Discussion Response
I need a respond to the two discussion below It need to be separate respond to both of them. I will paste them below in bold :
First Discussion
Case
Franklin, a U.S. citizen of English ancestry, was employed by China Lights restaurant. He was terminated for reporting to work late twice, 55 days apart. It is stated in the workplace policy that an employee reporting to work late more than once in a sixty-day window, will be dismissed. However, Franklin’s co-workers Pan and Jiang, who are also U.S. citizens of Chinese ancestry, were also in violation of the same rule, often. There were no administrative actions taken against the two co-workers and they are still employed by China Lights restaurant.
Analysis
I am going to assume that China Lights restaurant (private company) is located in the state of Georgia and have a total of 30 employees. Over half the employees are of Chinese ancestry. Being of Chinese ancestry is not necessary for the operation of the business. All of the employees speak English and are accustomed to the American culture. As an employer of 30 employees China Light restaurant has legal responsibilities under the federal employment anti-discrimination laws.
The Equal Employment Opportunity (“EEO”) laws were enacted to correct a pattern of unequal treatment of women and minorities. As the definition of protected class has expanded, it has become clear that everyone belongs to some protected class, and may be protected from discrimination by federal law. One that is prohibited by Title VII, but is very distinguishable, is the national origin discrimination protection. It forbids discrimination based upon an individual’s birthplace, ancestry, culture, linguistic characteristics (common to a specific group) or accent. According to the text American-born employees also are protected against discrimination on the basis of their American origin (Bennett and Hartman, 2019).
In Franklin’s circumstance, he has experienced national origin discrimination and he has been treated differently in comparison to his coworkers who are of the same ancestry as the business owners. There are two ways in which a person may be treated differently, or “disparately,” for purposes of discrimination actions: (1) disparate treatment, and (2) disparate impact. The difference between the two has to do with intent and effect. Franklin could file a discriminatory complaint with the EEOC stating that disparate treatment occurred due to national origin being the motivating factor.
In order for Franklin (plaintiff) to make a prima facie case, and have the court rule in his favor, he must provide sufficient evidence to the court proving he is part of a protected class and was subjected to an adverse action. In efforts of showing proof, Franklin should provide strong proof that the employer tended to disfavor him because he is of English ancestry and favored his coworkers Jin Pan and Dongping Jiang because they are of a different national origin and were treated differently. It is imperative that Franklin provide strong evidence that supports disparate treatment so that his inclusion in a protected class is not the only factor in his case.
There are many discrimination lawsuits filed against companies for national origin discrimination. According to the EEOC’s lawsuit, EEOC v. AMI Mechanical, 2018, the plumbing and mechanical contractor, employed both Hispanic and white employees at the Yorkshire Apartments project in Thornton, Colo. AMI assigned non-white Hispanic employees to work in a confined space containing human waste and dangerous gas levels at a rate of nearly 4:1 compared to white non-Hispanic employees.
When one of the employees, Joseph Muniz, complained about the conditions and discrimination, his supervisor, Earl Jones, stated he would fire the Hispanic employees and “hire a bunch more Mexicans” to replace them. AMI also stated in Muniz’s termination form that he had “caused a lot of problems” on the project, was permanently dismissed, and would not be recommended to other employers. AMI further destroyed, or failed to preserve, daily work reports for the Yorkshire Apartment Project that are relevant to the question of whether discrimination occurred there. The agency seeks back pay, compensatory and punitive damages, along with injunctive relief to prevent and address any future discrimination. Similarly, to Franklin’s case, Muniz was treated differently in comparison to the white employees and was terminated.
