Employment Law Committee
A Continuing Concern
National Origin
Discrimination Post-9/11
by Steven F. Stanaszak
The repercussions have been felt across the
United States and around the globe.
From the creation of the U.S. Department
of Homeland Security and the Homeland
Security Advisory System to the U.S.-led
military actions in Afghanistan and Iraq,
the challenges facing policymakers, employers, families and individuals in the wake
of September 11 have been numerous and
seemingly never-ending. Indeed, in the past
three years, it has been a rare event when the
focus of both print and electronic media is
not on terrorism and its effects, real or perceived, on a particular segment of American culture.
The more visible effects of September
11 are now commonplace. Reports of any
unusual event, from power outages to abandoned packages, begin with a determination of whether terrorism can be ruled out
as the reason for the occurrence. Increased
security at airports, sporting events and
national attractions is a daily reminder of life
in a society where “heightened awareness” is
the norm. In July 2004, as the first presiden-
tial elections since September 11 drew near,
the U.S. Department of Homeland Security
warned that Al Qaeda was moving forward
with plans to disrupt the democratic process.
Thereafter, the national campaigns focused
on proving why their respective candidate
was more suitable to lead America through
this new challenge. To say that the threat
of terrorism has become imbedded in our
present way of life is an understatement.
After September 11, many feared that
Muslims or people of Middle Eastern descent
would face discrimination and harassment
based on religion and/or national origin,
including in the workplace. Community
leaders immediately attempted to quell fears
by urging understanding and compassion.
Days after the attacks, Cari M. Dominguez,
Chair of the U.S. Equal Employment Opportunity Commission (EEOC) called on all
employers and employees across the country to promote tolerance and stressed that
Americans “should not allow our anger at
the terrorists responsible for this week’s
heinous attacks to be misdirected against
innocent individuals because of their religion, ethnicity, or country of origin.” More
than three years after the horrendous events
of September 11, preventing workplace
discrimination based on national origin
remains a priority for the EEOC and a topic
of concern for employers.
Steven F. Stanaszak is an associate in the Milwaukee office of Whyte Hirschboeck
Dudek S.C., where he concentrates his practice in labor and employment, and civil litigation. His practice experience includes representing companies and individuals in
business disputes, employment matters, product liability, and toxic tort claims. Mr.
Stanaszak is a member of DRI and its Employment Law and Trucking Law Committees.
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© 2005 DRI. All rights reserved.
Title VII and National
Origin Discrimination
Title VII of the Civil Rights Act of 1964 (Title
VII), as amended by the Civil Rights Act of
1991, protects workers from discriminatory
employment practices based on an employee’s race, color, religion, sex, national origin,
opposition to practices made unlawful by
Title VII or participation in Title VII proceedings. Title VII applies to employers with
at least 15 employees and creates a private
right of action against covered employers
who engage in unlawful employment practices. In addition, the EEOC has the ability to initiate a lawsuit against an employer
engaged in unlawful employment practices.
The unlawful practices, which can be proven
under disparate impact, disparate treatment
and hostile work environment theories, can
include claims of discrimination based not
only on an individual’s national origin, but
also on an individual’s association with people of a different national origin.
The procedure for filing a Title VII discrimination charge, including charges alleging discrimination based on national origin,
is well-defined. Such a charge must be filed
with the EEOC within 180 days after the
alleged unlawful employment practice. After
the charge has been filed, the EEOC investigates and determines whether probable
cause exists to believe that the employment
practice violates Title VII. If the EEOC’s
investigation does not find probable cause,
and conciliation efforts fail, pursuant to
42 U.S.C. §2000e-5(f) the employee will
be issued a “right to sue” letter that allows
the employee to initiate a lawsuit in federal
court within 90 days. In addition to individual suits brought either by the aggrieved
employee directly, or by the EEOC on her
behalf, aggrieved individuals may also bring
suit as a member of a particular class in
appropriate situations.
An aggrieved employee who prevails with
a Title VII national origin claim is potentially entitled to a wide array of significant
relief. The successful employee may be entitled to back pay, future benefits and wages,
compensatory damages, attorneys’ fees and,
if necessary, injunctive relief. In addition,
the prevailing employee also may be entitled
to punitive damages. Both compensatory
and punitive damages are statutorily capped
under Title VII based on the size of the
employer. Under 42 U.S.C. §1981a(b)(3), the
For The Defense
Employment Law Committee
award caps range from $50,000 for employers with 15 to 100 employees to as much as
$300,000 for employers with 501 or more
employees. It is noteworthy that an award
of punitive damages can only be obtained
if the employee can demonstrate that the
employer engaged in a discriminatory practice with malice or with reckless indifference to the employee’s federally protected
rights. David v. Caterpillar, Inc., 324 F.3d 851,
865 (7th Cir. 2003). The statutory cap does
not include amounts for attorney’s fees, back
pay and interest on back pay.
