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Protecting Hispanic/Latino/Latinx Employees From Discrimination

Hispanics (someone who has origins from a Spanish-speaking county), Latinos (someone of Latin American descent), and Latinx (a gender-neutral term for those of Latin American descent) are the fastest growing workforce in the county, making up 17 percent of the workforce. As their presence in the workforce has increased, so have their reports of discrimination. Nearly one-third of Hispanics/Latinos have reported facing discrimination at work in all aspects – hiring, promotion, harassment, and wrongful termination. Because Hispanic, Latino, Latinx, Afro-Caribbean, Chicano, Puerto Rican, Colombian, Mexican, Puerto Rican, Latino, Brazilian, Cubano, Costa Rican, Peruvian, Guatemalan, Dominican, and other identifiers are preference-based, here we will use them interchangeably to acknowledge and discuss the same class of discrimination.

Under Title VII of the Civil Rights Act of 1964, and the Civil Rights Act of 1866, it is illegal for any employer to discriminate against an employee because of the employee’s race, national origin, or ethnic background. These employment laws expressly prohibit race, national origin, and ethnic background from adversely impacting decisions to wrongfully fire, refusing to hire, failure to promote, demote, set equal pay, and conditions of employment. At Spitz, The Employee's Law Firm, our employment discrimination attorneys help employees protect their rights every day.

Understanding Employee Protections

What protected category do Hispanics/Latinos fall under for employment law purposes?

It’s complicated. According to the U.S. Census, Hispanic/Latino is not a race but an ethnic identifier. The Equal Employment Opportunity Commission (“EEOC”) generally considers Hispanic/Latino a protected class based on national origin and defined “Hispanic” as defined the term Hispanic to mean a person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin.

Discrimination against Latinos and Hispanics can constitute discrimination on the basis of race, national origin, and ethnicity. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; The EEOC Will Not Help You Properly Fill Out The Charging Form; Read This Before Filing An EEOC Charge).

Courts have struggled as to whether Hispanic constitutes a race for purposes of employment discrimination laws, including Title VII and 42 U.S.C. § 1981 (Section 1981). Title VII prohibits employers from discriminating against employees on the basis race, color, national origin, and ethnicity, among other protected classes. Section 1981 forbids employers from discriminating against employees on the basis of race but not on the basis of national origin. The U.S. Supreme Court determined that Hispanic is a race for the purposes of a § 1981 claim in Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987) and has further defined “race” to include discrimination based on “ancestry or ethnic characteristics.”

Recently, the United States Court of Appeals for the Second Circuit held that, as a matter of law, “race” under both Section 1981 and Title VII includes Hispanic ancestry and that discrimination based on Hispanic ancestry is racial discrimination under both statutes. Village of Freeport v. Barrella, 2016 WL 611877 (2d Cir. Feb. 16, 2016). Each state may have addressed this separately as well. For example, Ohio also has generalized Hispanic as a race in employment discrimination.  In North Carolina, discrimination charges are usually brought under ethnicity or national origin claims.  In Michigan, claims are brought under race, ethnicity, and national origin.

Under these laws, an employee cannot be harassed or denied equal employment opportunity on the basis of being Hispanic/Latino or the perception of being Hispanic/Latinx. Whether it’s based on physical characteristics like hair texture, color, or facial features, or marriage to or association with someone Hispanic, discrimination based on being Latinx is prohibited. A job also cannot make employment decisions about employment based on assumptions or stereotypes about abilities, traits, or performance of Hispanics.

Recognizing Latino Discrimination

An employer will not say that you are being treated differently because you’re Latina. There are two different ways to show discrimination: disparate treatment and disparate impact.