Another case is Equal Employment Opportunity Commission v. Antonella’s Restaurant & Pizzeria, Inc.,2017, the Hispanic employees, were subjected to a hostile work environment by the restaurant’s co-owner on an almost daily basis. The harassment included slurs based on their national origin, requiring employees only speak English in the workplace, and less favorable treatment regarding leave and sick days. EEOC further alleges that a Hispanic employee was fired in retaliation, after complaining about his mistreatment. The court ruled that Antonella’s will pay $50,000 for the discrimination victims. Also, the decree provides for extensive safeguards to prevent future discrimination by implementing anti-discrimination policies, training and problem-solving procedures. Although the Hispanic employees were treated less favorably in regards to leave and sick days, Franklin was treated less favorably with his tardiness compared to his other compeers.
As the defendant, China Lights restaurant can attempt to prove a legitimate non-discriminatory reason (LNDR). If China Lights identify with LNDR they must produce evidence that the plaintiff had violated its tardiness policies and/or has failed to perform his duties in a satisfactory manner. They should also be able to (1) provide proof of past administrative actions that were taken against other employees who are of the same Chinese ancestry; (2) provide legitimate reason as to why administrative actions were not taken against Franklin’s coworkers who were within the same violation. Maybe China Lights would argue that the employees had modified schedules.
Management Tips
China Lights restaurant current policy states that employees will be dismissed if they are late for work twice, in a 55-day period. However, the company should adjust the tardy policy by implementing a probationary period for employees who are occasionally late for work (no more than twice within the 55 days). China Lights should also set a procedure for reporting late (if employees know they are going to be late, they should know who to report to). The policy should also include a non-discrimination policy so the rules and consequences are applicable to all employees. If China Lights employees are able to have a modified schedule, it should be made known to all employees and a copy of the schedule should be posted in a location accessible to all employees. The company should make sure that all documentations of employees’ performance reviews are up to date and well documented. In addition to maintain records, the restaurant should keep track of all employees’ lateness. Keeping records means China Lights will be able to use them as evidence when they speak to the employee in question, showing the employee facts rather than voicing opinions about their tardiness. Lastly, the organization should create an exit policy. When China Lights decides to terminate an employee, it should be done privately and they should inform the employee of the reasons as to why they have made the decision. This will also give China Lights managers the opportunity to answer any questions the employee may have and avoid potential law suits.
Reference
Bennett-Alexander, D., & Hartman, L. (2019). Employment Law for Business (9th ed., pp. 351).
New York: McGraw-Hill.
EEOC v. AMI Mechanical, Inc., Case No. 1:18-cv-01609-MEH. Retrieved
April 2, 2019 from https://www.eeoc.gov/eeoc/newsroom/release/6-28-18.cfm (Links to an external site.)
EEOC v. Antonella’s Restaurant & Pizzeria, Inc., Case No.7:15-CV-07666. Retrieve
April 4,2019 From https://www.eeoc.gov/eeoc/newsroom/release/6-22-17…
https://www.eeoc.gov/laws/types/nationalorigin.cfm (Links to an external site.).
Second Discussion
Analysis
The issue for this case is whether or not Franklin has a claim under Title VII for national origin discrimination. Title VII under the Civil Rights Acts of 1964 is a federal law that prohibits discrimination in employment on the basis of sex, as well as race, color, national origin, and religion. According to the EEOC, “National origin discrimination involves treating employees unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background.” The law prohibits discrimination when it comes to any aspect of employment including hiring, firing, and any other term or condition of employment. The statue section 703(a) states that “it shall be unlawful employment practice for an employer to discharge any individual or discriminate against any individual because of the individual’s national origin,” (Bennett-Alexander & Hartman, 2019). The Immigration Reform and Control Act (IRCA) prohibits employers with at least four employees to discriminate in hiring and firing workers because of their citizenship status. I am assuming that China Lights employs 15 or more employees in this case.
In the EEOC v. E&T Foods, LLC d/b/a Compare Foods, the EEOC alleged that the company terminated the employment of three Non-Hispanic employees in the store’s meat department because of their race/national origin and replaced them with Hispanic workers. The three employees claimed they were deprived of their equal employment opportunities and that E & T Foods engaged in unlawful employment practices at its other locations. E & T Foods denied all allegations but ended up settling with the parties involved.
