Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.
Contrary to popular opinion, many immigrants work in professional and white-collar jobs. The explosive growth of immigration to the United States means that more immigrants will work in white-collar jobs in the United States. Since white collar jobs often require verbal communication, immigrants employed in white-collar professions and their employers will increasingly face the question of whether it is legal to discriminate on the basis of accent.
Most federal and state courts that have addressed the issue believe that it is illegal for employees to discriminate based on accent if that discrimination is tied to nationality. Courts have even gone so far as to state that nationality and accent are intertwined, which means that they take such discrimination seriously. However, courts understand that employers have an interest in clear verbal communication. So what steps should you take if you think you are being discriminated against because of your accent?
- Apply for a promotion for which you are qualified: Discrimination is only actionable if the company takes some action against you. One so-called adverse action is a failure to promote. If you are a trusted and valued employee, a company will often give you a reason why you were not promoted. If this reason is related to your accent, you can often get a decision maker to say as much. Legally, this is considered direct evidence of discrimination.
- If possible, reach out to other foreign-born employees in your workplace: If other foreign-born employees are being discriminated against for the same or similar reasons, it makes sense to work with them, as it can show a pattern by the employer. Also, when employees work together to fight discrimination, they are not just protected by civil rights laws, but they are also protected under the National Labor Relations Act.
- If possible, contact an employment attorney in your area before you decide to take action: Every situation is different, and laws vary from state to state. A lawyer can give you tips about how to potentially build a case, can give you advice about actions and tactics to avoid, and can advise you about any legal deadlines that might apply to your potential case.
Erik Larson’s bestseller, In the Garden of Beasts, begins in June of 1933 when Franklin Roosevelt appoints William E. Dodd, a 64-year-old history professor at the University of Chicago, to become ambassador to Germany. Dodd’s political and diplomatic skills are minimal, but he accurately reports back to the state department what is happening and he is routinely ignored. Dodd had no delusions about Hitler but did hope to find some decent people around him. Instead, he discovered that the whole gang was nothing but “a horde of criminals and cowards.”
Although war did not break out until Germany invaded Poland in 1939, between 1933-1939 there were numerous opportunities to stop Hitler. In October of 1933 he announced that Germany would pull out of the League of Nations and effectively nullify the Treaty of Versailles, which had ended World War I. That meant that Germany would rearm. France, Poland and Czechoslovakia could easily have overwhelmed the small German army at that time, but failed to take action. As priests and others who disagreed were hauled off to concentration camps, no outcry came from those with influence. When internal bickering in the Nazi Party led to assassinations, fear and tension within Germany, President Hindenburg threatened to take over the government through martial law, but he failed to follow through and allowed Hitler to proceed. Hitler knew he could have been stopped along the way, and was gleeful at the weakness of his adversaries, both foreign and domestic.
Tragic consequences resulted from the failure to stand up against those who created laws to discriminate against Jews, homosexuals and the mentally ill, as well as political adversaries. In Germany, when some people eventually wanted to stand up and object, it was too late. In the United States, there is no fear of a concentration camp or imprisonment if we object against discrimination and unbalanced legislation, yet we fail to act. What is stopping us?
Federal law provides that employers with 15 or more employees cannot discriminate against employees because of genetic information.
Under a 2009 Federal law called GINA (the Genetic Information Nondiscrimination Act), employers with 15 or more employees cannot discriminate against employees because of genetic information. That information may include a past or present medical history (for example: breast cancer, diabetes, depression, or colon cancer) of family members. GINA prohibits disclosure of this sensitive information by employers and prohibits the employer from even making a request for such information. If they have this information, it must be kept in a file that is separate from the regular personnel file.
The EEOC (Equal Employment Opportunity Commission) has made regulations, effective January 10, 2011, to enforce this federal statute and allows an action for damages, including punitive damages, reinstatment and back pay, and reasonable attorney’s fees.
In the workers’ compensation setting, this information is sometimes gathered by medical experts conducting independent medical exams, by nurse case managers who may seek to find out any and all medical information about the injured worker’s family as well as the injured worker, or by family physicians who have made non-work-related entries in the medical records. However, GINA has allowed an exception to the overall thrust of the legislation by stating that if the information is relevant to the workers’ compensation claim, it can be disclosed. The legislation gives no definition of the term “relevant” and makes the interaction between the health care provider, the carrier, the employer and the employee complicated, to say the least. Lawyers who represent employees and employers should be aware of GINA and protect sensitive genetic information from disclosure, and claimants should make sure their physician is aware of it as well.