April 11, 2011

Disparate impact discrimination against U.S. citizens?

Has the Equal Employment Opportunity Commission ever sued employers over their disparate impact discrimination against American citizens?

By definition, H-1B visa hiring constitutes 100% disparate impact discrimination against American citizens. A decade ago, American citizen Dana A. Rothrock filed a complaint with the EEOC pointing out that he couldn't get hired for a computer job at the Texas Department of Criminal Justice, which was using H-1B visas to hire Filipinos and other foreign nationals, since he was an American.

On May 28, 2003, the EEOC explained that they were rejecting his complaint because [here and here]:
While Title VII does not prohibit citizenship discrimination per se, citizenship discrimination does violate Title VII where it has the "purpose or effect" of discriminating on the basis of national origin. 
Employment discrimination against a national origin group includes discrimination based on a group of people sharing a common language, culture, ancestry, and/or other similar social characteristics. American is not a national origin group as defined by Title VII of the Civil Rights Act, as amended. ... 
Roberto Coronado
Federal Investigator

Shouldn't the EEOC's official motto be "Who? Whom?"


Anonymous said...

"American is not a national origin group as defined by Title VII of the Civil Rights Act, as amended. ... "

Roberto Coronado
Federal Investigator"

So take that, Gringo!

al harb ... al haak said...

I seem to remember a long time ago there was a case in El Paso, where the Mexican Americans were suing a factory for hiring and favoring Mexicans. I don't know the disposition of the case, I think it was the early 80's.

Whiskey said...

9th Circuit overturned Arizona's SB1070. Citing Federal policy as grounds.

Whites are now officially third class citizens.

Anonymous said...

I'd say "The law is an ass", but the law is a good deal more malicious and destructive than any ass.

Anonymous said...

It's official!

In those circumstances, where citizenship requirements have the purpose or effect of discriminating against an individual on the basis of national origin, they are prohibited by title VII.

Big bill said...

Fascinating! So perhaps a disparate impact case could be sustained against Indian bodyshops based on a religion theory (Christian v. Hindu v. Muslim) or a national origin theory (Euro-Am, or English-Am or German-Am v. Indian) or even a race theory (White v. Indian).

It sounds like the guy whose complaint got sh!tcanned was guilty of perhaps nothing more than inartful pleading.

Anyone have other thoughts?

Mr. Anon said...

So "american" is not a national origin. I take that to mean that America is not a nation. So why do I pay taxes to support the illigitimate government of this non-existant country and - by extension - to support Mr. Coronado in his job?

By the way, is there any job title more ominous and pregnant with maliciousness than that of "Federal Investigator"?

jody said...

"9th Circuit overturned Arizona's SB1070."

only parts of it - the parts they have an ideaological problem with. this is as expected. check the history of this particular court.

they're wrong. normally i don't talk about legal cases, but they could not be getting this more wrong, as far as intellectual honesty about law goes. the language of the arizona law was carefully and meticulously written to match federal law, so that every time a judge finds it to be "unconstitutional", they deliberately put themselves in the position of saying that federal laws on the topic are unconstitutional. meanwhile, utah recently passed a state law that directly contradicts federal law on the topic. so, the justice department finds itself in the strange position of attacking arizona for upholding federal law, while allowing utah to circumvent federal law.

it is, for instance, already federal law that legal aliens are required to carry identification on them at all times, and that various authorities have the right (even the obligation in many cases) to ask them to produce it on the spot. every time a judge rules that arizona can't have authorities do this, they are saying that US federal law is also unconstitutional and that aliens do not ever have to carry identification or obey any authority figure when they ask for identification.

so far, no judge who hasn't liked the contentious parts of SB1070 has been able to articulate why, in a way that makes legal sense. this is because they can't. so they are still simply saying "I don't like it, so it's not legal." the first judge to rule on it sounded like an idiot, she couldn't even explain why she decided it should not be law. these judges here are doing some nice handwaving, and going in the supremacy clause/pre-empting the field direction, which was already anticipated ahead of time by the people who wrote the law.

if this goes to the supreme court, the court will, probably, split along it's normal 5-4 ideological lines and rule in favor. not necessarily of course. they might elect to not even hear the case, and if they do hear it, they may rule against. but, the conservative judges will probably be able to easily see SB1070 is totally within the bounds of established law, since they generally have some brainpower. a couple of the liberal judges basically don't have any brainpower now and will primarily be ideological representatives for the rest of their stay in the supreme court, so it will be automatic against votes from them.

ben tillman said...

Yes, obviously, the use of H-1b workers is a flagrant violation of federal laws prohibiting employment discrimination on the basis of race or national origin, and the case is a slam-dunk in front of any jury. You don't need the EEOC's imprimatur to take your case to court.

eh said...

In the mid-90s I worked at a company in 'Silicon Valley' that was owned by someone who would be labeled a Chinese-American, although he seemed pretty Chinese to me at the time (his English was good enough). What I noticed right away was that nearly every single employee was ethnic Chinese, except for a few strategic exceptions: the director of Engineering, and the director of Marketing. Outside the owner (who was also the President), these were the two positions with the most outside contact. I wondered at the time what the EEOC would think or do about that situation, which of course was not a coincidence. My conclusion at the time was: absolutely nothing.

One aspect of H1-B that is not reported or appreciated: What it's like as a 40ish white guy to walk into an interview for a tech job, at what is ostensibly an American company, only to see that 2/3 to 3/4 of the people you will talk to are ethnic Asians -- Chinese, Indians, etc. You have no chance. You will not be hired. You find yourself wondering why you were invited for an interview. The answer might lie in the ethnicity of the people running HR.

Dry Roated Peanuts said...

@eh - where I am meets those demographics, and I had no problem getting hired (I'm white). I'm a programmer though and we're in real demand these days. If they were truly biased, you'd think the place would be mostly Chinese, or mostly Indian.

TGGP said...

I work in software in Chicago. Lots of my co-workers are immigrants, but most are still white (including a few of the furriners). A lot more south than east asian. Couple blacks and I think just one hispanic, and judging by appearances not Mestizo. Never felt bothered by H1B.

ATBOTL said...

"Never felt bothered by H1B."

That's the problem with white people. They don't care what happens to other white people until it happens to them.

Every other race is hyper sensitive to how anything and everything affects their people as a whole.