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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

Can Employers Discriminate Against American Employees In Favor Of Employees From Another Country?

liscense plate that reads discrimination

Under Title VII of the Civil Rights Act of 1964 (Title VII), it is an unlawful employment practice of an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual, with respect to his or her compensation, terms, conditions, or privileges of employment because of such individual’s race or national origin.  As explained by the U.S. Supreme Court in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015), this provision in Title VII forbids “disparate treatment” of, or “intentional discrimination” against, employees on the basis of race or national origin.

Although the term “national origin” is not defined in Title VII, courts have uniformly adopted the U.S. Supreme Court’s definition of national origin as set forth in Espinoza v. Farah Manufacturing Company., Inc., 414 U.S. 86 (1973).  In Espinoza, the Supreme Court defined a national origin as the “country where a person was born, or, more broadly, the country from which his or her ancestors came.”  Under the Supreme Court’s definition of national origin, when an individual was born in the United States, his or her national origin includes the United States.  Consequently, Title VII protects an individual born in the United States against national origin discrimination based on his or her American national origin.   As determined by the U.S. District Court for the Northern District of Illinois in Thomas v. Rohner-Gehrig & Co., 582 F.Supp. 669 (N.D. Ill. 1984), employment discrimination “based merely on country of birth, whether that birthplace is the United States or elsewhere, contracts the purpose and intent of Title VII, as well as notions of fairness and equality.”      

Employer “Wanted A Korean In That Position”

Plainly reinforcing the holding in Thomas, the recent decision by the U.S. Eleventh Circuit Court of Appeals in Jefferson v. Sewon America, Inc., No. 17-11802 (11th Cir. June 1, 2018) illustrates that employers are forbidden from discriminating against American employees in favor of employees from another country.  In that case, Jerberee Jefferson (Jefferson) claimed that her former employer, Sewon America, Inc. (Sewon), failed to transfer her to a more advantageous position because of her African-American race and American national origin in violation of Title VII.

Jefferson worked for Sewon as a clerk in its finance department.  While Jefferson was still in her probationary period of employment, she approached a manager in the information technology department, an employee named Chung, and expressed interest in transferring to an information technology position in his department.  Chung told Jefferson that he supported the transfer and that Jefferson could soon switch departments.  However, Chung later informed Jefferson that “he could not offer her the job position” because she lacked the necessary experience and because a higher-ranked manager “said that he wanted a Korean in that position.” 

Jefferson then lodged a discrimination complaint with the human resources manager.  The human resources manager told Jefferson not to “take it personally” and to “brush it off.”  One week after she made the discrimination complaint, Sewon fired Jefferson.  Jefferson received no written warning or final warning before her termination, despite a “progressive discipline policy” that uses a system of “verbal warnings,” a “written warning,” and a “final warning before an employee is terminated. 

Remark Constitutes Direct Evidence Of Discrimination   

The trial court dismissed Jefferson’s claim that she was not transferred to the information technology position because of her race and national origin.  In doing so, the trial court ruled that Jefferson could not establish that the proffered reason for not transferring her—that she was unqualified for the position—was a pretext for discrimination.  On appeal, the Eleventh Circuit reversed the trial court’s dismissal and reinstated Jefferson’s discrimination claim.

Unlike the reversed trial court, the Eleventh Circuit determined that the remark that a higher-ranked manager “wanted a Korean in that position” constituted direct evidence of discrimination.  Direct evidence of discrimination, the appellate court explained, is evidence that “proves the existence of discriminatory intent without inference or presumption.”  “In contrast,” the court of appeals pointed out, circumstantial evidence of discrimination “only suggests, but does not prove, a discriminatory motive.” Because direct evidence of discrimination, unlike circumstantial evidence of discrimination, is considered “smoking gun” evidence of discrimination, direct evidence of discrimination is sufficient, standing alone, to require a jury trial on an employee’s discrimination claim.

The Eleventh Circuit found that the remark that a higher-ranked manager “wanted a Korean in that position” constituted direct evidence of discrimination under its precedent because the remark was a “blatant remark, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor,” and thus proved a discriminatory motive.  In other words, the remark, if believed by the jury, proved that Jefferson was not transferred to the information technology position because she is not Korean. 

Because Jefferson presented direct evidence of discrimination, the Eleventh Circuit explained, the trial court was prohibited from dismissing her discrimination claim even if Sewon presented evidence of a non-discriminatory reason for not transferring her to the information technology position.  Moreover, the court of appeals observed, because she presented direct evidence of discrimination, Jefferson was not required to establish that the proffered reason for not transferring her to the information technology position was a pretext for discrimination.  Thus, the Eleventh Circuit concluded, because Jefferson produced direct evidence of discrimination, the trial court improperly disregarded binding precedent and committed legal error by dismissing her discrimination claim.

Free Consultation With Marion County Discrimination Lawyers 

Based in Ocala, Florida and representing employees throughout Central Florida, we have substantial experience litigating national origin discrimination cases.  If you have been the victim of national origin discrimination or have questions about being discriminated against because of your American national origin, please contact our office for a free consultation with our Marion County, Florida national origin discrimination lawyers.  Our employee rights law firm takes national origin discrimination cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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