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 (10 th 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 job- related 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 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 work- related 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 (10 th Cir. 2006).

Cultural Awareness Distinguished From National Origin In Gupta v. Walt Disney World Co., 256 Fed.Appx. 279 (11 th 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.