Employment Discrimination Based on Immigration Status: Recent Cases Involving H-1B Visas

The worldwide economic downturn has seen a reversal in previous trends toward offshore staffing and an increase in protectionism toward home country labor. However, employers in the U.S. face potential legal liability if they favor American citizens over authorized foreign guest workers in layoffs, pay decisions, and other such actions. Thus far, employers have succeeded in defending most discrimination claims involving citizenship or immigration status—which often are made by out-of-work plaintiffs unable to afford legal representation—on technical grounds such as faulty pleading, failure to exhaust administrative remedies, filing with the wrong administrative agency, or mischaracterizing immigration claims as ones involving national origin status. These results notwithstanding, a closer reading of the cases suggests that substantive liability may be a matter of growing concern as plaintiffs or their counsel learn to correct such errors. The issues are important to both sides of the employment relationship in today’s global labor market; foreign guest workers will want to better understand their responsibilities and rights, while businesses will want to better manage their legal risks. Because little if any scholarly research has addressed these matters, an exploratory case law review is presented in an effort to identify trends in fact patterns that have generated such issues. Based on the results, practical recommendations are offered for improving the management of U.S. employment relationships that involve foreign guest workers.     

The legal history of work-related sexual harassment and implications for employers

Over the years, the courts have come to consider sexual harassment as a kind of sex discrimination under Title VII of the Civil Rights Act of 1964. Employers are held liable for sexual harassment, and have an affirmative action obligation to eliminate sexual harassment from the workplace. The courts and the EEOC Guidelines have defined sexual harassment as tangible employment consequences or behavior that creates a hostile or offensive working environment. Employers can limit their liability by creating a system to detect sexual harassment and to remedy it promptly. Suggestions to wards developing a strong policy to eliminate sexual harassment from the workplace are given.     

Broadening the Definition of Unlawful Retaliation Under Title VII

Title VII retaliation cases have become a larger part of the Equal Employment Opportunity Commission (EEOC) caseload, and this development should be a growing concern for business. By addressing the question of exactly when a prohibited retaliatory action has been taken against an employee, the United States Supreme Court’s June 2006 decision in Burlington Northern & Santa Fe Railway Co. v. Sheila White ended a significant disagreement among the various appellate courts on the issue. The Supreme Court answered two specific questions regarding retaliation for raising a claim of sexual discrimination. First, the Court decided that the retaliatory conduct need not take place within the employment setting; and, second, it held that a materially adverse action requires only that a reasonable employee would be deterred from making, filing, or supporting a claim of workplace discrimination to the EEOC, the courts, or the employer. Employers need to revise and update their internal policies and procedures to ensure that their firms comply with these new standards.     

Court Standards for Terminating Employees Under the ADA: Some Questions and Answers for Managers

Since the passage of the Americans with Disabilities Act in 1990, managers have had to wrestle with the question of what to do when employees become disabled and can no longer perform their jobs as they had before. By law, managers are required to retain such employees if, with reasonable accommodations, they are able to perform their jobs' essential functions. But the written law leaves a number of issues in doubt, such as how managers should (1) determine whether an employee's impairment qualifies as a disability, (2) identify the job functions that are essential, and (3) decide how far to go when granting an accommodation. The Equal Employment Opportunity Commission (EEOC) has issued volumes of regulatory guidelines that deal with these questions. Only now, however, is a body of case law beginning to emerge. Because case law takes legal precedence over EEOC interpretations, managers must keep abreast of court decisions, especially when the courts' edicts conflict with those published by the EEOC. This article describes ADA case law in the form of answers to questions frequently posed by managers. It is based on a review of 44 ADA court cases dealing with wrongful termination claims, 4 of which were decided by the Supreme Court.     

“We do not hire smokers”: May employers discriminate against smokers?

Smoking employees are less healthy than nonsmokers, are absent more, make more and more expensive claims for health and disability benefits, and endanger co-workers who breathe smoky air. Employers may establish smoke-free workplaces, but—beyond that—employers may absolutely discriminate against smokers. Absent some common-law or statutory prohibition, employers are free to hire whomever they wish. The Americans with Disability Act prohibits discrimination against “disabled” applicants or employees, but smokers are not “disabled,” nor “regarded as” being disabled. Moreover, statutory construction does not lead to the conclusion that smokers are “disabled.” Since the policy of government is to discourage smoking, and discrimination against smokers promotes nonsmoking, such discrimination is not only not illegal, it is good social policy.     