Franklin can claim that the restaurant owners, who are of Chinese ancestry, discriminated against him based on his national origin (White) by treating his fellow co-workers, who are also of Chinese ancestry, differently with preferential treatment. Although, all parties are U.S. citizens. Preferential treatment is showing favoritism to one person or more people that is not directly related to their work abilities. As in the EEOC v. E&T Foods, LLC case, Franklin can also claims his equal opportunity rights were deprived. In order to prove that discrimination occurred on the basis of national origin Franklin will need to show if applicable that:
- He is a member of a protected class.
- He is qualified for the position for which he is employed.
- China Lights made an employment decision against him.
- The position was filled by someone who was not a member of the protected class.
Franklin may have a hard timing proving a prima facie disparate treatment case claiming national origin discrimination because (1) he broke company policy, (2) he needs documentation proving that Jin and Dongping were tardy multiple times and that China Lights were aware, and (3) that Jin and Dongping never received punishment from their tardiness.
Once Franklin has made a prima facie case, China Lights must present some evidence of a legitimate, nondiscriminatory motive for the challenged action. China Lights’ defense against the national origin discrimination claim be would that they fired Franklin for breaking company policy. Franklin was tardy to work twice with 55 days in between each tardy day, but the rule clearly states that if an employee is late more than once during a 60 day period the employee will be dismissed. China Lights would also need to show why the employees were treated differently, if there is a bona fide occupational qualification reason behind the treatment, and if they really knew that Jin and Dongping were late everyday. Although, the owners and fellow co-workers are of the same national origin and the business is a Chinese restaurant they are still supposed to abide by Title VII nondiscrimination principles in hiring and firing its employees. If China Lights believes they can win the case they can file a motion of summary judgement.
Next, Franklin will have to present additional evidence to challenge China Lights’ legal and nondiscriminatory reason. Franklin will have to show that China Lights had a pretext for the illegal discrimination and/or provide more evidence of the China Lights’ discriminatory motive which is the third step in the McDonnell Douglas burden-shifting framework (Major, 2012). According to Merrick v. Hilton Worldwide, “The Ninth Circuit Court of Appeals has made it more difficult for employees to survive summary judgment by implicitly requiring them to produce more evidence of discrimination to survive the third step of the McDonnell Douglas burden-shifting framework.”
I believe the Court would side with Franklin in this case. I think it would be highly unlikely that China Lights could prove a legal and nondiscriminatory reason for firing Franklin when the other employees were constantly breaking company policy and no action was taken upon them.
References
Bennett-Alexander, D., & Hartman, L. (2019). Employment law for business (9th ed., pp. 325). New York: McGraw-Hill.
EEOC v. E & T Foods, LLC d/b/a Compare Foods, Civil Action No 3:06-cv-318, W.D.N.C).
Equal Employment Opportunity Commission. (n.d.). National origin discrimination. Retrieved from https://www.eeoc.gov/laws/types/nationalorigin.cfm
Major, Ruth I. (2012, May). McDonnell Douglas: the oft-misunderstood method of proof. The federal lawyer. 14-16. Retrieved from http://www.fedbar.org/Resources_1/Federal-Lawyer-M…
Merrick v. Hilton Worldwide, Inc. et al, No. 3:2013cv01568 – Document 29 (S.D. Cal. 2014).
Management Tips
To prevent national origin discrimination, all employers should have a well-written and detailed discrimination policy that employees must sign acknowledging that they understand the policy. This policy should be strictly enforced by everyone. Training should be made available along with other types of educational information needs to be provided to all employees regarding discrimination and their rights. Employers, like China Lights, should take steps to prevent national origin and other claims of discrimination in hiring, recruiting, firing, and promoting employees. China Lights should take discrimination claims seriously. They should investigate complaints as soon as they are made and take appropriate remedial action based on the results of their investigation.
