Category Archives: National Origin Discrimination

NEW LAW: The Hair-Raising Adventures of Grooming Policies In New York City

In the growing trend of cultural and racial protections, the topic of hairstyles was recently addressed by the New York City Commission on Human Rights (NYCCHR).

The Commission’s new guidance (NYC Commission on Human Rights Legal Enforcement Guidanceon Race Discrimination on the Basis of Hair) explains that the New York City Human Rights Law (NYCHRL), states, “natural hair or hairstyles closely associated with Black people are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.”

Accordingly, employers in New York City are prohibited from having any policies that limit the length, style or color of hairstyles of any specific race or protected class. Singling out a specific race, such as African-American employees that defines the styles or natural states of their hair can be viewed as discriminatory.  The NYCHRL “protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities.”

While employers can institute policies that limit hairstyles and length for health and safety concerns, they must apply these policies equally to all employees regardless of their race. Any policy that forces any ethic employee to straighten (by way of heat chemicals) or change their grooming style in a way that would conform to the majority race’s cultural norms would create a disparate impact upon those employees. Examples given from the NYCHRL of hairstyles that cannot be restricted are, “twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with Black people.”

The NYCHRL focuses much of its attention on African American employees, but other ethnicities are covered under this guidance as well. The guidance states, “any grooming or appearance policies that generally target communities of color, religious minorities, or other communities,” are prohibited. This protection could potentially extend to hair wraps for such as Muslim and Sikh turbans, hijabs and Jewish yarmulkes.

Age and gender are also addressed in this new guidance. Employers in New York City cannot create a policy that would limit the length of hair of a male employee (or an employee who identifies as male) if the same procedure would not also apply to a female employee (or an employee who identifies as female). Likewise, an employer cannot restrict or require the natural coloring of hair for older employees. In either case, employers would be at risk of recreating a requirement that could potentially discriminate based on gender or age.

As of February 19, 2019, New York City employers should make their policies compliant with this guidance.  The commission promoted this new potential law through their social media hashtag, “#YourHairYourRightNYC.” The Commission’s Chair stated, “Hair is part of you. Race discrimination based on hair is illegal in NYC.” While the commission’s guidance has not yet been accepted as a law, employers should still make sure they are compliant with this guidance.  Even though this is not a law, the NYCCHR can levy fines and damages to employers who violate the rules laid out in their direction. The commission is already investigating several complaints of possible discriminatory practices hair-related employer policies that have a disparate impact on their African American employees. Investigations into this hair-raising topic will not likely go away anytime soon.

Looking Beyond New York City

Employers outside New York City may not need to make the same adjustments but should be aware of this growing trend and look at their policies and be prepared to make some adjustments as well. Now that this trend is ‘hair,’ it is not likely to go away. It is possible that this guidance from NYCCHR will further braid its way into other American labor laws. One such law is the Title VII Civil Rights act which describes disparate impact as the effect of an employment practice that would cause a substantially negative bearing to hiring, promotion, or other employment condition to members of a minority race, sex, or ethnic group. It is recommended that all employers take another look at their grooming policy and make sure that it is not a blanket policy that might have a discriminatory effect on any of your minority employees. Employers should think twice before they cut an employee’s job short due to a bad hair day.

NEW REGULATIONS — FEHA Regulations Clarify National Origin Discrimination

On May 17, 2018, the California Fair Employment and Housing Council published new regulations relating to national origin discrimination, which expand the definition of “national origin” and expand the list of prohibited employment practices.  These new regulations go into effect on July 1, 2018 .

National Origin Definition (2 CCR § 11027.1)

Previously, the term “national origin” was not defined under the California Fair Employment and Housing Act.  Instead, it was interpreted to simply mean “the country where a person was born” or “the country from which his or her ancestors came.”

The new regulations now provide a broad definition of the term “national origin,” which  includes the individual’s or ancestors’ actual or perceived:

  1. physical, cultural, or linguistic characteristics associated with a national origin group;
  2. marriage to or association with persons of a national origin group;
  3. tribal affiliation;
  4. membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
  5. attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
  6. name that is associated with a national origin group.

Continue reading NEW REGULATIONS — FEHA Regulations Clarify National Origin Discrimination

2017 EEOC Litigation Data Released

The EEOC recently released the national enforcement data for the 2017 fiscal year.  According to this report, the total number of EEOC charges received in 2017 decreased from 91,503 received in 2016 to 84,254 received in 2017.

