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Employment Law: Negotiating Unemployment, National Origin and Transportation Discrimination Issues

I have been teaching for the American Management Association (AMA) for 27 years. One of my key courses is Employment Law along with Negotiation. On the surface, one might think of employment law as boring, but in actuality employment law is exciting and dynamic. I do my best to bring this dynamism to the teaching of this course.

Negotiation plays a major role in all aspects of employment laws. One finds negotiation in creating employments laws, regulations, hiring practices, conflicts, and departures.


For example, during the last teaching of this course, we had an animated discussion of employers mandating COVID-19 vaccinations. The overall conclusion was “yes” with certain exceptions. Most folks had forgotten that public schools have been requiring up to 12 times of vaccinations before entering. These vaccinations even included mumps and measles, let alone polio and diphtheria.


Of course there are vaccination exceptions such as health conditions or religious concerns.

I used skill practices, roleplays, pictures, court cases, examples, and quizzes to make the course exciting.

This blog entry will focus on several employment law questions that are posed in a quiz to participants. Often there is no set answer to these questions but instead the questions provoke an animated discussion.


Question #1: Are there jurisdictions that prohibit discrimination against “the unemployed?”

Response: When asked in a quiz, workshop participants were basically puzzled. They were not quite familiar with this issue concerning “the unemployed.” So, a fascinating discussion ensued revealing the following:


"Unemployed status" includes current or past periods of unemployment. This actually affects millions of Americans. Some believe this type of discrimination is as prevalent as age discrimination. Some contend this discrimination makes sense since if there are long gaps in employment, folks may not be up to date in their skills and knowledge.


This bias against the unemployed seems to begin after about a month of being unemployed and gets worse as the unemployment continues. There seems to be the assumption that the unemployed have poor personalities or work ethics. The unemployed definition includes those who have been “laid off.”



“A dozen states have tried and failed to enact laws making some forms of unemployment discrimination illegal. Currently, these are the only states that have passed legislation protecting the unemployed:


· New Jersey, Oregon: Employers are prohibited from publishing advertisements excluding the unemployed from applying.


· New York: Employers and employment agencies are prohibited from publishing advertisements excluding the unemployed from applying and are prohibited from discriminating on the basis of employment status, which has become a protected class.

· Oregon: Employers are prohibited from publishing advertisements excluding the unemployed from applying.


Washington, D.C.: Employers and employment agencies are prohibited from publishing advertisements excluding the unemployed from applying and are prohibited from discrimination on the basis of employment status.”


The DC law does not create a private basis for legal action but refers these cases to their Office of Human Rights.


The unemployed is not a “protected class” under federal law. The EEOC (Equal Employment Opportunities Commission) has heard arguments the unemployment discrimination unduly and unfairly affects women, the disabled and Older Americans. EEOC has not ruled on this issue.



"Unemployed status" includes current or past periods of unemployment. Federal law does not prevent employers from asking about unemployed status, but the federal EEO laws do prohibit using this information to discriminate. If an employer does reject job applicants based on unemployed status, it must do so consistently, without regard to race, color, national origin, religion, sex, disability, age, and genetic information.


Employers also must not screen out job applicants based on unemployed status if it does not help the employer to accurately identify responsible and reliable employees and if, at the same time, it significantly disadvantages people of a particular race, color, national origin, religion, or sex.


In addition, an employer may have to make exceptions to a policy of rejecting applicants based on unemployed status for applicants whose unemployed status was caused by a disability. “



Question #2: Can ethnic restaurants such as an Indian restaurant hire only people of Indian descent?

Response: At first glance, workshop participants respond "yes. This “yes” is based on the value of independent small businesses. On further reflection, they wonder why a restaurant would do this. What is the need?


The legal answer is “no.” The first step is to examine Title VII of the 1964 Civil Rights Law of the United States. It prohibits discrimination based on race and national origin, but it only covers employers of 15 or more. “Only” is used since many businesses such as restaurants do not have many full time employees. Most states have a similar law that covers even smaller numbers of employees such as five. To some degree, employers are not even allowed to ask questions that may reveal race or national origin.


These law also cover “disparate impact.” These are cases in which the direct intention may not be to discriminate but the results do. For example, if a Korean business only advertises in a Korean language newspaper.


Some restaurants would defend this hiring by saying it is “self selection;” that is, that only people who are Indian or interested in Indian food might apply for such a position. They also talk about creating “authentic” atmosphere but of course that is no defense to race discrimination.


Advertising example: In this podcast below they talk of the NYC Commission on Human Rights who recommended fining an Indian restaurant who advertised “experienced Indian waiter or waitress.” They opined that maybe this was a benign mistake.



The law makes it illegal for an employer or other covered entity to use an employment policy or practice that applies to everyone, regardless of national origin, if it has a negative impact on people of a certain national origin and is not job-related or necessary to the operation of the business.


An employer can only require an employee to speak fluent English if fluency in English is necessary to perform the job effectively. An "English-only rule," which requires employees to speak only English on the job, is only allowed if it is needed to ensure the safe or efficient operation of the employer's business and is put in place for nondiscriminatory reasons.

An employer may not base an employment decision on an employee's foreign accent, unless the accent seriously interferes with the employee's job performance.


Question #3: Are employers allowed to require “reliable job transportation” during the interview?

Response: Workshop participants immediately said "yes" to this question.


This question is a bit nuanced. The real question is what are the interests of the employer? The employer seems to be most interested in timeliness and reliability. This probably is the most appropriate question.


The above question is somewhat related to questions about car ownership to which EEOC has guidance:


“In most cases, no. This question may be discriminatory. The Equal Employment Opportunity Commission (EEOC) considers car ownership 'financial information.' While federal law does not prevent employers from asking candidates about financial information, the federal equal employment opportunity laws prohibit employers from illegally discriminating when using financial information to make employment decisions. The EEOC notes that an employer may not have a financial requirement if it does not help the employer to accurately identify responsible and reliable employees, and if, at the same time, the requirement significantly disadvantages people of a particular race, color, national origin, religion or sex. In addition, implying that there is a requirement to own a car may also adversely impact candidates with disabilities who may be unable to drive due to their impairment.


Unless the use of a personal vehicle to travel between worksites or other locations is a primary job duty, the question of whether an individual owns a car is irrelevant and could result in claims of discrimination in the hiring decision.”


Conclusion

Employment law is dynamic. Federal, state and local governments are constantly changing their laws and often are not updating their old laws. One of the best ways to keep up to date is using the website of SHRM. (Society of Human Resources Management).


Resources

American Management Association

Develop Skills in the Critical Subject Areas Needed for Success. Join an Online Seminar. Tailored Training Solutions for Individuals and Organizations

Now is a pivotal time for the workplace and workforce as critical issues affecting society impact work. The Society for Human Resource Management (SHRM).




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