Tag Archives: Civil Rights Act

“Hire American” Doesn’t Justify Employing Only Citizens

As an employer, you have to verify the work eligibility of every employee, and that frustrating process might make you consider hiring only U.S. citizens. Please reconsider.

The form for verification, the I-9 form, is confusing and some of the documents you are presented may not look familiar to you—permanent residence cards, foreign passports, employment authorization documents, tribal documents. So, you may find completion of the required I-9 form stressful, especially since you have to swear under oath on the I-9 itself that the documents the employee presented and you examined appear to be genuine and the person is authorized to work in the U.S. to the best of your knowledge.

It is tempting to consider just making a blanket rule that you will only hire U.S. citizens. Then, you would only need to look at a driver’s license and social security card. Additionally, President Trump signed an executive order last year requiring “Buy American, Hire American” (notwithstanding the fact that he uses foreign guest workers as servers, housekeepers and cooks at his properties like Mar-A-Lago). So, wouldn’t you just be doing your patriotic duty by hiring only American-born workers at your company?

No.

There are both longstanding legal and historical reasons that “Hire American” should only be treated as a slogan and not an employment policy.

The same Immigration Reform and Control Act (“IRCA”) that introduced the I-9 form to American employers in 1986 also codified that employers with four or more employees are prohibited from discriminating on the basis of citizenship status, which occurs when adverse employment decisions are made based upon an individual’s real or perceived citizenship in the U.S. (or lack of citizenship) or an applicant’s legal immigration status.

The IRCA antidiscrimination provisions also prohibit small employers (e.g., those with four to fourteen employees) from committing national origin discrimination against any U.S. citizen or individual with employment authorization. Employers with 15 or more workers were already prohibited from considering national origin in employment decisions by Title VII of the Civil Rights Act of 1964. Any employer who only hires applicants born in the United States discriminates against all other national origins.

Therefore, any employer who takes into account an applicant’s country of birth or citizenship status when making hiring decisions violates federal law. Your only interest in someone’s citizenship or immigration status should be finding out within the first three days of work whether your new employee is eligible to work in the United States, no matter where that employee is from or whether he or she is a visa-holder, born elsewhere but now a green-card holder, or a citizen, naturalized or native-born.

But it isn’t only for legal reasons that you should never discriminate against legal immigrants in your workplace. Hiring legal immigrants also strengthens our democracy.

It is  important to understand the historical context of denying a legal immigrant the chance to work in America, which is supposed to be the Land of Opportunity. Our history is full of times when we excluded groups of immigrants in ways that now seems nonsensical.

For example, in the 1840’s and 1850’s, Irish immigrants fleeing a deathly famine and British oppression arrived on the East Coast in “coffin ships” (so called because almost 25% of the passengers who started the journey died during the passage). All of the lucky ones who survived to reach the United States were hungry, many were unskilled (often farmers who were initially unsuited to work in urban areas), and almost every one of them was Catholic. This was at a time when some Protestant conspiracy theorists fanned the flames of fear that the pope and his army would land in the United States, overthrow the government, establish a new Vatican in Cincinnati (of all places), and impose the Catholic canon as the law of the land.

(Forgive me if you already know all of this, but it appears to me that, 170 years later, the mistakes of our history are being forgotten and, therefore, will be inevitably repeated).

In cities like Boston, it was hard to assimilate such large numbers of immigrants and some employers decided it was easier just to exclude Irish workers from employment completely. “No Irish Need Apply” was a sign common in Boston storefronts at that time.

National origin and religious prejudice ran high across the country, and bigoted groups formed, such as the Know-Nothing party who believed that Protestantism defined American values and Irish Catholics had no place in America (regardless of the First Amendment’s protection of freedom of religion).

Fortunately, America also had its better angels. Abraham Lincoln was among the many Americans disturbed at the rise of this bigotry, as he explained in an 1855 letter to a friend: Continue reading “Hire American” Doesn’t Justify Employing Only Citizens

Transgender Woman Protected From Sex Discrimination, Court Decides

The U.S. Sixth Circuit Court of Appeals ruled last month that Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against a transgender woman “on the basis of sex” and also ruled that the supervisor’s belief that gender transition “violates God’s commands” is not a defense to employment discrimination.

