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Meeting of November 13, 2013 - National Origin Discrimination in Today's Workplace

Written Testimony of Thomas A. Saenz, MALDEF

Good morning chair and commissioners, and thank you for this opportunity to address the nation's critical need to focus upon ensuring a fair and non-discriminatory workplace for the increasing number of workers who are national-origin minorities. My name is Thomas A. Saenz, and I am President and General Counsel of MALDEF, the Mexican American Legal Defense and Educational Fund, a national civil rights legal organization with its headquarters in Los Angeles, and regional offices in Chicago, San Antonio, and Washington, D.C. Our mission is to promote the civil rights of all Latinos living in the United States through community education, policy advocacy, and litigation. We concentrate our work in four program areas - education, employment, immigrant rights, and voting rights. Through our employment program, we have litigated numerous cases challenging employment discrimination in federal and state courts, and we have challenged unfair and unsafe working conditions and payment practices. In its now 45-year existence, MALDEF has represented hundreds of thousands of employees in individual and class action litigation.

Now is the time for action to support national-origin minority workers, as they increasingly serve as the backbone of our economy. Where discrimination, under any guise, prevents hiring or promotion, or creates an unfair workplace environment, not only workers, but their families, and indeed the entire economy are harmed. According to the 2010 Census, undoubtedly an undercount, nearly one in six persons living in the United States today is Latino, meaning that Latinos now constitute the nation's largest racial/ethnic minority group. Moreover, Latinos are now represented in significant and growing numbers in every region of the nation and nearly every state. When MALDEF was founded in south Texas in 1968, the Latino population in the United States could be accurately described as regional, concentrated in the southwest, with additional population pockets in Chicago, New York City, and South Florida. There is no question that nearly half a century later, Latinos are a true nationwide minority group.

Of course, the growth and dispersion of the Latino population is expected to continue at a high rate. And Latinos, a younger population than every other racial/ethnic population group in the country, will comprise an ever-increasing proportion of our nation's workforce. While one in six Americans is Latinos, one in five public school students from Kindergarten through twelfth grade nationwide is Latino, and one in four children of preschool age in the United States today is Latino. As this young population completes education and transitions to the workforce, it will bring the same expectations as others - of fair compensation, fair promotional processes, and a safe working environment. Those expectations will be dashed for too many of these young people unless we insist upon adequate compliance and enforcement of our nation's basic civil rights and employment laws. The EEOC can and must play a preeminent leadership role in renewing the focus on protecting these and other workers, on whose success in the workplace our national future depends.

As you are aware, there has been a longstanding problem of ensuring that victims of national-origin discrimination come forward, pursue charges and claims, and secure relief for themselves, and concomitantly provide a deterrent to other wrongdoers. Many unscrupulous employers believe that national-origin minority workers are substantially less likely to complain and to seek and obtain relief to which they are entitled from unlawful discrimination and other legally-proscribed actions in the workplace. There are certainly real obstacles that some national-origin workers face, but perception and stereotype have taken on a force of their own, resulting in real targeting of national-origin minority workers by discriminator-employers. For the Latino community, this longstanding issue has been exacerbated in recent years as a result of the national focus on immigration as a policy issue, and by the demographic growth of the Latino community. Particularly as a number of localities and states have adopted legislation seeking to regulate immigration and to restrict the rights of certain immigrants, and as the media coverage, both traditional and online, has incorporated stereotyped discussion of the Latino community, employment decision-makers inclined to discriminate against Latino workers have been emboldened.

These more recent developments are consistent with the Latino community's historical experience of discrimination in different social settings, and with the Latino community's history of struggling with the legal system's ability to address successfully the discrimination as so experienced. In essence, the Latino community has struggled to fit its lived experience into civil rights enforcement frameworks developed for somewhat different circumstances. This history reflects the ongoing phenomenon of race-related discrimination on the basis of proxies for race -- characteristics and attributes like language, accent, citizenship, and assumed immigration status -- and the legal system's frequent and ongoing struggle with addressing such discrimination.