Disparate treatment occurs when an employee’s status as Latina is a motivating factor in how the employer treats the employee. Does your employer call you “JLo” even though your last name is not Lopez, but calls your non-Hispanic coworkers by their actual names? Does your boss write you up for being loud, even though you’re NuYorican and that’s just how you are, but does not write up the white woman who shouts across the floor? Does your supervisor call you Slowpoke Rodriguez and tell you to work faster, even though your productivity numbers are the same as non-Hispanics? That’s disparate treatment.

Disparate impact happens when a job puts in a “neutral” rule or procedure that is not job-related or a business necessity and it negatively affects one protected class of employees, Latinos, more than others. “English-only” jobs? We’re looking at you.

Recognizing Hispanic Harassment

Legally, Hispanic/Latino harassment is as unwelcome conduct that unreasonably interferes with an employee’s ability to work. Harassment can also occur when a company allows or creates a hostile, offensive, or intimidating workplace. If your supervisor, manager, or boss is harassing you based on being Hispanic, letting others – including customers – use slurs against you, and does not stop the harassment stop, they may be liable for damages in a wrongful termination suit.

If you are googling any of the following, then you should call Spitz, The Employee's Law Firm:

  • I was fired today after I reported to HR that my supervisor mistreats Hispanic workers.
  • The company that I work for wont promote me because I’m Latino and just promoted a white person over me, and her education, experience, and sales are all less than mine.
  • My boss keeps calling me a spic and a wetback.
  • The manager at my store would not do anything when I told him that my coworkers were saying I should go back to Mexico, and they were going to “Build the Wall.”
  • My boss made me take a drug test because he found out my boyfriend is Mexican.
  • I get paid less than non-Hispanic people even though we have the same job.
  • I got fired even though my white coworkers do the same thing all the time.
  • I am the only brown person at my job and they always make me clean the bathrooms, even though everyone is supposed to take turns.

A Few Frequently Asked Questions Regarding Hispanic Discrimination

Discrimination against Hispanics occurs far too often in Ohio, Kentucky, Michigan, North Carolina, and throughout the United States. At Spitz, our wrongful termination lawyers fight against these instances to ensure a fair working environment for all. If you’re wondering whether you’ve been discriminated against because you are Hispanic, we’ve addressed some of the more common questions we receive right here:

Can my job have English-only policies? Can my boss tell me that I can’t speak Spanish at work?

If your manager enforces a “We speak American here!” rule, there is likely a violation of the law. The general rule is that an English only rule is likely to be a problem on most jobs, but it is not always unlawful discrimination. An employer is allowed to put English only and English fluency policies and requirements in place if English is necessary to perform the job effectively or safely. An “English-only rule” can never be put into place simply for discriminatory reasons. Your boss or manager also is not allowed to base any employment decision on your foreign accent, except if the accent seriously interferes with job performance.

Can my job refuse to assign me a particular account because the client does not like Chicanos? Is my boss allowed to take me off a client because the client won’t work with Mexicans or doesn’t like my accent?

No. No, no, and no. An employer cannot shield themselves from liability for making Hispanic-based employment decisions by pointing to their clients’ preferences or aversions to “Mexicans” or “Spanish” people. So, if your manager or boss allows customers or co-workers to tell you, “I don’t want some Mexican helping me!” – you best call employee’s rights attorneys to help you.

Is it legal for a company to ask me during an interview if I am a citizen? When do I have to provide documents to show that I can work in the United States?

This gets a little tricky. A company can ask for your national origin on an application for statistical record-keeping but should not make it a requirement to provide that information. On the other hand, an interviewer should not inquire into your citizenship status. Before offering the job, the potential employer is only allowed to notify you that should it offer you the position, you will need to provide documentation that you can legally be employed in the United States during your first three days of work.

Can I be turned down for a job because I am not a citizen of the United States?

