The Human Resource
The Human Resource brings in industry professionals to talk about current HR issues as well as chatting about important HR topics.
The Human Resource
National Origin Discrimination
Who would have thought we would be talking about national origin discrimination against Americans? It's a real occurrence. and In this episode, Pandy shares the new EEOC updates of educational materials and landing page dedicated to national origin discrimination here in the US. Learn what not to do, and how some companies are circulating in the news for their mistakes.
Have I got a treat for you? It's the end of the year, and I thought it was only appropriate that you see the team that makes this show happen. Now, you're the most important person, the audience, but you gotta understand, this show would not be possible with the gentlemen that are sitting here with me today.
Speaker 2:Will Matthews. That's me.
Speaker 1:Yeah, who are you?
Speaker 2:Uh I'm the uh I'm a senior multimedia specialist here at ICRC TV.
Speaker 1:And the man who keeps me calm.
Speaker:I'm uh Dean Lowry. I'm a video production manager at ICRC. Uh and yeah, thanks, Pandy, for putting on a wonderful show all these years. Uh definitely want to say thanks to the viewers and the listeners for listening and watching.
Speaker 2:Ditto what uh Dean said, um, we really do appreciate the people that watch um and make this show special. Obviously, Pandy is the driving force here, and um, we're just happy to support her in any way that she needs. But uh yeah, we're very thankful for the people that watch this show.
Speaker 1:Well, the important thing is that we wanted to take the opportunity to share our gratitude with each and every one of you. Again, the show would not be possible if it were not for each of you. And together the three of us are just gonna do our very best to keep the show getting better and better every year. It's amazing what we've got planned for the next year, and we really hope that you'll stick with this. So, one, two, three. You know, it's kind of silly, but this is where we are at. Where over a year ago we were talking about um diversity, inclusion, I mean, diversity, equity, and inclusion. Um, and that was the big focus. Now, the EU of C has actually put out language and guidance on anti-American national origin discrimination. And it's it's it's absolutely, again, we've always said change is inevitable. It is the only constant in the universe. But the press releases that were just put out for educational materials on national origin discrimination, as well as a landing page. So the EUC is taking this so seriously that they're literally sending you all these resources or providing all these resources for you, as well as a technical assistance document called discrimination against American workers is against the law. And I again, I've been in this for over 40 years. I would have never thought that this would even be a thing. But I certainly have been proven wrong on this one. And if we really have to back up, what does this mean? The EUC enforces the federal prohibition against national origin discrimination and employment under Title VII of the Civil Rights Act. We all know that, and that's applied to employers of 15 or more employees. But when we're talking about discriminating against American workers, we we begin to start thinking about wow, are we really, are there companies really out there doing this? National origin discrimination means treating someone less favorably or more favorably because they come from a particular place, because of their ethnicity or accent, because it's believed that he or she has a particular ethnic background. It also means treating someone less favorably at work because of marriage or other association with someone of a particular nationality. And again, when we think about picking on ourselves as Americans, this really has a major issue that we really think we need to kind of stop and slow down on this. This this actually came from a question that a gentleman brought to me, and he said, you know, I'm looking for an individual to take a leadership role with our company, and we have individuals who don't speak English. Is it possible for me to just not interview them? Do I have to consider them as valid employees because of their lack of understanding English? And it's a manufacturing area, it's a production area, there's a warehouse, there's a lot of safety issues involved in this. So I pull everything back. Remember, I'm always going to be bringing you up to the regs. And on this particular answer, I explained to him an employee, or excuse me, an employer may not base a decision on the employee's foreign accent unless the accent materially interferes with the job performance. Now, again, this is straight from the EEOC. A fluency requirement is only permissible if required for the effective performance of the position for which it is imposed. So whether they understand English or whether they speak fluid English really needs to be weighed against the needs of the business. And what will this individual be doing in this role? English-only rules must be adopted for non-discriminatory reasons. An English-only rule may be used if it is needed to promote the safety or the efficiency of the operation for the employer's business. So a number of you have made decisions, I know you have, on the an individual's ability to speak English. But did you realize that at that time you may have been violating the national origin portion of discrimination? When we start looking at at just how we approach the foreign workers that we have in the workplace, I I really want you to be very concerned or very focused on why you're attracted to these particular