It’s a Small World, Afterall–Or maybe it’s just Norway.

Title VII prohibits discrimination in employment based on certain protected characteristics, such as race, religion, and national origin.  On the broadest level, this means that an employer cannot refuse to hire an applicant based solely on his or her national origin.  The EEOC has seen a steady rise in national-origin claims since September 11.  A recent decision from the Court of Appeals for the Eleventh Circuit is an unusual example of a Title VII claim. image

Anesh Gupta, an Asian male, was a college intern working at the Epcot Center in Disney World.  As part of his internship, Gupta became a server during the breakfast shift at the Norwegian restaurant.  When he was hired, breakfast was considered an “American” meal.  Later, the schedule was changed and the Norwegian breakfast was served all day.  Gupta was terminated for being “culturally unauthentic.”

Some employees, including servers at the Norway Pavilion were required to be “cultural representatives,” interacting with guests and explaining the country’s history, culture, and traditions.  The employees’ were required to speak the language and possess an adequate command of English in order to communicate with visitors to the theme park.  

The court found that Gupta was not qualified to be a server at the Norwegian restaurant under the Disney World guidelines.  Servers were required to be culturally authentic to Norway and Gupta admitted that he had visited Norway only once for one or two days and that he did not have first-hand knowledge of Norwegian culture.  Further, it was not Gupta’s Asian ancestry that disqualified him from working at the restaurant.  Disney presented evidence of other Asian individuals who had been qualified to serve as cultural representatives in the Norway Pavilion. 

DOJ: How to Prevent Discrimination Arising from the Use of E-Verify

From the U.S. Department of Justice (DOJ), comes a new published Guidance relating to the use of E-Verify.  The recent, though short-lived excitement over the use of E-Verify for employment verification has now quieted down. Private-sector employees are back to the voluntary use of the system as a method for confirming that newly hired employees are authorized to work in the country.   DOJ

One of the concerns that was raised with the E-Verify program was its potential effect on discrimination in the workplace.  If, as a result of using E-Verify, an employer receives a no-match letter or a “tentative” no-match letter, he cannot terminate the employee without first trying to resolve the mismatch.  Failure to work with the employee to determine the cause of the mismatch could result in a claim for national-origin discrimination.

Anticipating the likelihood that employers would not want to engage in the additional steps of “working with the employee,” the DOJ issued guidelines outlining the step that an employer must take upon receiving information about a potential mismatch.  (See Antidiscrimination Guidance Concerning the DHS No-Match Rule).

See alsoE-Verify Employer Dos & Don’ts

Don’t Get Burned By an English-Only Rule

A trip to the Tri-State area is not complete without trying a cheesesteak. While a great cheesesteak can be found at dozens of places in Delaware, South Philadelphia is, and always will be, the place to go for those needing a fix of this world-famous culinary delight.

One of the most popular eateries has been involved in a sizzling hot dispute over whether it could require its customers to order in English. Geno’s Steaks received national attention when it put up a sign reading,

“This is America. When ordering please speak English.”

The Philadelphia Commission on Human Relations promptly filed a discrimination complaint against the shop. But yesterday, it ruled that there was “insufficient evidence” to pursue the case.

While it may be okay for a steak shop to require orders in English, Delaware employers should move much slower in requiring their employees to speak only English in the workplace.

The EEOC has been very aggressive in challenging such rules and has achieved large settlement awards from employers who could not justify that such rules were absolutely necessary.

• In 2001, a Texas university agreed to pay $2.4 million to settle claims that the EEOC filed on behalf of 18 Hispanic housekeepers who were allegedly ordered to speak only English on the job ― even during breaks ― although some didn’t speak English.

• In 2003, a Colorado casino paid $1.5 million to settle a national origin discrimination suit that the agency filed on behalf of a class of Hispanic employees claiming verbal harassment and the improper application of English- only rules.

• In 2006, a New York hospital paid $200,000 to settle a national origin discrimination suit that the agency filed for a class of Hispanic housekeeping employees who were subjected to English-only rules without any business justification. One manager reportedly told the employees, “This is America. Speak English.”
Under the EEOC’s guidelines, “An English- only rule may be used if it is needed to promote the safe or efficient operation of the employer’s business.”

The EEOC’s compliance manual suggests the following examples of situations in which business necessity would justify an English-only rule:

• for communications with customers, coworkers, and supervisors who speak English but not the employee’s native language;

• during emergencies or other situations in which workers must speak a common language for safety reasons;

• on cooperative work assignments that need a common language for efficiency and productivity; and

• when a supervisor who speaks English but not the employee’s native language needs to monitor the individual’s performance if his job duties require communication with coworkers or customers