Indeed, the entire concept of "national origin" as a category in anti-discrimination law very likely stems from a discriminating state actor changing its characterization of the Latino community in order, in part, to avoid the application of law protective of civil rights that had recently developed through African American litigants challenging prevailing social practices in the South. Hernandez v. Texas, 347 U.S. 475 (1954), the Supreme Court's first decision addressing anti-Latino discrimination, was a challenge to the systematic exclusion of Mexican Americans from juries in Texas. Texas asserted that the Mexican American community could not rely on the rule establishing a presumption of unconstitutional discrimination when the historical record shows that a racial group has not been included in juries for a significant period of time. Texas based its contention on the assertion that Mexican Americans were "white" and, though Mexican Americans were historically excluded, history did not demonstrate that whites had not participated on juries. The Supreme Court rejected the canard, holding that any distinct social group could rely on the rule. In effect, the Latino community had to grapple sixty years ago with an assertion that discrimination against a national origin group was legally distinct from race discrimination.

Despite that unanimous 1954 decision, in other cases since Hernandez, the Supreme Court has demonstrated its reluctance to recognize that discrimination based on proxy characteristics for Latino identity should be treated as legally indistinct from discrimination based explicitly on race. For example, in Hernandez v. New York, 500 U.S. 352 (1991), the Court refused to recognize a jury challenge based on language as equivalent to an impermissible race-based challenge. And, in Espinoza Farah Manufacturing, 414 U.S. 86 (1973), the Supreme Court famously concluded that under Title VII, national origin discrimination does not encompass discrimination by a private employer on the basis of citizenship. Most recently, in Arizona v. United States, 132 S. Ct. 2492 (2012), the Supreme Court, while striking down the bulk of Arizona's notorious anti-immigrant statute, SB 1070, permitted a provision to go forward, pending further challenge, that directs police to investigate any person suspected of being undocumented, even though the most likely basis for such suspicions by untrained local officers would be stereotypes incorporating national origin.

These cases demonstrate, through the decisions of the highest court, the legal system's struggle with effectively addressing national origin discrimination when it comes in the guise of discrimination on the basis of a proxy for race. Many of these cases have been misread as permitting more than they do, but such faulty interpretation only further demonstrates why it is so critically important that the EEOC guide and advise employers that unlawful national origin discrimination is not rendered permissible through use of a proxy characteristic closely associated with a particular national origin group or groups.

Of a piece with the phenomenon of proxy-based discrimination is the problem of discrimination on multiple bases, at least one of which is closely associated with national origin. Thus, Latina women experience discrimination that is different from that experienced by white women or Latino men. Latino LGBT employees experience treatment on the job that is different from that experienced by white LGBT employees or other Latinos. In some cases, there are many different factors at work in placing certain Latino employees at greatest risk of the most damaging discriminatory treatment. For example, MALDEF has recently represented multiple Latino gay HIV-positive employees with an immigrant background; in these cases, we believe that each and all of those characteristics contributed to the discrimination that they experienced. It is very important that the EEOC address this issue of multiple-basis discrimination with employers.

The latest proxy for national origin that MALDEF has observed in practice through discriminatory employment patterns may simply be characterized as a newer filter or cover for longstanding practices of anti-Latino discrimination. It also emanates from two somewhat contradictory employer inclinations. On the one hand, unscrupulous employers desire Latino workers because they believe that they are less likely to file or pursue complaints. On the other hand, these employers' discriminatory impulses, often fueled by stereotyped assumptions, lead them to want to limit Latino employees' impact and association with their business. The end result is a prevalent pattern of job segregation in which Latinos are hired and segregated in back-office positions and are effectively barred from public-contact jobs.

This problem has become ever more prevalent as the service industry has provided a growing share of employment in the United States. As jobs have moved from the factory to the mall, there is a growing and significant race-linked segregation between those out front interacting with the public and those toiling in back. In restaurants, this has meant that Latinos are hired as cooks, busboys, and dishwashers, but generally not as wait staff or hosts. In hotels, this has meant that Latinos serve as maids, laundry staff, and maintenance, but generally not at the front desk, the concierge station, or as managers. In retail, this has often meant that Latinos work as stockers and cleaning staff, but not as cashiers and sales clerks. To the extent they are ever articulated, the purported justifications for such employment segregation generally have no relation to job requirements except by reference to third parties - customers or corporate image-makers.

Although customer preference seems to have been widely rejected in the context of racial discrimination, the picture is less clear with respect to national origin discrimination. It is worth noting that such assumptions about customer preference privilege one segment of the customer base, particularly as national-origin minorities form an ever-larger proportion among United States consumers. Still, the new substitute for assumed customer preferences is business image. By adverting to business image, still implicitly tied to a purported appeal to customers, employers may attempt to avoid the stigma and disingenuousness of suggesting that "my customers want me to discriminate."

