Can you harass someone for being American?

The EEOC does not file many lawsuits.

It receives tens of thousands of discrimination charges every year but litigates only a tiny fraction of them. Which means that when the agency does decide to sue, it is usually trying to say something bigger about its enforcement priorities.

That is what makes the EEOC's recent national origin discrimination lawsuit so interesting.

Civil-rights enforcement isn't a culture-war trophy

The Wall Street Journal just profiled EEOC Chair Andrea Lucas under the headline "Trump's DEI Slayer Is Just Getting Started." On LinkedIn, Lucas replied, "thanks … that's right! Buckle up for more…"

It's… an odd flex.

Title VII protects everyone. Always has. White employees, men, Christians, and cisgender individuals are covered just the same as workers from traditionally marginized communities. Discrimination is discrimination, whoever the victim is.

But equal protection doesn't mean equal priority. And it doesn't mean the EEOC should treat anti-Christian bias, anti-American bias, or corporate DEI programs as the nation's most urgent civil-rights threats.

When immigration policy change overnight…

What's an employer supposed to do when immigration policy shifts overnight?

That's the question employers across the country are now facing. More than 500,000 immigrant workers—who entered the U.S. legally under a humanitarian parole program—were recently told to leave their jobs and “self-deport” after the Department of Homeland Security abruptly ended the program.

The headlines are emotional. The legal issues are complex.

Generally, if an employee has a properly completed I-9 form, the employer is not liable for hiring someone who later turns out to be unauthorized. As long as the documents provided at the time of hire reasonably appear genuine and relate to the employee, you're in the clear. That's exactly how the system is meant to work.

This situation, however, is different. In this case, the government is notifying employers that certain employees' immigration status has changed—and that they are no longer authorized to remain in the U.S. Still, even under these circumstances, telling an employee to "self-deport" carries legal risk.

EEOC's policy shift to "protect American workers" is all about punishing non-Americans

If you hire non-Americans, the EEOC is coming after your business.

In a press release, Acting Chair Andrea Lucas says the following: 

"The EEOC is putting employers and other covered entities on notice: if you are part of the pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop.… Many employers have policies and practices preferring illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers—in direct violation of federal employment law prohibiting national origin discrimination."

Lucas's statement—while technically correct under Title VII—creates more problems than it solves. 

An expensive lesson on pay-equity compliance

Mastercard has agreed to pay $26 million to settle allegations that it systematically underpaid thousands of female, Black, and Hispanic employees. The settlement resolves claims that the company underpaid 7,500 female, Black, and Hispanic workers compared to their male and white counterparts for performing the same or similar work.

As this case illustrates, allegations of systemic pay discrimination hit hard—financially and reputationally. As an employer, you can and should take steps to ensure fair pay practices. Not only because it's the right thing to do, but because it's critical to avoid costly lawsuits and foster a workplace of trust and respect.

Do you know what to do if ICE raids your business?

With Donald Trump running on campaign promise of the mass roundup and deportation of millions of undocumented immigrants, many businesses in the new year may face unannounced visits from Immigration and Customs Enforcement. Donald Trump has said that he plans mass deportations on day one, meaning that "if ICE shows up" could become "when ICE shows up" for employers across the country. Are you ready?

Having a response plan in place is essential, and it's crucial that your staff, particularly those who may first encounter agents, like a receptionist, are trained on what to do. Here's how to get started:

Musings on Springfield and national origin discrimination and harassment

We need to talk about the false and xenophobic rumors about Haitian migrants eating cats and dogs in Springfield, Ohio, stoked by a certain Presidential candidate. Schools, universities, hospitals, and even city government buildings have been closed because of threats of violence. And it's reasonable to assume that Haitians legally working in the businesses in and around Springfield are facing unlawful harassment as a result. It's inexcusable.

Per the EEOC, "Title VII prohibits employment discrimination, including unlawful harassment, based on national origin — meaning discrimination due to a complainant's, or the complainant’s ancestors', place of origin. Harassment based on national origin includes ethnic epithets, derogatory comments about individuals of a particular nationality, and use of stereotypes about the complainant's national origin."

Here are 4 tips for all employers to proactively address these issues in your workplaces:

Think twice before implenting that “English only” rule in your workplace

White Americans, what?
Nothing better to do?
Why don't you kick yourself out?
You’re an immigrant too!

– Jack White, Icky Thump (2007)

Total Employment and Management has agreed to pay $276,000 to settle a national origin discrimination and retaliation charge filed with the EEOC challenging the employer's "no Spanish" rule in its workplace.

The EEOC alleged that TEAM not only imposed its no-Spanish rule without an adequate business justification to support it, but it also fired five employees for defying the rule and continuing to speak Spanish.

Supporting our AAPI employees in their time of crisis

The stats are jarring, disturbing, and scary. During the past year of the COVID-19 pandemic, there have been nearly 3,800 reported anti-Asian hate incidents, including shunning, slurs, and physical attacks. That number represents a stunning 46 percent increase over the prior year, and still just a small percentage of the actual number that has occurred. These incidents culminated last week in Robert Aaron Long shooting and killing eight people at three Atlanta-area massage parlor.

Your AAPI (Asian Americans and Pacific Islanders) employees are hurting. Here are some thoughts on how we, as their employers, can best support them. 