Mostly, no. The Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful for most employers to make hiring, firing, or recruitment decision based on the citizenship or immigration status of the applicant. This means that employers cannot hire only U.S. citizens or lawful permanent residents unless that employer is expressly required to do so by law, regulation, or government contract. Under IRCA, employers must accept any lawful documentation that establishes the applicant’s employment eligibility. If provided with such documentation, the employer is not permitted to demand further documentation to verify employment eligibility. The law clearly provides that the employee or applicant has the sole discretion to choose the acceptable Form I-9 documents to use for the purpose of verifying eligibility for employment.

Can I be fired for reporting Hispanic discrimination?

Title VII and state anti-discrimination laws make it unlawful for an employer to fire or otherwise retaliate against an employee for submitting a report or otherwise opposing Hispanic discrimination or harassment. Indeed, a retaliation case can be stronger and easier to prove than the underlying discrimination case. Therefore, it is really important for you to put your complaints of Hispanic discrimination in writing, which can include emails, faxes, and even text messages. Our employment discrimination can even help you document your opposition to this unlawful conduct.

Are slurs and/or insults unlawful? What can I do if my boss and manager keep calling me a wetback?

When considering whether Latino-based slurs, insults, jokes, and/or comments rise to the level of being illegal, the focus is on whether such conduct is severe and pervasive enough to create a hostile work environment. As such, isolated insults and comments will not likely create an independent claim of national origin discrimination. However, these slurs, insults, jokes, and/or comments may provide supporting evidence as to why an adverse employment action was taken. Furthermore, once you report such conduct, continued allowance of such conduct, especially when done by a manager or boss will likely be evidence of retaliation, which, again, can be an even stronger claim.

How do I prove Hispanic discrimination? What evidence do I need to sue my employer for discriminating against me because I’m Mexican?

Obviously, national origin discrimination can be proved with direct evidence from your boss, supervisor, manager, HR or another decision-maker, including comments such as “We don’t need any Hispanics in management,” or expressly refusing to hire non-American citizens. If that type of direct evidence is not available, an employee, with the help of a qualified employment lawyer, can demonstrate national origin discrimination by using circumstantial evidence. If you are proceeding this way, the employee has to first clear four initial hurdles, or what courts refer to as a “prima facie case.” These hurdles require the employee to show that: (1) you are or are perceived to be Hispanic; (2) your employer fired your or took a different adverse employment action against you; (3) you were qualified for the position at issue; and (4) you were replaced by or treated differently than someone of a different national origin, which in most cases is an Anglo-American. Once an employee clears these initial hurdles, the employer is required to state non-discriminatory reasons for the adverse action taken against you. At that point, you have the opportunity to show that the reason given by the employer is pretext, which is the legal term for a lie.

I was fired because I’m Hispanic – can I sue? Do I have a claim for race discrimination or wrongful termination?

Our employment attorneys have provided as much information as we possibly can on this website regarding Hispanic discrimination and harassment, but your particular chances to prevail on a claim for race, ethnicity, or national origin discrimination; and/or for wrongful termination cannot be properly evaluated without a discussion regarding the facts relating to your termination and employment situation. Because our employment law attorneys fight for employees’ rights every day, we offer a free initial consultation for all potential employment law claims. You should not try and figure out your rights by Googling for information when your best available option is to call or fill out a web submission that can help get you a free answer.

These answers are not applicable to all cases, and if you suspect you may be facing discrimination, it’s important that you reach out to us to discuss your case. Give us a call today to start your free consultation.

DISCLAIMER: These answers do not constitute legal advice or guidance.

The First Step Is To Call The Right Attorney™

If you feel that your employer is discriminating against you based on your national origin (Hispanic, Mexican, Puerto Rican, Latino, Brazilian, Columbian, Cubano, Costa Rican, Peruvian, Guatemalan, Dominican), you may have a legal claim. To find out if you have a legal claim for discrimination because you’re Hispanic/Latino/Latinx, your best option is to call the right attorney to schedule a free and confidential consultation. At Spitz, The Employee's Law Firm, you will meet with a Latinx-discrimination attorney, who will be able to tell you what your legal rights are and the best way to protect them.

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