Title VII does not define “national origin.”
In Espinoza v. Farah Manufacturing Co., 414
U.S. 86, 88 (1973), the United States Supreme
Court defined “national origin” in the Title
VII context as the country where a person is
born or, more broadly, where his ancestors
came from. The EEOC defines “national origin discrimination” more expansively in 29
C.F.R. §1606.1 as “including, but not limited
to, the denial of equal employment opportunity because of an individual’s, or his or her
ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic
characteristics of a national origin group.”
In December 2002, the EEOC issued
Directives Transmittal 915.003 relating to
the investigation of claims alleging national
origin discrimination. In the Transmittal,
which sought to clarify how to investigate
and analyze national origin claims in the
wake of September 11, the EEOC defined
national origin discrimination in laymen’s
terms as “treating someone less favorably
because that individual (or his or her ancestors) is from a certain place that belongs to
a particular national origin group.” Nevertheless, the EEOC clearly anticipates application that is more expansive. In 29 C.F.R.
§1606.1, the EEOC explains that the denial
of equal employment opportunity based on
other factors, such as marriage or association with a particular national origin group,
membership in organizations promoting
the interests of a particular national origin
group or because one’s name is associated
with a national origin group, is potentially
actionable under Title VII.
The Statistics Related to
National Origin Discrimination
and the EEOC’s Post-9/11
Efforts to Minimize Backlash
Is national origin discrimination still a
March 2005
concern three years after September 11?
According to the EEOC, the answer is “yes.”
A review of EEOC’s fiscal reports shows that
charges alleging national origin discrimination represented 8 percent of all charges
received in 1995. Although this percentage
increased somewhat in subsequent years, in
2002 it spiked at 10.7 percent of all charges
filed. This ratio held steady in 2003, representing 10.4 percent of all charges filed. Not
surprisingly, the total number of charges
alleging national origin discrimination rose
as well. In 1995, 7,035 charges were filed
alleging national origin discrimination. The
number of national origin discrimination
charges peaked at 9,046 in 2002. In 2003, the
total number of charges alleging national
origin discrimination reached 8,450.
According to the EEOC, these statistics
represent a significant increase in national
origin charges. It is noteworthy that this
increase occurred despite the fact that the
EEOC and similar local agencies immediately launched well-publicized campaigns
to educate Americans on national origin
discrimination after September 11. As of
late 2004, the efforts of the EEOC in dealing
with this issue were commendable. Between
September 11, 2001 and October 2004, the
EEOC had, according to its press release
dated October 1, 2004, taken significant
steps to reduce the backlash in the Middle
Eastern and Muslim communities. As of the
date of the press release the EEOC had:
• Established a new tracking code in EEOC’s
national charge database to closely monitor September 11 backlash filings;
• Processed and resolved more than 900
charges of discrimination, litigated 15
cases and obtained a total of approximately $3.2 million dollars for aggrieved
individuals;
• Coordinated with sister agencies at the
Departments of Justice and Labor to
issue a joint statement calling on employers to promote tolerance and guard
against discrimination;
• Conducted a national media campaign
through press releases and interviews
that resulted in dozens of stories in media
outlets nationwide, including the New
York Times, Washington Post, USA Today,
Business Week, CBS News Radio and
MSNBC; and
• Formed or reinvigorated partnerships
with Arab and Muslim advocacy groups
such as the American-Arab Anti-Discrimination Committee.
In addition, the EEOC issued fact sheets,
brochures and other materials in both English and Arabic explaining anti-discrimination laws and how those laws applied to
national origin discrimination. The EEOC
staff also gave numerous presentations
to employers, business groups and other
community groups as a part of the educational process.
A Continuing Concern for the EEOC
and Employers across the Country
With the continuing threat of further
attacks, daily news regarding U.S.-led military action in Iraq and Afghanistan, and
the now routine audio and video messages
from Osama bin Laden, the reminders of
September 11 are constant. Under the circumstances, eliminating workplace discrimination based on national origin, especially
discrimination directed toward those of
Middle Eastern descent, will be a challenge
for the future.
After September 11, the EEOC acted
quickly to prevent backlash against the Arab
community through Commission-initiated
litigation, including EEOC v. Alamo RentA-Car LLC (U.S. Dist. Ct. D. Ariz., Sept. 27,
2002), EEOC v. Chromalloy Castings (U.S.
Dist. Ct. M.D. Fla., Tampa Div., Sept. 30,
2002) and EEOC v. Worcester Art Museum
(U.S. Dist. Ct., Dist. Mass., Sept. 30, 2002). As
explained by Chair Dominguez after these
initial filings, “[t]he Commission will continue to be vigilant in working with employers everywhere to promote tolerance and,
when necessary, in seeking effective relief
for victims of discrimination.”
