Tuesday, November 29, 2016

“Perceived” national origin discrimination may not be illegal, but…

Lost in the maelstrom of the last week’s FLSA overtime rule injunction was the news that the EEOC issued updated enforcement guidance on national origin discrimination.

The guidance, which replaces the EEOC’s older 2002 guidance and covers topic such as citizenship, language issues and English-only policies, and harassment, is recommended reading for all employers, as are the EEOC’s companion Q&A and small business fact sheet.

Let me point out, however, one area of contention—the issue of “perceived” national origin discrimination.

According to the EEOC, “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,” and “Title VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin.”

The federal courts, however, have a different view. 

Consider, for example, Longoria v. Autoneum N. Am. (N.D. Ohio 9/13/16), which concerned whether one of American dissent could pursue a Title VII national origin discrimination claim based on his employer’s perception that he was Mexican. The court said no:
Longoria cites no Ohio case law that has validated, or even discussed, this theory of liability. Because Ohio courts generally took to Title VII cases when applying O.R.C. § 4112.02, I conclude that the Ohio courts would not recognize a perceived-national-origin discrimination claim, given its widespread failure in the federal district courts.
Also consider Burrage v. FedEx Freight, Inc. (N.D. Ohio 3/29/12) (about which I’ve previously blogged), which makes it clear that Title VII does not protect one from discrimination based on perceived characteristics, only actual characteristics.

Thus, if an employee sues you based on claim of perceived national origin discrimination, it is highly likely that I will be able to win that case (EEOC guidance notwithstanding).

Legal or illegal, however, the issue of perceived inclusion in a protected class raises a deeper issue. What kind of employer do you want to be? Do you really want to be the employer who condones calling a Mexican employee a wetback, yet wins in court because she’s really American? Or, the employer who win the lawsuit brought by your Indian-American employee who was repeatedly called “ISIS”? Racism and xenophobia are still racism and xenophobia, and legal technicalities do not justify them having place in your workplace, period.