Liability for National Origin Discrimination

Equal Rights Businesses and organizations that want to avoid liability for discriminating on the basis of national origin should take note of a recent settlement that the City of Chicago reached with the Justice Department. The city has agreed to pay $3.1 million to settle a class action lawsuit based on residency requirements that allegedly discriminated against foreign-born job applicants. The settlement was announced immediately after the Justice Department filed the lawsuit on behalf of two men whose applications to the Chicago Police Department were rejected because they had not lived in the United States for at least 10 years.

One of the named plaintiffs was born in India and the other was a native of Belize. They both passed the police department’s written examination but were rejected as police officers because of the police department’s residency rule. The two plaintiffs were representatives of a class that includes 47 applicants who were rejected for employment because they were born and lived in a foreign country before earning the legal right to live and work in the United States.

The lawsuit alleged that the police department had “pursued policies and practices that discriminate against individuals born outside the United States because of their national origin.” The suit also charged that Chicago’s residency requirement had a significant adverse impact on candidates born outside the country. More than 92% of the job candidates who were disqualified by the residency requirement were foreign-born.

National Origin Discrimination

The Equal Employment Opportunities Commission defines national origin discrimination as “treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).” Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of national origin when they hire, fire, set wages, impose discipline, or make other decisions that affect the terms or conditions of employment.

Another law, the Immigration Reform and Control Act of 1986 (IRCA), prohibits most employers from refusing to hire immigrants who have the legal right to work if that decision is based on citizenship or immigration status. While employers have an obligation to demand proof from all job applicants that they have the right to work in the United States, they cannot ask for more proof than the law requires. The job applicant is entitled to choose which document to exhibit to establish work eligibility and, if the document is on the list of approved documents and appears to be authentic, the employer cannot ask the applicant to supply additional proof of citizenship or the right to work.

Employers are at risk of being sued for national origin discrimination whenever they treat someone who was born in another country less favorably than other employees or job applicants. Employers may also be sued if they take ancestry into account when making decisions about employees or job applicants. An accent or lack of fluency in English can be considered in making employment decisions only if they would prevent the employee from performing the job successfully.

Avoiding Liability

To avoid being accused of national origin discrimination, businesses should take care to implement hiring policies that do not disproportionately disqualify foreign-born applicants. Job qualifications that might relate to national origin should be essential to the job. For example, “the applicant must speak English clearly and fluently” might be appropriate for a clerk who has substantial contact with the public, but inappropriate for a machine operator whose job does not require the precise use of language.

The Chicago Police Department claimed that its “continuous residency requirement” was established to ensure that it could conduct background checks on applicants for police employment. Why police officials believed they would be unable to obtain criminal histories and similar information from foreign countries is unclear. The Justice Department took the position that Chicago failed to demonstrate that the residency requirement was necessary.

Justifying job qualifications that might have an impact on foreign-born applicants (or on American citizens who speak with an accent) is an essential safeguard against liability. One lesson to be learned from Chicago’s experience is that “you haven’t been in the country long enough” may not be a good reason to avoid hiring job applicants. Another is that employers should ask an employment lawyer to review job qualifications before implementing them to assure that the qualifications are non-discriminatory.

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