There is no indication that the EEOC is
slowing down its efforts to eradicate workplace discrimination against the Middle
Eastern and Muslim population. Under a
consent decree filed on March 22, 2004, Tatley-Grund, Inc., a construction repair company in the State of Washington, agreed to
pay $33,500 to settle the claims of a former Iraqi employee who alleged that the
company terminated him unlawfully based
on his national origin. In EEOC v. TatleyGrund, Inc. (W.D. Wash., No. CV03-2949P),
the employer denied any liability, but ultimately agreed to pay to settle the claim. In
addition, the company agreed to other conditions including establishing and main47
Employment Law Committee
taining a written EEO policy, complying
with additional reporting requirements for
two years, providing Title VII training to
managers and posting the consent decree
for two years.
Under a consent decree filed May 25,
2004, in EEOC v. Norvell & Wallace, Inc.
(M.D. Tenn., No. 3-02-0951), Norvell & Wallace, Inc., a lumber company in Nashville,
Tennessee, agreed to pay $80,000 to resolve
claims that it engaged in unlawful harassment of Iraqi employees based on national
origin. The EEOC alleged that Norvell &
Wallace had engaged in unlawful harassment of eight Iraqi employees including
the termination of Mohammed Eskandar.
Similar to the agreement reached by the
EEOC with Tatley-Grund, Norvell & Wallace
agreed to establish anti-harassment policies, comply with reporting requirements
for three years and provide anti-harassment
training to all employees. The company was
also enjoined from harassing employees
based on national origin.
In addition, reports of private settlements and verdicts associated with national
origin claims continue to flow through
media outlets and keep the issue in the
mainstream. On July 27, 2004, a federal jury
in the case of Nadar v. Ashcroft (S.D. Fla.,
No. 03-CV-60781) awarded former Immigration and Naturalization Service port
director Simon Abi Nadar, an Arab American, $305,000 in emotional distress damages for harassment he claimed to have
endured from his supervisors related to
his national origin and race. According to
his filings, Nadar alleged that his supervisor continually mocked his accent and
otherwise harassed him in front of other
co-workers and made inappropriate references to “prayer rugs” and “camels.” At the
time of the alleged incidents, Nadar was an
employee of the U.S. Justice Department.
In an unpublished opinion dated October 13, 2004, a court of appeals in California
affirmed a jury verdict that awarded emotional distress damages totaling $650,000
to five employees of a direct mail marketer.
In Chopra v. ADVO, Inc. (Cal. Ct. App. No.
A103168), five East Indian employees were
discharged from ADVO allegedly because
the workers left their shifts early. Discovery in the case revealed that at the time of
the discharges, 85 percent of the workers at
ADVO were of East Indian descent. There48
after, ADVO replaced their staffing agency
and hired new workers; none of the workers
were of East Indian descent. Less than six
months after the discharges, ADVO’s workforce had changed dramatically and only 66
percent of the workers were of East Indian
descent. In affirming the verdict, the court
of appeals explained that if ADVO sought
to diversify its workforce, which was clearly
the case, it could not do so by discriminating
against those of East Indian descent.
On November 17, 2004, a jury in Kansas City awarded a former engineer at Boe-
There is no indication that
the EEOC is slowing down
its efforts to eradicate
workplace discrimination.
ing Company $2.5 million in back pay and
related damages after alleging both age
and national origin discrimination. Mario
Goico, a native of Cuba, had been an engineer at Boeing for more than 20 years. In
2002, the company began efforts to fill test
pilot positions, a position he was qualified for and had previously filled for Boeing with accolades. Goico was not allowed
to fill one of the new positions. The jury
agreed with Goico’s claims of discrimination and awarded him back pay totaling
$31,000, compensatory damages totaling
$625,000, future lost wages and benefits in
the amount of $370,000 and $1.5 million in
punitive damages. Although Goico’s allegations went beyond national origin discrimination, the verdict clearly demonstrates
that juries can relate to employees making
such claims and, more importantly, react in
an employee’s favor with substantial monetary awards.
Another example of the feasibility of Title
VII national origin claims is the U.S. District Court for the Eastern District of New
York’s recent denial of respondent’s motion
to dismiss the claims of Nancy Gad-Tadros,
an Egyptian, in Gad-Tadros v. Bessemer Venture Partners (E.D.N.Y., No. 03-CV-3579).
Gad-Tadros alleged that she received good
reviews with Bessemer for three years until
2001, when she began reporting to a new
supervisor. Thereafter, the supervisor allegedly belittled Gad-Tadros’ Egyptian heritage
and the company began promoting others in
the organization despite Gad-Tadros’ seniority. The court concluded that sufficient evidence existed for the case to proceed.