In addition, according to the report, in 2017, the EEOC resolved 99,109 charges and secured more than $398 million for victims of discrimination in private, federal and state and local government workplaces.  Most notably, the EEOC received 6,696 sexual harassment charges and 1,762 LGBT-based sexual discrimination charges and obtained $46.3 million and $16.1 million in monetary benefits respectively for resolving these charges.

Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five.  The total breakdown of charges by type is as follows:

Retaliation 41,097 48.8%
Race 28,528 33.9%
Disability 26,838 31.9%
Sex/Gender 25,605 30.4%
Age 18,376 21.8%
National Origin 8,299 9.8%
Religion 3,436 4.1%
Color 3,240 3.8%
Equal Pay Act 996 1.2%
Genetic Information Non-Discrimination Act 206 0.2%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

   Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 8,827 4,740 2,999 2,642 2,740 1,975
Florida 6,858 3,486 2,153 2,222 2,041 1,366
California 5,423 2,752 1,811 1,915 1,500 1,374
Georgia 4,894 2,434 1,864 1,362 1,596 807
Pennsylvania 4,516 2,133 1,195 1,647 1,293 1,118
Illinois 4,392 2,382 1,663 1,414 1,399 1,032
North Carolina 3,752 1,854 1,447 1,210 1,034 751
New York 3,690 1,711 1,095 1,052 1,142 858
Virginia 2,730 1,201 966 864 818 518
Tennessee 2,640 1,318 970 808 815 528

The full state breakdown of claims is available here.

NEW CASE: Wisconsin employees cannot waive claims under the Wisconsin Fair Employment Act

In a recent decision (Xu v. Epic Systems, Inc.), the Wisconsin Labor and Industry Review Commission has held that an employee’s discrimination claims under the Wisconsin Fair Employment Act (WFEA) are not waivable.  Specifically, the Commission found:

  1. Wisconsin employees cannot waive the right to file a discrimination complaint against his employer under the WFEA, and
  2. An employee may prosecute WFEA claims against his former employer – even if he previously waived and released those claims in a valid severance agreement.

The Case

In this case, a former employee had entered into a severance agreement with his former employer where, among other things, the employee agreed to waive any claims under the WFEA in exchange for a severance payment.

The severance agreement also contained a standard provision intended to comply with federal law which prohibits the waiver of the right to file a charge or complaint with certain federal agencies (e.g., the U.S. Equal Employment Opportunity Commission (EEOC), the Securities and Exchange Commission, the Occupational Safety and Health Administration, the National Labor Relations Board), which stated the following:

Nothing in this release is a waiver of a right to file a charge or complaint with administrative agencies such as the federal EEOC that I cannot be prohibited from or punished for filing as a matter of law, but I waive any right to recover damages or obtain individual relief that might otherwise result from the filing of such charge with regard to any released claim.

After signing the agreement, the former employee filed a complaint with the EEOC for race discrimination.  While the EEOC charge was dismissed, the former employee’s charges were cross-filed with the Wisconsin Equal Rights Division, where the employee claimed that the employer’s conduct also violated the WFEA.  Due to the severance agreement, the Division dismissed the claim and the employee appealed the dismissal to the Commission.

The Ruling

The Commission found even though the former employee had waived his right to recover any damages for violations of the WFEA, due to the standard clause (quoted above), he had not waived his right to file a charge with the Division.  Moreover, the Commission also concluded that employees cannot be precluded from filing a complaint with the Division.

NEW TOOL: The EEOC Makes It Easier For Employees To File Discrimination Charges

Watch out employers!  The EEOC has joined the digital age by rolling out its new online filing portal, or Public Portal nationwide.  With this new tool, employees are now able to easily initiate a charge with the EEOC.

Using this new system, employees are able to file a discrimination charge with the EEOC online.  In addition to filing a charge, employees are also able to use this system to manage an EEOC charge that was filed on or after January 1, 2016 if the charge is in investigation or mediation.  Specifically, employees who have filed an EEOC charge can use this new portal to:

  • Provide and update contact information;
  • Upload documents to the charge file;
  • Check the status of his or her charge;
  • Agree to mediation; and
  • Receive charge documents and messages from the EEOC.

