In this day and age, it is more important than ever to be well aware of your rights in any given situation, but especially in dealing with your boss or prospective employer. While most employers will comply with antidiscrimination laws, there are some who will either openly or subtly defy them—most often with employees or applicants of foreign ethnicity. While discrimination is still very common against African-Americans in some fields, sometimes ethnic discrimination is given short shrift when it should be highlighted just as much. Contrary to popular misconceptions, if you believe you have been discriminated against on the basis of national origin, you do have the right to bring suit.
The Information Reform & Control Act
Most of the jurisprudence surrounding national origin discrimination and prohibiting it comes from the period around which the Immigration Reform and Control Act (IRCA) was passed. This law was signed in 1986, and it was one of the first to establish guidance for both employees and employers regarding the hiring of undocumented immigrants. The act is meant to be construed alongside the general nondiscrimination provisions in Title VII of the Civil Rights Act and the guidance established by the Equal Employment Opportunity Commission (EEOC).
IRCA established penalties for knowingly hiring the undocumented, but it also codified the proposition that an employer may not discriminate solely on the basis of national origin or ethnicity, meaning that one may not be turned away solely due to their foreign national origin. In other words, if you are undocumented and you are hired without your employer knowing, you have all the rights of any ordinary employee. If you are hired despite your employer knowing you are undocumented, that may be a somewhat precarious position for you, as an employer may face fines and other discipline if they are found out.
Rare Exceptions to Anti-Discrimination Rules
The IRCA does, despite its wide provisions, set out certain exceptions to the antidiscrimination rules that are still generally valid today. Perhaps the most commonly seen is the need of some employers to hire those who speak English fluently or who speak it without any kind of accent. If an employer is able to show that this kind of rule (which is, on its face, discriminatory) is necessary to the success of their business, this is what is referred to as a bona fide occupational qualification (BFOQ). Most BFOQs are permitted to stand if the employer can prove that the exclusion is not merely malicious or preferential.
Generally, any exception to an anti-discrimination provision must be shown to have a legitimate business-related need, and the threat of losing customers or business is not sufficient. If a company has clients who dislike working with nonwhite employees, for example, the employer may not fire all their nonwhite employees and allege its necessity. In such an incidence, the onus is on the customer to change or patronize another store. However, if a company has clients who do not speak any language besides English, it may be a legitimate business need to ensure all employees speak English, so they can communicate with customers.
Seek Experienced Assistance
It is entirely understandable to be on one’s guard in this day and age. Ensuring that you know and understand your rights in every situation can go a long way toward making you feel safer. Asking an attorney can help clarify matters. The dedicated Charleston employment law discrimination attorneys at Hitchcock & Potts are happy to assist you however possible.
Contact us today to set up an initial appointment.