“Hairstyle discrimination” laws: a solution in search of a problem

I fully embrace the irony of a local news broadcast holding me out as the expert on hair discrimination. 👨🏻‍🦲

Irony notwithstanding, here I am on last night’s 6 o’clock news discussing why we don’t need to ban workplace hairstyle discrimination. (Big thank you to WEWS’s Mike Brookbank for reaching out and for the interview.)

Do you know what to do if ICE shows up at your business?

Last week, US Immigration and Customs Enforcement agents arrested nearly 700 immigrants as part of a series of raids at work-sites throughout Mississippi. The raids are part of the Trump administration’s ongoing crackdown on illegal immigration.

What if ICE shows up at your business. Do you know what to do?

I’ve covered this topic previously. Given the recent news, It thought it was worth revisiting. You can read my thoughts here.

* Photo Courtesy of ICE. [Public domain], via Wikimedia Commons

Do you know? English-only workplace policies

White Americans, what?
Nothing better to do?
Why don't you kick yourself out?
You're an immigrant too!

– White Stripes, Icky Thump (2007).

Estefany Martinez-Gonzalez and Imelda Lucio Lopez, both crew members at a McDonald's restaurant, and both Hispanic, claimed that their employer discriminated against them by requiring them to speak English at work (as opposed to their native Spanish).

In the era of #metoo, let’s not lose focus on the “me”s other than sex

Photo by Luke Braswell on Unsplash

We’ve all done a lot of talking over the past six months about sexual harassment. We should not forget, however, that our laws make harassment unlawful if it’s based on membership in any protected class.

A federal jury in Detroit just provided employers a very real reminder of this fact.

It tagged Ford Motor Co. with a $16.8 million verdict. The plaintiff, a former Ford engineer, proved that the automaker created a hostile work environment based his Arab background.

National origin discrimination laws don’t matter in Trump’s America

Last week, President Trump signed his “Buy American, Hire American“ Executive Order. The EO encourages American businesses to buy American-made products and hire American workers.

Come again? Does that say hire American workers? Doesn’t Title VII prohibit national origin discrimination?

Yes, Title VII still prohibits national origin discrimination. And, no, this Executive Order does nothing to change Title VII’s impact. But the manner in which the White House is promoting this EO is … curiously disturbing.

Trump’s un-American travel ban and the workplace

I’ve had an internal debate all weekend long over whether I should blog about Trump’s executive order that that bans immigration from seven Muslim countries, suspends refugees for 120 days, and bars all Syrian refugees indefinitely. Ultimately, I decided that if you are not part of the solution you are part of the problem, and this issue is too important to remain silent. I choose to be on the correct side of history.

If you are a staunch defender of the President who does not care to read an opposing view, I suggest you stop reading now, and come back tomorrow for a more benign post. Or, better yet, post a comment and let’s have an intelligent debate about this issue. And, if you choose to unfollow or unfriend me because of my opinion, you are more than welcome to do that too. This is still America, and I respect your right to have an opinion even if I disagree with it. I hope, however, that you show me and my opinion the same respect and patriotism that I would show you and yours.

“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.

Lessons from a job interview

Last week, Steven Colbert conducted a mock job interview for President Obama. During the course of the interview, he asked the President questions that referred both to his age and the national origin of his birth.


Oops.

What lessons can employers learn from these few moments of late-night frivolity?

What you need to know about EEOC’s proposed national-origin-discrimination guidance

I had a post prepared in my brain about the EEOC’s recently published proposed Enforcement Guidance on National Origin Discrimination. And then Robin Shea beat me to the punch. So, instead of recreating the wheel, I am instead directing you to her always excellent Employment & Labor Insider blog, where she shares 25 quick takes (no kidding!) on the EEOC’s proposed guidance.

We stand with France; we stand against discrimination

Photo by Jon Hyman, 8/6/15

What happened Friday evening in France is unfathomable. Except, really, it isn’t. We experienced it 15 years ago in New York City. And, in the aftermath of 9/11, discrimination against Muslims and Arabs increased by 250 percent.

From the EEOC:

When English-only policies and federal labor law collide

It’s been nearly 8(!) years since I first wrote about the legality of English-only workplace rules. If you scan the archives, all of my coverage of this issue has focused on whether such policies discriminate on the basis of national origin in violation of Title VII.

Now the NLRB is attempting to interject itself into this debate.

Last month, in Valley Health System [pdf], an NLRB Administrative Law Judge concluded that a healthcare provider’s English-only rule violated employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

The policy in Valley Health System required that all employees speak and communicate only in English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers … unless interpretation or translation is requested or required.”

The ALJ concluded:

Employees would reasonably construe [the] English-only rule to restrict them from engaging in concerted activity…. [The] English-only rule is vague as to time and location (i.e., must use English in patient and non-patient areas, in patient access areas, and between employees, staff, customers, patients and visitors), it infringes on an employee’s ability to freely discuss and communicate about work conditions, wages and other terms and conditions of employment.

What does this decision mean for your business?

1. It is only one decision of one ALJ. It is not binding on the Board, and it is not the law of the land. However, given how broadly the NLRB currently is interpreting employees’ section 7 rights under facially neutral workplace policies, businesses should nevertheless pay close attention.

2. It may not be sufficient that an English-only policy pass muster under Title VII as supported by a “business necessity.” Regardless of the business need for employees to communicate in English, a policy still may fall as unlawful if it prohibits or restricts employees from communicating about workplace terms and conditions.