NEW LAW: California “Immigrant Worker Protection Act”

On October 5, 2017, California Governor Jerry Brown signed the Immigrant Worker Protection Act (Assembly Bill 450) into law.  This new law, which goes into effect on January 1, 2018, adds a new section to the California Government Code (§7285.1), which prohibits employers from voluntarily agreeing to allow an immigration enforcement agent to enter any nonpublic areas of the workplace – unless otherwise required to under federal law.  The new law does not apply if the immigration enforcement agent provides a judicial warrant.

What exactly does the new law do?

The new law limits an employer’s ability to voluntarily cooperate with immigration enforcement agent (specifically federal immigration authorities – ICE).  Under current federal law, an employer may grant an ICE agent access to non-public portions of the worksite either by requiring a judicial warrant or by voluntarily consenting to access.

The new law removes an employer’s ability of employers to “voluntarily consent” to ICE access.  Instead, employers will have to insist that the ICE agent provide a warrant in order to obtain access to the non-public areas of the workplace.

In addition to the foregoing, the new law also prohibits an employer from granting voluntary access to the employer’s employee records without a subpoena or judicial warrant.  This excludes access to I-9 forms and other documents for which a Notice of Inspection has been provided to the employer.

Finally, the new law imposes new notice requirements on employers when faced with a notice of any inspection of I-9 forms or other employment records:

  1. Employers must provide current employees with a notice of any inspection of these records within 72 hours of receiving notice of the inspection.
  2. Upon reasonable request, an employer must provide an affected employee with a copy of a Notice of Inspection of I-9 forms.
  3. Employers must provide affected employees a copy of the notice that provides the inspection results within 72 hours of receiving it, as well as written notice of the obligations of the employer and the affected employee arising from the results of the inspection.
    • NOTE – this notice must be hand-delivered at the workplace if possible, or by mail and email if hand delivery is not possible.

Take home for employers

The penalties for noncompliance with this new law are fairly steep.

An initial violation of the physical access requirements can amount to between $2,000 and $5,000 for an initial violation and $5,000 to $10,000 for each subsequent violation.   The same penalty levels apply to a violation of the records access requirement and/or the notice requirement.

It is recommended that all California employers review the new law and train their management team and front line staff on the law’s new requirements.

NEW LAW – Missouri Amends Its Human Rights Act

On June 30, 2017, Missouri Governor Eric Greitens signed Senate Bill 43 into law. This bill amends the Missouri Human Rights Act (MHRA) to more closely align this law with federal employment discrimination law standards and makes changes to rights and remedies for claims under Missouri’s discrimination law and claims for whistleblower retaliation.

These changes go into effect on August 28, 2017 and include the following:

  • Change in Standard of Proof to “Motivating Factor”: Plaintiffs must provide that the protected characteristic was the “motivating” factor for the adverse employment action.
  • Damage Caps: Compensatory and punitive damages are capped based on the size of the employer (ranging from $50,000 for employers with 100 or fewer employees to $500,000 for employers with more than 500 employees).
  • No Individual Liability: Managers, supervisors, and colleagues cannot be held personally liable for violations of these laws.
  • Required Summary Judgment: State Courts must use summary judgment to determine whether cases should proceed to trial based on the assembled evidence.
  • Business Judgment Defense: Employers are permitted to use a “business judgment defense” and the judge must provide a business judgment jury instruction for every MHRA case.
  • Limited Whistleblower’s Protection: Whistleblower claims can no longer be brought against the state and its political subdivisions and only certain employees qualify for whistleblower protections.

These changes only affect claims filed in Missouri state court after August 28, 2017.

Could your organization potentially be accused of Employment Discrimination?

Federal law (Title VII) prohibits discrimination based on: race, color, religion, sex (including pregnancy), national origin, mental or physical disability, age, gender, genetic information, and citizenship.