The Sixth Circuit, which decides federal cases brought in Kentucky, Tennessee, Michigan and Ohio, reviewed the firing of Aimee Stephens from her job at a funeral home in which she had originally worked as a male in the case of EEOC v. R.G & G.R. Harris Funeral Homes (U.S. 2018)

After she was diagnosed with gender identity disorder, Stephens told her boss, Thomas Rost, that she was planning to transition to female. Her boss fired her. Rost stated during the lawsuit that he terminated Stephens’s employment because “he was no longer going to represent himself as a man” and that a person’s sex is “an immutable God-given fit”.

The Sixth Circuit decided, like the Second and Seventh Circuits (covering New York, Vermont, Connecticut and Illinois, Indiana and Wisconsin, respectively) before it, that a company violates an employee’s civil rights if the employer fires that worker on the basis of sex, including sexual orientation and gender identity.

The funeral home where Stephens worked hoped that its termination of her would be protected by the Religious Freedom Restoration Act and the U.S. Supreme Court’s case of Burwell v. Hobby Lobby (U.S. 2014).

However, almost three decades ago. the U.S. Supreme Court had already rejected the argument that a supervisor’s religious squeamishness was sufficient to overcome the civil rights laws. The United States Supreme Court ruled in Employment Division v. Smith (U.S. 1990) that a person may not defy neutral laws of general applicability even as an expression of religious belief. “To permit this,” wrote conservative Justice Antonin Scalia, “would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Despite this long-standing Supreme Court precedent, the funeral home argued that the presence of a transgender employee would require Rost to leave his job, because forcing him to work with a transgender person was an infringement of his religious rights and also would “often create distractions for the deceased’s loved ones”. Continue reading Transgender Woman Protected From Sex Discrimination, Court Decides

Preventing Racism and Incivility in Your Workplace

As a business owner or manager, you have the opportunity and the responsibility to combat racism and hatred in your workplace. Despite the bitterness of current political discourse and the appalling display of racism in Charlottesville, Virginia last weekend, or maybe because of it, everyone deserves to be able to go to work and feel accepted, valued and safe.

From a legal perspective, the Civil Rights Act of 1964 and the discrimination statutes of every state prohibit racism. Racist expressions in the workplace can lead to discrimination cases that are costly, both in terms of money and company goodwill. For example, a Dallas milling company settled with the EEOC in 2012 for $500,000 after 14 African-American employees alleged that their supervisors did nothing when the complainants faced racist graffiti and slurs by co-workers, including “KKK”, swastikas, Confederate flags, and “die, n—-r, die” as well as nooses displayed in the workplace.

This kind of discrimination can hijack the future of a company. Why would anybody with a conscience choose to work there ever again? Or do business with such a company once these actions were known? No amount of wise counsel from an employment lawyer like me can really defend, much less restore a company’s prosperity after these sorts of egregious actions are allowed to occur.

Employers trying to avoid discrimination lawsuits and to build a culture of decency can put into place anti-discrimination policies and training, can immediately investigate and take remedial action when racism is suspected or discovered, and can make advancement and better pay at the company dependent on an employee’s or manager’s embracing of equality.

But perhaps the most important way you can prevent discrimination at your company is by setting an example of what you expect from your employees. You are the yardstick by which your company is measured.

Christine Porath, a leading authority on decency in the workplace, says in her book that 25% of employees acknowledge that they acted uncivilly in the workplace because they saw their bosses acting that way.  As the boss, you need to have zero tolerance for incivility because it is like a gateway drug—incivility often becomes prejudice, harassment and discrimination. Getting away with one often leads to the others.

As a business owner or supervisor, you set the tone for your employees. Your words and actions determine if the workplace is respectful or hostile. You must tell your workers that bigotry is unacceptable and that you have a zero tolerance for stereotyping, name-calling, racial slurs, bullying and other abusive behaviors.

But more importantly, you personally must show your employees, not only by avoiding participating in these kinds of abuses, but also by making a special effort to “be the behavior you want to see” in your employees—respectful of all people, patient, empathetic, humble, transparent, honest and self-controlled.

Ending racism in the workplace is not just your legal responsibility—it is a moral one. Continue reading Preventing Racism and Incivility in Your Workplace