Appearance-based Sex Discrimination and Stereotyping in the Workplace: Whose Conduct Should We Regulate?

Court treatment of sex discrimination and harassment claims based on appearance and gender stereotyping has been inconsistent, particularly where the facts involve reference to sexual orientation. Ironically, court willingness to allow such claims may turn on the choice of verbal or physical conduct by, or the sex or sexual orientation of, the alleged offenders. Because plaintiffs in such situations may assert retaliation claims to increase their chances of prevailing, employers should focus less on regulating aspects of personal appearance unrelated to job performance and more on problematic reactions by co-workers. Workplace civility policies may hold promise for limiting both legal liability and practical consequences in the absence of a legislative response.

Racial harassment: Case characteristics and employer responsibilities

This article examines the socio-business issue of racial harassment in the workplace. For two decades, the federal judiciary has been defining and refining the elements of the offense within the parameters of Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866. The Supreme Court’s decision to hear arguments for the first and only time on one of the important aspects of the developing doctrine focused considerable attention on this workplace problem in 1989. The Civil Rights Act of 1991 provides limited money damages to victims of discrimination under Title VII of the Civil Rights Act of 1964, whereas Section 1981 of the Civil Rights Act of 1866 provides unlimited damages to the victims of discrimination and race harassment. The authors discuss the legislative and judicial foundations of race harassment with respect toPatterson v. McLean, provide a profile and analysis of racial harassment cases (1971–1987), and conclude with a discussion of employer liability and recommendations for management.     

“The Times They Are a-Changin”: Family Responsibilities Discrimination and the EEOC

Family responsibilities discrimination, bias against workers based on their responsibilities to care for family members is widespread in many organizations and is rapidly becoming a twenty-first century workplace concern. Employers who harass, pass over for promotion, and even terminate workers because they care for children, elderly parents or spouses, or disabled family members have been sued with more frequency and have been paying increasing amounts in verdicts. Recently, the EEOC took an important step toward ending this discrimination by issuing enforcement guidelines that will educate employers and employees about family responsibilities discrimination and caregivers’ rights and responsibilities. The Guidelines explain how federal equal employment opportunity laws apply to workers who struggle to balance work and family, and what firms can do to avoid potential legal problems and accompanying liabilities with respect to family responsibilities and caregiving discrimination.

Sexual Harassments: Criteria for difining hostile enviorment

Sexual harassment in the workplace continues to be one of the most controversial and complex legal and ethical issues facing empolyers. The U.S. Supreme Court's June 1986 decisiion inMeitor Savings Bank v. Vinson, which applied Title VII of the Civil Reights Act to situations involving sexual harassment, is discussed. The Court's definition of hostile environment is reviwed, and federal court cases interpreting the Supreme Court's pronousncements are examined. The cases provide guidance on the kinds of situations that result in employer liability for sexual harassment. A primanry conclusion is that employers may easily avoid liability by exercising learned judgment and sound management practices.     

Let’s Not Go Down that Path Again: Lessons from the Past Applied to Immigrant-Targeted Discrimination

Immigrants, both legal and illegal, are a staple of the modern United States workplace. While much of the discussion of this fact centers on negative consequences for the U.S., far less attention has been paid to the detrimental impact on immigrants resulting from their workplace experiences, particularly relating to being targets of discrimination. In this article, we outline: a) a variety of types of workplace discrimination potentially relating to immigrant status; b) potential negative outcomes arising from said discrimination for both immigrant employees and their employers, and; c) how existing and predicted employment law standards place organizations in a legally vulnerable position when such discrimination goes unchecked. We further discuss implications of immigrant-targeted discrimination (ITD) for organizations and managers, and plausible extensions of workplace discrimination laws to specifically include ITD.     

