Whether you enjoyed (or not) the most recent Saturday Night Live skit where Alec Baldwin (as Trump) states he is “going to build that swamp,” the fact is that anti-immigrant rhetoric is on the rise following Trump’s promise to build a wall and his comments connecting immigrants and crime. Political rhetoric which may pass muster on the campaign trail, however, may not fare as well under current federal and state employment laws.
This past month, the U.S. Equal Opportunity Commission (EEOC) updated its Enforcement Guidance on National Origin Discrimination. Accompanying the Guidance are Questions and Answers and a Small Business Fact Sheet. Note the last update was in 2002, so you may want to instruct your human resources personnel to read this new 2016 update. The Guidance, which addresses national origin discrimination, should be of particular interest to the construction industry which employs 2.85 million Hispanic workers of which 50% of those are foreign-born. Asians also make up 25% of the foreign-born construction workforce.
Overview of Federal and California Discrimination Laws
Title VII is the federal law that prohibits discrimination and retaliation based on race, color, religion, sex, or national origin. In fiscal year 2015, the EEOC received almost 90,000 complaints of discrimination based on national origin. National origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group. Title VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin. National origin discrimination includes discrimination by a member of one national origin group against a member of the same group.
With over 10.5 million immigrants (based on 2014 data) in California, it is no surprise that the California has adopted several laws over the years protecting against national origin discrimination. Under the Fair Employment and Housing Act, California also prohibits national origin discrimination whether actual or perceived and based on the worker’s association with others of that protected category. Under California law, national origin discrimination also includes language discrimination and accent discrimination. An employer cannot require applicants and employees to speak English only in the work place unless there is a legitimate nondiscriminatory reason for doing so and if such requirements promote the safe and necessary operations of the employer’s business. An employer may not make any employment decisions based on an employee or applicant’s accent.
California also prohibits discriminating against an applicant or employee because he or she possess a driver’s license issued to a person who is unable to prove he or she is legally authorized to be present in the U.S.
California also makes it unlawful to threaten to report immigration status. Take a look at our post from earlier this year regarding AB 560 and SB 623 for other immigration-related laws.
EEOC Scenarios and Explanations
The following are some scenarios that appear in the new Guidance. Of relevance to the construction industry are the security screening and a Social Security Number requirements.
Security Requirements and Screening
Some construction jobs may require national security clearance. An employer has a legitimate non-discriminatory business reason for refusing to hire, refusing to refer, or terminating an individual who does not meet job requirements that are “imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under” any federal statute or Executive Order. This situation may come up when a project requires the business to enroll in E-Verify as a condition of the government contract.
Example 31. Citizenship Requirement as Pretext for National Origin Discrimination. Juanita, a Guatemalan-born naturalized U.S. citizen, was assigned by Staffing Firm to work as a technician for XYZ, an industrial subcontractor that builds equipment for use at nuclear facilities. Staffing Firm’s contract with XYZ includes a clause requiring that anyone working on its projects must be a U.S. citizen. Shortly after beginning her first shift at XYZ, Juanita is told to produce a U.S. birth certificate in order to establish her citizenship. Juanita cannot produce a U.S. birth certificate because she was born in Guatemala, but she does provide her U.S. passport to prove her citizenship. The XYZ manager tells Staffing Firm that Juanita cannot continue working at its plant because she cannot provide proof that she was born in the U.S and terminates her employment. Based on these facts, the EEOC finds reasonable cause to determine that Juanita was subject to unlawful national origin discrimination. Additionally, the EEOC determines that Staffing Firm and XYZ may be liable as joint employers
New Hires and Social Security Numbers
A policy or practice of screening out new hires or candidates who lack a Social Security number implicates Title VII if it disproportionately screens out work-authorized individuals of a certain national origin, such as newly arrived immigrants or new lawful permanent residents, and thus has a disparate impact based on national origin. If a new hire or applicant shows that such a policy or practice has a disparate impact based on her national origin, its use is unlawful under Title VII unless the employer establishes that the policy or practice is job related and consistent with business necessity.
Employers should refer to the Handbook for Employers Guidance for Completing Form I-9 to manage these tricky hiring situations.
Example 33. Citizenship Requirement that May Violate Multiple Statutes. Staffing Company routinely hires U.S. citizens as well as non-U.S. citizens who have work authorizations. It verifies all employees’ eligibility for employment through E-Verify, but requires non-citizens to submit additional documentation beyond what is required to establish their work authorization. Staffing company does not require extra documentation from U.S. citizens.
If Staffing Company has more than four employees, it has violated the antidiscrimination provisions of the INA, which prohibit employers from using discriminatory documentary policies, procedures, or requirements based on citizenship or national origin when determining or re-verifying an employee’s work authorization. In addition, if Staffing Company only requires the additional documentation from non-citizens or individuals of particular national origins, Staffing Company has also violated Title VII.
More Sample Scenarios from the New EEOC Guidance
There are 35 scenarios in the new guidance to help identify whether or not a policy or practice may involve national origin discrimination.