Recently Palantir Technologies in Palo Alto, CA settled a claim of $1.66 million for discrimination against Asian applicants in the hiring and selection process of their engineering positions, even though they employed and hired several Asian candidates. We can take away two lessons from this case:

  1. Take care when using an Employee Referral Program in your recruitment process.
    1. Although your best employees may refer great applicants, they may not refer an adequate flow of diverse applicants. The EEOC found that Palantir’s preference for referrals in the screening process resulted in disproportionate number of non-Asians in the applicant pool (adverse impact).
      • If you use an Employee Referral Program, find ways to assure you are encouraging a diverse applicant pool and test your results.
  2. Look at the numbers.
    1. The hiring ratio for 3 of Palantir’s engineering positions were found to be grossly discriminate.
    2. Check your hiring ratio’s.
  • One way to check your hiring ratio’s is by using the 4/5ths rule (or 80% rule). Although use of this test will not assure that the EEOC will not pursue a claim, it is one tool that they have used to show positive or negative diversity in the hiring process.
  • More recently the EEOC has been using a different hiring test. In the case against Palantir the EEOC compared the company’s hiring rate of Asian candidates to the rate that would likely occur if Palantir simply selected from the qualified candidate pool randomly. In this case, the position of Quality Assurance Engineer Intern Palantir hired 17 non-Asian’s and 4 Asian applicants (19%) from a pool of 130 qualified applicants (73% of the applicants were Asian). The EEOC concluded the likelihood that they would choose an Asian was 1 to 1 Billion.

Additional Information For Employers

New EEOC Lawsuit Reminds Employers To Avoid Discriminatory Practices

A lawsuit recently filed by the EEOC against SLS Hotel South Beach serves as a reminder to all employers that discrimination in employment decisions can lead to an EEOC claim.

The Case:

In this lawsuit, the EEOC has alleged that a group of at least 15 Haitian workers (all of them dishwashers or stewards) were treated differently than Hispanic workers with similar duties by hotel management because of their race, national origin, or skin color before being fired from the hotel in 2014.

Specifically, the EEOC’s complaint alleges that the workers were specifically told by managers, supervisors and chefs not to speak Creole, even to each other, while Hispanic workers were not reprimanded for speaking Spanish at work. The EEOC also claims that managers and chefs called the black Haitian dishwashers disparaging names, including “f—–g Haitians,” and referred to them as “slaves.”

Finally, the EEOC contends that the Black Haitian steward/ dishwashers were unlawfully replaced with light-skinned Hispanics when the company chose to outsource the steward/dishwasher positions without providing the black Haitian employees an opportunity to apply to the staffing agency before their termination. The terminations, per the complaint, were not performance-based

Take Home for Employers

Every organization should ensure that their Human Resources Department investigates all claims brought by employees to ensure there are appropriate checks and balances. Complaints should not just sit on a desk catching dust. There needs to be policies in place that provide set guidelines on how employee complaints are handled. Furthermore, there needs to be follow up with the employee who makes the complaint to ensure they are aware that their complaint is handled and is taken seriously by the company.

The only safeguard for HR is to ensure they practice due diligence when dealing with all complaints and document all necessary information from investigations. Documentation and thorough investigations are key to ensure that discriminatory practices are prevented and deterred in the workplace. Furthermore, employers should not avoid liability by using a staffing agency to discriminate when they cannot lawfully do so on their own.

2016 EEOC Litigation Data Released

The EEOC recently released the national enforcement data for the 2016 fiscal year.  According to this report, the total number of EEOC charges received in 2015 increased from 89,385 received in 2015 to 91,503 received in 2016.

In addition, according to the report, in 2016, the EEOC resolved 97,443 charges and secured more than $482 million for victims of discrimination in private, federal and state and local government workplaces.

Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five.  The total breakdown of charges by type is as follows:

Retaliation
42,018 45.9%
Race  32,309 35.3%
Disability 28,073 30.7%
Sex/Gender 26,934 29.4%
Age 20,857 22.8%
National Origin 9,840 10.8%
Religion 3,825 4.2%
Color 3,102 3.4%
Equal Pay Act 1,075 1.2%
Genetic Information Non-Discrimination Act 238 0.3%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 9,308 4,633 3,244 2,775 2,765 2,000
Florida 7,610 3,530 2,285 2,221 2,332 1,661
California 5,870 2,937 1,905 1,912 1,560 1,517
Georgia 5,273 2,577 2,165 1,462 1,684 1,028
Illinois 5,072 2,327 2,255 1,466 1,325 1,633
Pennsylvania 4,564 1,964 1,228 1,646 1,255 1,198
North Carolina 4,372 2,077 1,705 1,384 1,265 885
New York 3,740 1,604 1,084 1,061 1,202 865
Alabama 3,371 1,211 1,865 647 934 503
Virginia 2,945 1,242 1,069 921 881 583

The full state breakdown of claims is available here.