In Sickness and in Health: Recent Judicial Developments in Americans with Disabilities Act Association Discrimination Cases

A little-known provision of the Americans with Disabilities Act (ADA) prohibits covered employers from taking an adverse employment action against a qualified employee if a determinative factor in the adverse employment action is the disability of an associate or relative of the employee. A review of the reported court opinions indicates that plaintiff employees often encounter difficulty in these cases. Some plaintiffs are unable to prove that they are “qualified” employees at the time of the adverse employment action, and other plaintiffs find it difficult to prove that a determinative factor in the adverse employment action was the disability of the associate or relative. However, plaintiffs have achieved some success as evidenced in the 2008 U.S. Circuit Court of Appeals holdings in Dewitt v. Proctor Hospital and Trujillo v. PacifiCorp. This paper describes reported U. S. Circuit Court of Appeals opinions about ADA association discrimination, its relationship to the Family and Medical Leave Act and Employee Retirement Income Security Act, and the implications for employers, employees, and lawmakers. It also offers practical guidance to both employees and employers for asserting and managing rights and potential liability in this area.     

Impact of Same-Sex Harassment and Gender-Role Stereotypes on Title VII Protection for Gay, Lesbian, and Bisexual Employees

When victimized in the workplace, gay, lesbian, and bisexual (GLB) employees often find themselves without recourse as Title VII does not recognize sexual orientation to be a protected class. We suggest that recent court decisions that have expanded Title VII to protect individuals from discrimination based upon violations of gender norms can be used to provide a basis for protection of GLB individuals under this statute. Using a review of the role of gender norms in the workplace as well as an analysis of recent court decisions and the Congressional debates on the Federal Marriage Amendment as well as the wording of the Defense of Marriage Act [Defense of Marriage Act (DOMA), Pub. L. 104-199, Stat. 2419 (September 21, 1996)], this paper provides the theoretical background and conceptual argument (but does not attempt to make the legal argument) to suggest that same-sex harassment and discrimination are considered violations of societal gender norms and should therefore be protected under the expanded coverage of Title VII.     

Workplace Religious Displays and Perceptions of Organization Attractiveness

Workplace religious expression has become an intensely debated topic across news outlets and social media. However research on what constitutes acceptable vs unacceptable workplace religious display is sparse. At a time when EEOC claims involving religion are on the rise there is a clear need for study in this area. In this study participants in two samples read 27 scenarios where an interviewer engaged in a Christian religious display during a job interview. We used Christian religious displays for their ease of recognition in an American sample. Participants rated each workplace religious display in terms of likelihood of occurrence and organization attractiveness. In both samples organization attractiveness ratings were more negative than expected in a predominantly Christian sample signifying that while individuals may value their ability to express their religion they may not appreciate such displays from those who represent an organization. Verbal and physical religious displays received more negative ratings compared to scenarios that spoke to shared experiences such as displaying pictures of one’s children in a religious ceremony. Application in organizations and HR implications are discussed.     

Claims of employment discrimination and worker voice

Using the U.S. National Study of the Changing Workforce survey, we show that claims of racial and gender discrimination emerge less frequently in workplaces with established worker voice mechanisms. This result accords with the hypothesis that participation enhances perceptions of workplace fairness. We show that while having a supervisor of the same race or gender is associated with reduced discrimination claims, the role of voice tends to be larger when the race or gender of the supervisor is different from that of the worker. This suggests that voice may be particularly important in heterogeneous workplaces.     

Balancing Hate Speech, Professional Ethics, and First Amendment Rights: A Case of and from the Judiciary

As an increasing number of state and local governments pass laws that prohibit discrimination against gay and lesbian employees, individual citizens and groups opposed to such rights continue to fight against them. Although the First Amendment to the United State Constitution guarantees the right to free speech, a potential problem arises when the impartiality of a member of the judiciary is questioned based on free ‘‘hate speech’’ expressed as a private citizen. This paper explores the dilemma the courts face relative to the professional ethics of those who oversee the courts where gay and lesbian and other employees attempt to ensure their rights to fair treatment in the workplace.     