MALDEF has had experience with this issue. Ten years ago, MALDEF initiated -- together with other civil rights groups, private plaintiff firm lawyers, and the EEOC -- a nationwide class action against the retailer Abercrombie & Fitch. The company denied our contentions, and the case was ultimately settled with a significant class recovery and injunctive relief in the form of a multi-year consent decree. Yet, the pattern that we perceived and articulated in filing the suit, was of a company using its iconic advertising images of "all American" models, often in various stages of disrobement but otherwise clad in Abercrombie clothing, as a means of projecting what amounted to an all-white image, and then using the in-store depictions of those models as a mechanism to enforce job segregation and hiring discrimination. There were numerous anecdotes about corporate officials advising store managers to hire more employees who look like the models depicted on the walls of the store. These visits would be followed by layoffs of minority employees, or their being confined to the stockroom. As it turned out, the case also came to encompass gender discrimination as the company also employed a disproportionate number of men.

What is of particular note today is the reaction to the suit and plaintiffs' theory of the case in the media. A number of commentators and reporters - at least some of whom actually should have known better - gave serious attention to the notion that the First Amendment protected both the "image" or "look" projected by the company in advertising, as well as the employment practices to reinforce that "look" in the stores themselves. This reaction demonstrates the magnitude of the EEOC's task in educating and guiding employers that the pursuit of an "image" or "look" cannot justify employment practices that discriminate against national-origin minority employees.

As I have noted, the heightened public attention to issues of immigration, coupled with prevailing stereotypes about the Latino community in relation to immigration, may well lie behind some of the job segregation and hiring discrimination in service industry employment. This places ever greater importance on clear guidance about customer preferences, business image, and national-origin employment discrimination.

There are certainly actual harms to many employees from this kind of job segregation, including compensation differentials, lost promotional opportunities, and lost opportunities of other kinds. Yet, from a policy perspective, one of the most significant harms is that it inures the public to such segregation and discrimination and reinforces stereotypes about the abilities, skills, and proper "place" of Latinos in United States society. This, in turn, can lead to perpetuated patterns of "acceptable" discrimination and create a real problem of limited expectations among Latino children, a significant part of the workforce of tomorrow.

MALDEF's employment litigation has historically focused on two major objectives: first, establishing precedent and fostering deterrence of emerging patterns of discrimination, and second, rooting out discrimination in those employment positions with collateral impacts. With respect to this latter goal, for example, MALDEF has often focused on police officers, firefighters, and teachers because of the effect that incumbents in these positions have as role models and in shaping interactions with members of the general public. There are equivalent positions in private employment, and certainly the relegation of Latino employees to back-office employment is a significant concern in this regard.

With respect to precedent in the area of developing patterns of discrimination, many of the issues I have already discussed are matters of concern. The phenomenon of discrimination on multiple bases, particularly where some of those bases are formally proscribed as discriminatory and other bases are less than fully proscribed, is a concern. As I have noted, this often leads to differential treatment of Latino employees as compared to others who share the same characteristics. And, while the issue has been of concern for decades, traditional forms of discrimination by proxy remain a matter of concern. In the employment arena, language discrimination has received significant attention, but there is still a strong need for clarification that such discrimination is proscribed in nearly all circumstances, with the most significant exception being where fluency in English is a genuine and legitimate job requirement.

Strong caution with respect to assertions of such a requirement, and of the means used to test fluency, is appropriate. There are varying levels of language fluency, and the EEOC should ensure that employers accurately assess the level of fluency required for the job and that testing is unbiased and calibrated to the correct level of fluency. English-only rules, often tied without any strong demonstration of the truth of the assertion to customer and co-worker preferences, should also trigger caution. Guidance should directly caution that customer preference and co-worker preference are not legitimate grounds for national-origin discrimination. Accent discrimination, particularly in the current national atmosphere around immigration policy, remains a matter of concern, ripe for clear guidance.

With the growth of the immigrant population nationwide, it is important conversely to recognize that fluency in a specific second language other than English may well be a legitimate and genuine job requirement. In those circumstances, provided that the requirement is well-supported and well-defined, it is important to guide employers that seeking candidates (and compensating them for an additional skill), who have the required fluency, does not constitute unlawful employment discrimination.

The growth and dispersion of the Latino and Asian American communities in recent decades, and projections of continued growth, present a tremendous opportunity for the EEOC to provide clearer guidance and to develop a deeper involvement in the issues of national-origin employment discrimination. MALDEF looks forward to working with you in this ongoing endeavor. Thank you.