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Topic: "Discrimination - National origin" | Main

Arizona v United States: SCOTUS to decide preemption of state statute criminalizing unauthorized aliens who work
December 13, 2011 by Ross Runkel at LawMemo

The US Supreme Court has granted certiorari in Arizona v. United States [details, briefs]. The issue of importance in employment law is whether federal law preempts a state statute criminalizing unauthorized aliens who work.

The United States sued the State of Arizona to enjoin enforcement of a state statute that (among other things) makes it a crime

"for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state."

The trial court enjoined enforcement of the statute pending final decision on its constitutionality; the 9th Circuit affirmed.

The United States claims that the state statute is preempted by the Immigration and Nationality Act (INA). The 9th Circuit said it was bound by its prior decision in National Center for Immigrants' Rights v. INS, 913 F2d 1350 (9th Cir 1990), which found that Congress did not intend to deter illegal immigration by incarcerating or fining employees. The court also said that 8 USC 1324a (Immigration Reform and Control Act) sets up a scheme to discourage employment of unauthorized immigrants primarily by penalizing employers. The only federal crimes for workers have to do with fraudulent statements, false or stolen documents, and perjury. Section 1324a also provides "affirmative protections to unauthorized workers, demonstrating that Congress did not intend to permit the criminalization of work." This, said the 9th Circuit, "justifies a preemptive inference that Congress intended to prohibit states from criminalizing work."

The US Supreme Court will review the 9th Circuit decision. Oral arguments will be scheduled for 2012.



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EEOC labor trafficking suits
April 23, 2011 by Ross Runkel at LawMemo

EEOC has filed three suits alleging that defendants subjected foreign workers to severe abuse and discrimination after they were trafficked into this country.

One suit is against labor broker Global Horizons and six farms in Hawai'i.

A second is against Global Horizons and two farms in Washington State.

A third is against marine services company Signal International in Alabama.

The EEOC seeks back pay, compensatory and punitive damages, and injunctive relief.

[Press release]



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Injunction against Arizona law criminalizing unauthorized aliens who work is upheld
April 11, 2011 by Ross Runkel at LawMemo

The 9th Circuit has unanimously upheld a temporary injunction against a recent Arizona statute that imposes criminal penalties against unauthorized aliens who work or apply for work in Arizona.

United States v. Arizona (9th Cir 04/11/2011)

The United States sued the State of Arizona to enjoin enforcement of a state statute that (among other things) makes it a crime "for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state."

The trial court enjoined enforcement of the statute pending final decision on its constitutionality; the 9th Circuit affirmed.

The United States claims that the state statute is preempted by the Immigration and Nationality Act (INA). The 9th Circuit said it was bound by its prior decision in National Center for Immigrants' Rights v. INS, 913 F2d 1350 (9th Cir 1990), which found that Congress did not intend to deter illegal immigration by incarcerating or fining employees. The court also said that 8 USC 1324a (Immigration Reform and Control Act) sets up a scheme to discourage employment of unauthorized immigrants primarily by penalizing employers. The only crimes for workers have to do with fraudulent statements, false or stolen documents, and perjury. Section 1324a also provides "affirmative protections to unauthorized workers, demonstrating that Congress did not intend to permit the criminalization of work." This "justifies a preemptive inference that Congress intended to prohibit states from criminalizing work." (Although the court split 2-1 on other portions of the state statute, the decision on this portion was unanimous.)

[Editor's Note: Another case (Chamber of Commerce of the United States v. Whiting) dealing with preemption of a different Arizona statute is pending in the US Supreme Court. That statute imposes sanctions on employers who hire unauthorized aliens.]



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DOJ settles national origin discrimination suit
February 22, 2010 by Ross Runkel at LawMemo

The Justice Department has announced a settlement agreement with Sunlight Inc, to resolving allegations of a pattern or practice of discrimination in recruitment and hiring on the basis of national origin.

The agreement was reached under the anti-discrimination provision of the Immigration and Nationality Act, which prohibits workplace discrimination on the basis of citizenship status and national origin.

The employer will eliminate preferences for workers of Korean origin, pay $2,000 in lost wages to an applicant who was allegedly denied the opportunity to apply for a job because of her national origin, as well as a $500 civil penalty to the United States.

[Press release]



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$500,000 settles national origin and sex discrimination suits
February 07, 2010 by Ross Runkel at LawMemo

EEOC claimed that a hotel refused to hire non-Chinese banquet servers because of their national origin.

EEOC also claimed that the hotel subjected female employees to a sexually hostile work environment.

The two suits have been settled for $500,000 and a three-year consent decree.