The Implications of ADA Litigation for Employers: A Review of Federal Appellate Court Decisions

Analysis of litigation outcomes indicates that most plaintiffs who sue under the Americans with Disabilities Act are unsuccessful. Equal Employment Opportunity Commission enforcement data and six years of federal appellate court decisions were reviewed, as well as recent rulings of the United States Supreme Court. The courts are interpreting the ADA very narrowly, and very few plaintiffs prevail. The results of this research suggest that if employers engage in an individualized assessment of whether an individual is protected by the law and whether the requested accommodation is reasonable, legal liability will be minimized. © 2001 John Wiley & Sons, Inc.     

In Sickness and in Health: Implications for Employers when Bipolar Disorders are Protected Disabilities

This paper explores the potential conflict between employment protections afforded to individuals with bipolar disorder, and employers’ obligations to maintain a safe working environment for others in the workplace. Both the Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendments Act of 2008 (ADAA) provide workplace protections to those employees or applicants who are classified as qualified individuals with a disability. A disability is “a substantial impairment—a physical or mental impairment—in a major life activity that would substantially limit that major life activity.” ( 42 U.S.C. §§ 12102(1)(A)-(C)), and “mental impairment” is defined to include individuals with bipolar disorder (42 U.S.C. § 1630.2(h)(2)). These statutes further impose a requirement on employers to make reasonable accommodations for such individuals. In essence, they protect the bipolar employee from any discrimination in the workplace based on their disability, to include harassment by coworkers. However, employers may find themselves caught on the horns of a dilemma. Depending on the nature and severity of the bipolar employee’s conduct toward coworkers, they may also be exposed to liability for harm done to coworkers under negligent retention laws, or even the anti-harassment provisions of other equal employment statutes. If a bipolar employee’s negative behaviors toward coworkers are sufficiently severe or pervasive, they can result in coworkers suffering harassment sufficient to constitute actionable conduct under the ADA. To reduce exposure to litigation, employers must understand both their obligations under the ADA, and the nature of bipolar disorder.     

Employment Discrimination and the International Workplace: A Review of Recent US Court Rulings

The extraterritoriality clause in the Civil Rights Act of 1991 amended Title VII and the ADA to include employment discrimination protection for US citizens working abroad for US employers. A review of recent court rulings demonstrates an absence of lawsuits involving alleged violations of the extraterritorial provision. Instead, recent cases show that Americans working outside of the US are filing charges against foreign employers rather than US employers and applying state level employment statutes rather than federal legislation. In addition, non US citizens are exhibiting a trend toward invoking US federal and state statutes against US employers. These cases are reviewed and implications discussed for managing employment relations in an increasingly international workplace.

Employee Awareness of Workplace Violence Policies and Perceptions for Addressing Perpetrators at Colleges and Universities

Most of the research on workplace violence has focused on workplace violence incidents and the development of models to predict and address the phenomenon. The assumption that all organizations are essentially similar in nature underlies this research. However, colleges and universities differ from for-profit businesses. Little, if any, research has been conducted to determine employees’ awareness of workplace violence policies and employee perceptions of potential perpetrators and how to address perpetrators which is necessary for increasing such policies’ effectiveness. The present study examines the awareness of employees at a large, public university in the Midwestern United States concerning WPV. Respondents indicate which sources they perceive to be likely perpetrators of workplace violence, and the actions that organization should take if WPV occurs. Based on this information, steps to increase employee awareness of workplace violence policies in colleges and universities are suggested.     

Physicians and the risk of medical malpractice: The role of prior litigation in predicting the future

This article examines the role of a physician’s prior experience in medical malpractice litigation in the resolution of current malpractice claims. We first use probability theory to show that if physicians are heterogeneous in the quality of care they practice, then a record of malpractice liability makes it more likely that the physician provides care of relatively low quality, and that if a malpractice claim is filed, it is more likely that the physician was in fact negligent in this case, and that the claim will be paid. We then show that this last result, which is testable, holds up when we analyze the resolution of medical malpractice claims filed in Michigan over the period 1982 to 1989. We find that malpractice liability, whether from an out-of-court settlement or through verdict of a court or arbitration panel, is significantly more likely when the defendant has a poor prior litigation record. The defendant’s litigation record is also positively and significantly related to the amount of a settlement payment, but not to an award made through trial or arbitration.