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In the wake of the events surrounding September 11th, employers should be aware of federal and state laws prohibiting discrimination because of "national origin." These laws were put into place to eliminate discrimination in the workplace based on prejudice that has nothing to do with an applicant's ability to do the job. Discrimination does not have to be intentional to be unlawful. In order for an applicant or employee to prove a case of unlawful discrimination, the individual must prove that the employer's decision was made "because of" the employee's protected status. One of the protected classes is national origin, the ancestry of a particular individual.
Title VII of the Civil Rights Act of 1964 (Title VII)
Title VII prohibits employers with 15 or more employees from engaging in discrimination based on race, color, religion, sex or national origin with respect to compensation, terms, conditions or privileges of employment. The Equal Employment Opportunity Commission (EEOC) is the enforcing agency and is authorized to investigate charges of discrimination and to bring these actions in federal court on behalf of both individuals and classes of employees. The EEOC has enumerated certain employment practices that may violate the prohibition against discrimination on the basis of national origin:
- 1. Refusing to hire an individual because of his/her ancestor's place of origin or because the individual has physical, cultural or linguistic characteristics of a particular national origin group.
- 2. Refusing to hire an individual based upon that individual's accent or manner of speaking unless the employer can show a legitimate, nondiscriminatory reason for its action. An employer in this instance would have to show that the individual's accent interfered with job performance.
- 3. Allowing ethnic slurs or other verbal or physical conduct relating to the individual's national origin. This "harassment" will constitute a violation under the statute when the conduct creates an intimidating, hostile or offensive working environment and has the purpose or effect of unreasonably interfering with that individual's performance. In addition, a finding of national origin discrimination may be found when an individual's national origin adversely affects the individual's employment opportunities.
- 4. Putting in place a "speak English only" rule unless the rule is justified by business necessity. Such "speak English only" rules are presumptively unlawful because they unduly burden individuals whose primary language is one other than English. This rationale also applies to English fluency requirements that are not shown to be job-related.
- 5. Requiring aptitude or other employment tests that disproportionately disqualify applicants of a particular national origin which are not shown to be related to effective and successful job performance.
- 6. Requiring a particular citizenship, as such rule disproportionately disqualifies individuals based on national origin unless that citizenship requirement is justified by a business necessity.
Immigration Reform and Control Act
The Immigration Reform and Control Act (IRCA) prohibits employment discrimination based on national origin or citizenship status. Employers with four or more employees are prohibited from discriminating against any person (other than an unauthorized alien) in hiring, discharging, or recruiting or referring for a fee because of the individual's national origin or citizenship status. It is also unlawful under the discrimination provisions of this law to:
- 1. Limit jobs to United States citizens to the exclusion of authorized aliens;
- 2. Request applicants to provide more or different documents or refuse to honor documents that reasonably appear to be genuine;
- 3. Set different employment eligibility verification standards or require that different documents be presented by different groups of employees;
- 4. Refuse to hire an individual because a document presented has a future expiration date;
- 5. Adopt a blanket policy of always preferring a qualified citizen over an equally qualified alien; or
- 6. Intimidate, threaten, coerce, or retaliate against any individual for exercising his/her rights under this law or because the individual intends to file or has filed a charge or complaint against the employer or has participated in an investigation, proceeding or hearing.
Wisconsin State Law
The principal Wisconsin law against employment discrimination is the Wisconsin Fair Employment Act (WFEA). This law prohibits discrimination based on any of 17 enumerated categories, one of which is national origin. The WFEA covers ALL employers. It holds that it is an act of employment discrimination to do any of the following:
- 1. To refuse to hire, employ, admit or license any individual, to bar or terminate from employment or labor organization membership any individual or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership because of any of the prohibited discriminatory bases.
- 2. To print or circulate, or cause to be printed or circulated, any statement, advertisement or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination with respect to an individual or any intent to make such limitation, specification or discrimination because of any of the prohibited discriminatory bases.
- 3. To discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice or because he or she has made a complaint, testified or assisted in a proceeding under the WFEA.
Not all forms of discrimination engaged in by an employer are unlawful. To prove that an employer's actions were discriminatory, a plaintiff must provide evidence of the alleged discriminatory act. If the plaintiff's evidence is sufficient to support the claim of discrimination, an employer must then present evidence that indicates the business necessity or legitimate reason for the decision. If the employer can provide evidence of nondiscriminatory reasons for its conduct, an employee has one last opportunity to sustain his/her claim by alleging that the employer's reasoning is a pretext for the real discriminatory reason. Although an employer may not discriminate against an individual based on national origin or citizenship, the law is not intended to "favor" aliens over equally qualified United States citizens. It is not unlawful discrimination to choose a United States citizen over an authorized alien if the two persons are equally qualified. However, as stated above, an employer may not adopt a blanket policy of always preferring a qualified citizen over a qualified alien.
For more information about discrimination and other employment law issues, call Krukowski & Costello, S.C. at (414) 423-1330, or e-mail educational services.
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