EEOC Press release 02/03/2010:

Landwin Management to Pay $500,000 for National Origin Bias and Sexual Harassment

EEOC Said Hotel Refused to Hire Non-Chinese Banquet Servers and Subjected Women to Verbal Abuse

LOS ANGELES – The U.S. Equal Employment Opportunity Commission (EEOC) today announced the settlement of two lawsuits against Landwin Management, Inc., a San Gabriel, Calif.-based hotel operator, for $500,000 and significant remedial relief in cases alleging national origin discrimination and sexual harassment. Both suits were filed in September 2007 under Title VII of the Civil Rights Act of 1964.

In the first lawsuit (Case No. CV 07-06169 SJO), the EEOC charged that non-Chinese banquet servers were rejected for hire based on their national origin when the San Gabriel Hilton severed its contract and hired Landwin Management to operate the establishment in April 2005. The EEOC said that all the non-Chinese banquet servers who previously worked for the hotel at the time, many of whom were Latino, were not hired back during the turnover and instead replaced with less qualified Chinese workers.

In the second suit (Case No. CV 07-05916 PA), the EEOC alleged that the San Gabriel Hilton subjected female employees to a sexually hostile work environment, including verbal sexual harassment by the housekeeping department supervisor, who referred to the women as “whores” and “prostitutes” in addition to other offensive language. The supervisor also allegedly reprimanded the female employees if they even spoke to men, and Landwin failed to respond to the employees’ complaints of harassment.

In addition to the $500,000 in monetary relief, a three-year consent decree settling the two lawsuits will also ensure that (1) Landwin will implement hiring and recruiting goals for Hispanic employees; (2) Landwin will revise its written policies on discrimination, sexual harassment and recruitment and hiring; (3) employees will receive annual training regarding discrimination, including national origin discrimination and sexual harassment; (4) Landwin will retain an EEO monitor / consultant named by the Commission to assist with recruiting, hiring, training, revision of policies and record-keeping procedures; and (5) the company will provide annual reports to the EEOC regarding its employment practices.

“The days when employers make decisions based on stereotypes and assumptions shaped by the race or national origin of their employees should be far behind us,” said Anna Y. Park, the regional attorney for the EEOC’s Los Angeles District Office. “Further, sexual harassment should no longer be tolerated in any workplace, and employers should never condone or overlook the mistreatment of vulnerable victims, such as monolingual Spanish-speaking women.”

EEOC Los Angeles District Director Olophius Perry added, “Employers must take appropriate corrective action when they receive harassment complaints. We hope that other employers take the lead of the San Gabriel Hilton and take proactive action to ensure EEO compliance. Businesses should take advantage of EEOC trainings that are available to encourage compliance and proactive prevention.”

The EEOC Training Institute provides a wide variety of training to assist employers in educating their managers and employees on the laws enforced by EEOC and how to prevent and correct discrimination in the workplace. More information is available at http://www.eeoc.gov/field/washington/training.cfm.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.




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"Hispanic" is national origin discrimination under Title VII
July 20, 2007 by Ross Runkel at LawMemo

Francisco Salas sued his former employer, asserting (among other things) a Title VII national origin discrimination claim.

Salas alleged that he was subjected to national origin discrimination based upon his status as a Hispanic.

A primary issue on appeal was whether this allegation was sufficient to support a claim of national origin discrimination. Noting that there is confusion among the federal courts about what constitutes national origin (versus race) discrimination under Title VII, the 7th Circuit held that it was.

Salas v. Wisconsin Dept of Corrections (7th Cir 07/18/2007)

In Espinoza v. Farah Manufacturing Co., 414 US 86 (1973), the United States Supreme Court recognized that national origin "refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." The Equal Employment Opportunity Commission (EEOC) defines national origin discrimination to include the denial of employment opportunities because of an individual's (or his ancestor's) place of origin "or because an individual has the physical, cultural, or linguistic characteristics of a national origin group." 29 CFR Section 1606.1.

The 7th Circuit concluded that "[a]lthough the EEOC does not define the term 'national origin group,' Hispanics would qualify as such a group."

Ultimately, however, the court affirmed summary judgment in favor of the employer on other grounds.



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$2.8 million settlement
January 25, 2007 by Ross Runkel at LawMemo

78 Latino employees sued Quietflex Manufacturing Company claiming discrimination against them based on their national origin in its transfer and compensation policies.

The employees were represented by the Mexican American Legal Defense And Educational Fund, Inc. (MALDEF). The EEOC intervened in the suit.

In a settlement announced January 23, the company's insurer will pay out $2.8 million and the company will "implement policies and practices to advance equal employment opportunity."

EEOC Press release.



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