Russia’s War in Ukraine No Excuse for National Origin Discrimination
Article updated as of 4/7/22:
As Russia’s invasion of Ukraine continues to develop, U.S. employers may face challenges in navigating how to respond when employees make inappropriate statements related to the international conflict. Political acrimony in general can be disruptive to work operations or a company’s reputation. Such acrimony can also lead to legal claims, particularly if employees feel stigmatized or subject to knee-jerk assumptions about their political beliefs based on their ethnic background. Employers should therefore keep the following legal issues in mind when considering how to deal with political or divisive speech related to Russia’s war in Ukraine.
- Federal and State Laws Prohibit National Origin Discrimination
Title VII of the Civil Rights Act of 1964 (Title VII) and many state laws prohibit discrimination on the basis of national origin in all aspects of employment. National origin discrimination involves treating applicants or employees differently in their terms or conditions of employment 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 (even if they are not). National origin discrimination also can involve treating applicants or employees differently in their terms or conditions of employment because they are married to or associated with a person of a certain national origin. Discrimination can occur even among individuals of the same national origin.
So, while Russia may be the aggressor in Ukraine, U.S. employers must ensure their workplaces are free of any prejudice to Russian employees based on their national origin or ethnicity. Similarly, employees’ political beliefs regarding Putin or Russia’s actions in Ukraine should not be presumed based on the employees’ nationality or ethnic background. Employers may want to pay attention to concerns that Russian employees are being subjected to disparate treatment or harassed in the workplace, and employers must not ignore or fail to respond when they learn of employees who have engaged in offensive comments or behavior related to an employee’s national origin.
- State Laws May Prohibit Discrimination Against Employees Who Engage in Lawful, Off-Duty Conduct
The First Amendment’s right to freedom of speech does not apply to private sector employees, and thus does not protect them from discipline by their employers if they engage in inappropriate comments, including those made off-duty for example on social media. However, a minority of states and localities specifically prohibit discrimination in employment based on an employee’s off-duty, lawful conduct. Still others protect employees who participate in legitimate, peaceful political protests. Thus, employees who engage in support, protest or other action relating to the war in Ukraine, whether in person or on social media, would be protected if their employer is subject to these types of lawful conduct laws. Given the complexities that can arise from disciplining an employee for off-duty conduct, employers are well-advised to seek counsel before taking adverse action or terminating an employee due to off-duty conduct.
- The Immigration and Nationality Act Prohibits National Origin Discrimination in the Hiring and Recruiting Process
The Immigration and Nationality Act (“INA”) prohibits discrimination in the hiring and recruiting process based on a person’s national origin or citizenship. 8 U.S.C. § 1324b(a)(1); 28 C.F.R. § 40.200(a)(1)(i). Specifically, the INA prohibits national origin and citizenship discrimination related to recruitment, hiring decisions, termination decisions, retaliation, and I-9 employment verification documentary practices. The Department of Justice’s Immigrant and Employee Rights Section (“IER”) has broad authority to investigate claims of national origin and citizenship discrimination under the INA.
Employers with more than three employees may not recruit and/or hire applicants of only certain national origin or citizenship, e.g., only hiring Ukrainian foreign nationals. Additionally, such employers may not prohibit applicants of certain national origins or citizenships. Lastly, employers should review their I-9 employment verification practices to ensure that they comply with all relevant rules and regulations in light of the anticipated influx of persons who have been granted refugee status, asylee status, and temporary protected status, including for example Russian and Ukrainian Nationals.
Our team has extensive experience reviewing companies’ policies and procedures relating to hiring practices, auditing I-9 records, and assessing their workforce’s identity and work authorization documents to protect against government inspection and potential penalties and reputational damages.
If you need assistance dealing with a difficult workplace issue involving an employee’s national origin or ethnicity, contact your Quarles & Brady attorney or:
- Christopher Nickels: (414) 277-5519 / christopher.nickels@quarles.com
- Tyler Roth: (414) 277-5765 / tyler.roth@quarles.com
- Andrew Kuntz: (202) 780-2638 / andrew.kuntz@quarles.com