individuals. And one of the things that the EEOC has identified as common business reasons that do not justify national origin discrimination is a customer or a client preference. And we've talked about this in previous shows, where you can't take an individual like an African American and say, okay, you're only going to take care of our African American population, or an Asian and say, you'll be able to relate better with the Asian customers. So those are the only ones you're allowed to work with. That is a sense of a sense of discrimination in itself, all by itself, right there. Even if the customer is asking for it, or if you believe the customer wants it, how about lower cost of labor? And in the language here, it says whether due to under-the-table payment or abuse of certain visa holding wage requirement rules. You have to be very careful if you're going out of the country on an EOR, an employee of record, to avoid paying the higher rates here in the United States. There are very, very strict legal guidelines around that. And you never want to do that without an attorney. You have to work with legal counsel on that. And then what about beliefs that workers from one or more national origin group are more productive or possess a better work ethic than another national origin group? Believe it or not, the EEOC is in the midst of a suit right now with United Pride Dairy. And that's exactly what they did. They alleged or alleged have done, um looked at individuals from Mexico. And when they attract, you know, brought them over and and showed them the jobs and promised all these um managerial responsibilities and uh special positions, that was great. That was a promise. But when they actually brought them over, they literally put them in labor-oriented positions and made the comment that they were they were having to do labor because Americans were lazy and they needed the Mexicans to, you know, do the harder work. And why would anyone think that that is not a sign of discrimination? Why would anyone look at that and say that's okay? There's another claim against um the United Pride theory as well for sexual harassment. But the point I'm trying to make here is they looked at this individual uh or this individual group and said, Oh yeah, we want them because they, boy, they're they're just they got a work ethic that the Americans don't have. And ladies and gentlemen, that's the kind of stuff that's gonna get you in trouble. I mean, big trouble. Seward and Son has been, uh it's a group uh Mississippi, it's a farming group, another agricultural group, but they are going to be required to pay $150,000 in a race and national origin discrimination case. And when you actually look at some of this information of what they were actually doing, they took a number of black farm workers of American national origin. Okay, so our our African-American worker who was already on the job and they moved them out of the positions to put immigrant agricultural workers from a foreign country in. And only because they had they gave them more hours, they were much easier to pay, they took a much less uh amount, apparently. I mean, this is this is just absolutely nuts. I I caution all of you, when you're looking at this whole topic of national origin discrimination, be cognizant that they're going to be looking at your job advertisements. Make sure that there's no evidence of discriminatory job ads that include ads that say the employer perversal requires applicants from a particular country or with a particular visa. Make sure that there's no disparate treatment. Evidence of uh related to firing can include a company terminating American workers who are on the bench between job assignments at a much higher rate than the employees that they're bringing in from foreign workers, or even related to hiring that includes an employer making it more difficult for applicants from one national origin to apply for positions. You how about harassment? Just the mere fact that you may be, as this company, making comments, derogatory comments about American workers, uh, regarding, you know, how their work ethic or or um how much money they want. You're overpaid. And then, of course, the last reason is retaliation. You absolutely cannot retaliate on somebody who's engaged in uh work to bring in somebody else or in anyone who's complaining that they feel that they have been discriminated against or they're being harassed because of their national origin. Remember, I said favorably or unfavorably. You have to be very cautious. And the EEOC is very serious about this. They even have a poster that you can uh put up. Discrimination against American workers is against the law. This is all, of course, it's not poster size here, but all of this is available on the EEOC website. It's not required as of right now, but you've got to understand this is a topic that I never thought we'd be discussing. I never thought uh in my wildest dreams that we were going to be looking at reverse discrimination cases, which we've already discussed on the show, and now national origin. It's real. It's real. So look at your hiring practices, make sure that the individuals posting those jobs are posting them in a compliant manner and that you're interviewing and employing all individuals fairly, that all of your employment decisions are done in a way that treats everyone equally. And if you have any concerns at all, please slow down. Either call your labor law attorney or a very, very experienced consent. And I mean 15 years or more, somebody who's been around the block. Or you can just call us right here. Because we love your questions. We love your questions. Hope to see you again right here at the human resource.