Similarly, summary judgment was
denied on September 7, 2004, to the former
employer of an Iranian in Afshar v. Pinkerton
Academy (D.N.H. CV-03-137). Foad Afshar,
a former guidance director at Pinkerton
Academy, sued his former employer after
noticing a significant change in the attitude
towards him after the terrorist attacks of
September 11. After receiving a good review
and being offered a promotion in the summer before September 11, 2001, Afshar was
shocked when his contract was not renewed
in March 2002. Although Pinkerton had
allegedly provided a legitimate and nondiscriminatory basis for its decision not to
renew Afshar’s contract, the court concluded
that discrepancies in Pinkerton’s explanation, coupled with Afshar’s conflicting representations, created, at a minimum, issues
of credibility about the reasons given by
Pinkerton for the termination.
Eliminating National Origin
Discrimination in the Workplace
As the previously referenced cases demonstrate, numerous claims are being made
across the country, both by the EEOC and
private litigants, to redress the injuries suffered by employees who have been subjected to unlawful discrimination based
on national origin. It is well-known that an
employer’s failure to take adequate steps to
prevent or remedy harassment may lead to
employer liability. Moreover, as established
in the United States Supreme Court’s decisions in Faragher v. City of Boca Raton, 524
U.S. 775 (1998), and Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742 (1998), employers
are vicariously liable for unlawful harassment by a supervisor unless the employer
can demonstrate that it exercised reasonable care to prevent or promptly remedy
the behavior and that the employee, without justification, failed to take advantage
of opportunities provided by the employer
that may have alleviated the harassment or
otherwise failed to unreasonably avoid the
harassment. The cost to employers, both in
terms of judgments, settlements, attorney’s
fees and costs, as well as simply the time
away from the business of making money,
can be substantial.
For The Defense
Employment Law Committee
Although it is impossible to eliminate
all forms of discrimination or harassment
in the workplace, an employer can make
great strides in curbing the frequency of
claims with an emphasis on one simple concept: communication. All employers must
engage in the same decision-making process related to their respective employees.
Each employer, regardless of the size of the
company, must recruit, hire, train, pay, promote, discipline and terminate employees.
Each separate step in the process of managing employees, from hiring to firing, can
and should be developed into an opportunity to communicate on issues of discrimination and harassment.
For example, in the process of recruiting and hiring new employees, an employer
should communicate with candidates very
early on regarding the fact that it does not
discriminate based on race, color, religion,
sex or national origin. An employer making
such statements even before offering a candidate a position will convey a strong message regarding the type of employee that
the company values. In addition, interviews
should be focused, to the extent possible,
on the job duties for which the candidate
is seeking employment and tailored to preestablished job descriptions. Ultimately,
this objective approach will communicate
the company’s balanced hiring approach to
March 2005
both those who are eventually hired and, of
equal importance, those who are not hired.
Likewise, a company’s communications
to its workers during the course of their
employment is of critical importance in the
battle to eliminate workplace discrimination. Written reminders to employees of the
significance of these issues should not be
overlooked. Moreover, communication on
these topics should be routine, not just given
after an incident of some type. In addition,
a company’s actions can also help shape its
internal and external reputation as a company that accommodates and encourages
diversity in the workplace. An employer’s
understanding of cultural and religious customs and its ability to accommodate these
differences is just one way that a company
fosters workplace harmony while encouraging diversity.
Finally, as with the decision to hire, the
decision to terminate an employee must be
conducted in an objective manner. Employers can avoid potential claims by developing clear guidelines for employee conduct
and the consequences of not abiding by the
guidelines. Obviously, this is only half the
battle. An employer must also consistently
follow the policies developed and attempt
to avoid discretionary decision-making to
the extent possible. To the extent some discretion is necessary, employers should make
every effort to build this flexibility into their
policies and define the limits of this discretion, if feasible.
Conclusion
Most likely, Title VII claims alleging national
origin discrimination will remain a hot issue
in employment law for years. National origin
discrimination, like all forms of discrimination, can be deterred in the workplace if an
employer communicates properly with its
employees. Adequate communication with
employees, through advertisements for positions available, well-defined policies and procedures regarding anti-discrimination, and
the uniform application of policies, plays an
important role in the education of employees regarding the value of diversity, not only
in the workplace, but in society as a whole. A
workforce educated in the value and importance of diversity will be a stronger team.
Employers should be encouraged, prior to
a precipitating event, to incorporate specific
education regarding national origin issues
into their existing anti-discrimination programs. If employers do not regularly look at
their anti-discrimination programs, counsel’s role should be to bring this issue to their
attention and remind them of the importance of not overlooking societal changes that
make current policies, although perhaps not
illegal, outdated.
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