiff's supervisors filed in support of the employer's motion for summary judgment, in which the supervisor stated, "I advised Ms. Garza that this 'ghetto-ness' would no longer be tolerated, and that she would be terminated if it continued." The plaintiff argued that this statement was direct evidence of discrimination against her. The defendant countered with the argument that "cases in which comments containing the word 'ghetto' have been viewed as facially discriminatory generally involve African American employees, while Garza is Hispanic."
Now, look folks. I don't know how things work in Texas. They've got a Heisman Trophy winner who appears to be imploding right before our very eyes, and this. I reckon -- see how I did that? -- that the only two things I can trust down there are good barbecue and Tony Romo leading the Cowboys right out of the playoffs in December. The "ghetto relates only to African American employees" defense
makes about as much sense as an Amanda Bynes tweet doesn't strike me as compelling.
Well, it didn't move the court either. Instead, the it took the logical route and reviewed the dictionary definition of "ghetto", which does not refer to African-Americans, only to racial minorities, of which Mexican-American is one of them. Then add in that the plaintiff's manager referred to the "ghetto-ness" in Garza's office as a reason behind her termination and noted this on her Termination Report, and you've a got a case going to trial.
Photo credit: valentine1692005 (ghetto bucharest) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons
This week, I am on vacation. The Supreme Court didn't get my memo. Fine. But, I'm not putting down my beer to write this post. So, you get a one-handed rundown of the two employment-law decisions the court issued yesterday.
Pardon my typos after the jump...
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A federal court (opinion here) has determined that a Jordanian employee nicknamed "Borat" by his co-workers can proceed to trial on his claims of race and national-origin discrimination.
Yeah, I know what you're thinking. Borat isn't from Jordan. He's from Kazakhstan (NSFW). So how can Borat the Jordanian claim discrimination?
Readers of this blog know that mistaken religious discrimination is illegal. And, in the Borat example, so is mistaken national-origin discrimination. Indeed, it can still happen even if the Jordanian employee's harassers didn't know he was from Jordan. As the court noted, it is enough for a plaintiff to show that he was treated differently because of his foreign accent, appearance or physical characteristics.
And if the harassers knew that the Jordanian employee was from Jordan? The Borat comments could still tee up a race-discrimination claim if the harassers intentionally conflated Arab and Kazakh identities. Otherwise, the teasing would make so sense.
VW may be able to get away with joking about foreign accents during the Super Bowl, but don't tolerate employees who engage in similar workplace hijinks.
[If you listen carefully, you can actually hear the sound of page-hits and prurient reader interest cascading at The Employer Handbook. It's got a little funky Salt n' Pepa beat to it...]
Last May, I
slobbered over blogged here about a former Indianapolis Colts' cheerleader who sued the team claiming that the Colts discriminated against her on the basis of her race (Asian) and national origin (Indonesian).
Earlier this week, the court ruled on the Colts' motion to dispose of the case. While I think we can all agree that this sort of hard-hitting blog fodder is better suited for a Monday post, I'm going to blog the heck out of the Court's decision...after the jump. (It's a long post, but it's soooooo worth it).
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Yesterday, the US Equal Employment Opportunity Commission issued updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. (Title VII is the federal statute that prohibits discrimination in the workplace based on race, color, religion, sex and national origin). You can read a full press release on the updated Enforcement Guidance here.
The press release includes a link to questions and answers about the EEOC's Enforcement Guidance. However, I will summarize the most important points for employers after the jump...
Unfair treatment because of one's language may be related to race or national origin discrimination. Indeed, language may be used as a covert basis for discrimination.
But that's not always so. A recent case and some helpful nuggets on English-only rules after the jump...
Now in autotune.
(Betcha didn't expect that).
Yesterday, we were rapping (without the benefit of autotune) about immigration status and unlawful discrimination and concluded that Title VII of the Civil Rights Act of 1964 does not prohibit workplace discrimination on the basis of immigration status (although national-original discrimination is unlawful). And we know from a super-hot "Fact or Fiction" post last year that Title VII covers Americans who are employed abroad. It was so hot.
Now, get ready for the hat trick, Gretzky.
Late last month, a federal court in Michigan recognized that foreign employees of a foreign employer should not be counted as employees for purposes of Title VII. Who cares, right? Well, you should. As you know from this post, you need 15 employees to be covered under Title VII. If ABC Company has 14 employees working at a US facility and 1 more employee, a Canadian resident, who works exclusively for ABC in Canada, ABC is not covered under Title VII.
This could also become an issue, as it did in the Michigan case, where an employer is right up against a statutory damages cap. Caps are placed on compensatory damages according to the size of the employer. The limits on damages are as follows:
15 to 100 employees: $50,000
101 to 200 employees: $100,000
201 to 500 employees: $200,000
501 employees or more: $300,000
Notwithstanding the foregoing -- or something legalese like that -- state laws covering workplace discrimination and damages caps may vary. So, mind your p's and q's. Or maybe you just shouldn't discriminate at all.
I had this song in my head for about two hours on Sunday.
Then I listened to the Trent Reznor version, ick....
This blog post has a point, right? Oh yeah, discrimination. A little reminder from a recent Eight Circuit case, Guimaraes v. SuperValue, Inc., that when it comes to employees with green cards, discrimination under Title VII on the basis of national origin is illegal. However, Title VII discrimination based on citizenship or immigration status is not:
Guimaraes conflates citizenship or immigration status with national origin. Her green card process shows her intent to change her citizenship or immigration status by becoming a lawful permanent resident. True, a reasonable jury could find the "green card" statement evinces an intent to terminate Guimaraes because she is not yet a lawful permanent resident. The Supreme Court has held, however, that while aliens are protected from illegal discrimination under Title VII, nothing in Title VII makes it illegal to discriminate on the basis of citizenship or alienage.
Of course, employers that do discriminate on the basis of immigration status do so at their own risk -- like the risk of getting sued for national-origin discrimination.
Update: As adroitly noted in the comments below, the scope of this post is limited to Title VII.
I had trouble sleeping last night.
If you read yesterday's post, you know that when deciding between a post about an NFL cheerleader who was fired for risque pictures mailed to the Indianapolis Colts versus labor law and Twitter, I chose labor law and Twitter.
I won't make the same mistake twice. So, without further ado, I have the
pictures federal-court complaint of the fired cheerleader and a brief rundown of her chances of success.
***Oh, Twitter. I can't stay mad at you. I'll give you a foot rub -- right after I finish this can of Four Loko.***
Don't judge me. Just skip past the jump. TGIF, yo.