Download disparate treatment in national origin

CLASS TEN-NATIONAL ORIGIN DISp
CRIMINATION
NATIONAL ORIGIN DISCRIMINATION
EEOC guidelines on national origin
discrimination prohibit discrimination on the
basis of:
• Employee’s or ancestor’s place of origin
• Physical, cultural or linguistic characteristics
• Marriage or other association with persons associated with a
national origin group
• Height or weight specifications
NOTE: Prohibition against “national origin” discrimination
does not protect against discrimination based on
citizenship status.
DISPARATE TREATMENT IN NATIONAL ORIGIN
DISCRIMINATION
English-only rule may constitute disparate
treatment only if unequally applied to all
national origin groups.
• If the English-only rule is neutral on its face, but it is applied
differently against employee members of a particular national
origin group
• Use of statistical evidence to show that English-only rule has
been differently applied to similarly situated employees.
NOTE: Courts have been generally reluctant to challenge
English-only rules under a disparate treatment theory.
DISPARATE IMACT IN NATIONAL ORIGIN
DISCRIMINATION
English-only rule may constitute disparate
impact only where:
• Defendant has a policy prohibiting speaking of
any language other than
English at work
• Rule not applicable to all employees
• Rule disproportionately affects a protected
group
PROVING NATIONAL ORIGIN DISCRIMINATION
•
Can plaintiff establish that the English-only rule
has a disparate impact re: promotional and employment
opportunities
•
Was appropriate notice given before rule implemented
•
Is there a justification for a “business necessity” defense by
the defendant?
NOTE: Courts and the EEOC have disagreed on
the English-only rule. The EEOC will consider this
requirement a burdensome condition of employment.
Courts, on the other hand, require plaintiff to establish a
rule’s discriminatory effect before shifting burden to
employer to justify the English only requirement.
“English Only” Policies-Slide 1
• In Montes v. Vail Clinic, 497 F.3d 1160 (10th Cir. 2007), which
involved a group of housekeeping personnel, the court said
that if an “English only” policy were applied to all situations, it
might be seen as creating a hostile environment for Hispanic
workers. However, an employer was allowed to have an
“English only” policy, so long as it was limited to persons
working in the operating room and then only if it was a jobrelated discussion. In other words, the employer can properly
impose an “English only” policy so long as it is limited to
situations where communication between people of different
backgrounds is essential.
“English Only” Policies-Slide 2
• The Equal Employment Opportunity
Commission (EEOC) has regulations that
discourage “English Only” policies unless there
is a real business necessity. 29 CFR 1606.7 .
The rationale is that such a rule creates an
atmosphere of inferiority and intimidation
that could create a discriminatory working
environment.
“English Only” Policies-Slide 3
• Courts are likely to strike down “English only”
policies unless the employer shows that the
policy is needed to remedy a significant workrelated communication problem. The mere
fact that native English speakers do not like
hearing a foreign language does not justify the
policy. Maldonado v. City of Altus, 433 F.3d
1294 (10th Cir. 2006).
Cultural Awareness Distinguished
From National Origin
• In Gupta v. Walt Disney World Co., 256
Fed.Appx. 279 (11th Cir. 2007), the court held
that Disney could require its Norwegian
restaurant workers to be able to speak
Norwegian and be familiar with Norwegian
culture. So long as anyone of any national
origin could qualify by learning the Norwegian
language and culture, the policy was lawful.