Articles Posted in National Origin discrimination

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This week, the U.S. Third Circuit Court of Appeals resurrected a class action lawsuit which alleges that the Southeastern Pennsylvania Transportation Authority (SEPTA) violated the Fair Credit Reporting Act (FCRA) when it refused to hire applicants based on their criminal history reports without first giving the applicants a chance to review the reports.  The FCRA regulates how companies may use consumer reports for a variety of purposes, including hiring.  And the FCRA has a broad definition of the term “consumer report” which includes criminal history reports.  Under the FCRA, employers must provide copies of criminal history reports to applicants and give them notices about their rights under the FCRA before they refuse to hire them based on their criminal history reports.

SEPTA argued that the plaintiffs in this case suffered no actual harm from SEPTA’s violation of the FCRA because the plaintiffs do not dispute the accuracy of the criminal history reports and the crimes they committed disqualified them from employment.  The Third Circuit rejected this argument, in part, because the FCRA not only protects an applicant from suffering harm due to an erroneous consumer report; it also gives him the opportunity “to advocate for [the report] to be used fairly—such as by explaining why true but negative information is irrelevant to his fitness for the job.”

The trial court had dismissed the case and, as such, this Third Circuit victory breathed new life into the case.  Ossai Miazad, the lead attorney for the plaintiffs, said, “this is a significant victory for our clients, who first challenged SEPTA’s unfair background check hiring policies and practices in 2016.  This ruling is an important affirmation that a defendant like SEPTA cannot block access to the court and cannot avoid scrutiny of their actual employment practices that serve to unfairly deny employment to individuals like our clients who have paid their debt to society.”

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Fifty years ago, in July 1964, President Lyndon Johnson signed the Civil Rights Act of 1964 into law.  Through this landmark piece of legislation, the federal government sought, among other things, to dismantle abhorrent “Jim Crow” laws in the South which rendered African Americans second class citizens.

A strong minority of legislators in Congress fought bitterly to try to defeat the Civil Rights Act.  They argued that the Civil Rights Act would unconstitutionally usurp state rights and impair individual liberty.  Thanks, in part, to the work of civil rights activists like Dr. Martin Luther King and John Lewis, who helped the entire nation and its members of Congress to see the horrors of segregation and Jim Crow, enough members of Congress banded together to pass the law.

Interestingly, before the Civil Rights Act passed, opponents to the law added an amendment to bar sex discrimination in employment.  This tactic backfired.  Title VII of the Civil Rights Act, which prohibits employment discrimination, passed with not only landmark protections against race discrimination, religious discrimination, and national origin discrimination, but also with landmark protections against sex discrimination.

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Records from the Maine Department of Corrections (Maine DOC) reportedly show that Maine DOC disciplined eight officers at the Maine State Prison this year for making ethnic slurs against another officer. Maine DOC also reportedly disciplined a supervisor who failed to take corrective action when he became aware of the ethnic slurs. Despite these disciplinary actions, the officer targeted by this harassment could still potentially seek compensation for any damages he or she suffered as a result of the harassment because the supervisor failed to take prompt corrective action. Furthermore, if the officer targeted by the harassment experiences any retaliation, such as retaliatory harassment, because of his or her complaint about the ethnic slurs, he or she could also seek compensation for damages caused by that retaliation.

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On March 22, 2013, the First Circuit Court of Appeals rejected the Mohegan Council of the Boy Scouts of America’s appeal that it filed following a trial in which a jury found that it discriminated against a former employee on the basis of his religion and national origin. The former employee, Kamal Aly, is an Egyptian-American Muslim who worked for the Boy Scouts as a District Executive. The jury found that the Boy Scouts denied Mr. Aly the ability to advance to the position of Senior Executive Director because of his religion and national origin.

According to Mr. Aly, the Boy Scouts failed to send him for training that he needed in order to obtain a promotion to the position of Senior Executive Director. The Boy Scouts claimed that it did not send Mr. Aly for this training because of issues with his job performance. However, Mr. Aly’s performance reviews were relatively good. The Boy Scouts also claimed that it did not send Mr. Aly for training because of complaints it had received from some volunteers. However, Mr. Aly had previously reported to his supervisor that these volunteers were discriminating against him because he was Muslim. The volunteers’ discriminatory treatment came on the heels of Mr. Aly’s efforts to recruit new Boy Scout members and volunteers at local area mosques. The Boy Scouts never investigated Mr. Aly’s complaint of discriminatory treatment. The Boy Scouts also claimed that it did not send Mr. Aly for training because of budgetary constraints but this reason did not seem plausible because Mr. Aly offered to pay for the training himself and forgo a pay raise when he returned. Also, the Boy Scouts sent someone else for the training that Mr. Aly requested despite its supposed budgetary constraints.

Since the Boy Scouts’ explanations for its actions could be seen as excuses that lacked credibility, the First Circuit held that the jury acted reasonably when it inferred that discrimination motivated the Boy Scouts’ decision to deny Mr. Aly career advancement opportunities. This is a rather common way for employees to prove that their employer’s discriminated against them. Employers rarely admit that they discriminated against an employee. Instead, they offer untrue excuses to cover up or rationalize their discrimination. Experienced employment lawyers are good at proving these excuses are just a “smoke screen” for discrimination.