Question

Ann is interviewing for job at GRG, Inc.. Bob is the company's hiring manager and is in charge of conducting interviews.

Ann informs Bob that she is in the United States for the next year with an appropriate visa. The job that she is seeking has been advertised as a short-term position to fill a vacancy pending the return of a permanent employee. Without question, Ann is qualified for the position and will remain in the country for a time after the permanent employee returns.

Bob inquires about Ann's national origin after she informed him about the visa. Specifically, Bob asked Ann what country she is from and how many languages she speaks. Bob also made a casual remark about her country's history of "civil unrest" and "history of abusive treatment to women". Bob further informed Ann, during the interview, that he likes to keep up with "foreign affairs" and "contemporary world events". Ann was not offended by Bob's comments or inquiries at the interview.

Ann was not hired for the position. She learned that GRG, Inc. hired a Caucasian female, approximately the same age as she who was born and raised in Illinois. Ann has filed charges of discrimination based on ancestry / national origin with the EEOC. What are her arguments? What are the applicable defenses that GRG, Inc. can raise? Who wins / why not?

Answer 1

Q: What are her arguments? What are the applicable defenses that GRG, Inc. can raise? Who wins / why not?

A: Ann has a justified grievance and a legitimate complaint on the ground of discrimination which she has filed with the Equal Employment Opportunity Commission (EEOC). Ann has been discriminated against under the National Origin discrimination violation under the federal law. Harassment can include derogatory comments or remarks against a candidates or an employees country of origin, accent or ethnicity and trying to show it in bad light.
In this case, Ann can argue that without question she was suitably qualified for this position and since it was a short term position she was entitled to work in the U.S. as she had the necessary appropriate visa/work permit to work and was going to remain in the country for one year even after the short term position term had ended and so Ann was eligible to be recruited. She can further argue that Bob who conducted her interview representing GRG, Inc. as it's hiring manager, had made derogatory comments on her country of origin and ethnicity and crossed the line committing harassment and a violation under the anti-discriminatory law.

Further, the Immigration Reform and Control Act of 1986 (IRCA) prohibits any discrimination pertaining to recruitment and selection, termination, referral fees for eligible candidates based on any individuals citizenship or immigration status.

GRG, Inc. in its defense can raise that they needed a candidate for this job vacancy who was a local individual who was born and raised in Illinois and try to raise it under the Bona fide Occupational Qualifications. Further, GRG, Inc. can raise that Bob had not committed any violation of the anti-discrimination law as Bob had made a casual remark about her country of origin and Ann was not offended during the interview and had not objected to Bob at any time during the interview.

Ann may not have raised any objection because she was eager to be employed by GRG, Inc. and did not want to offend Bob at that time during the interview which would have caused Bob to reject her outright and was hoping that GRG, Inc. would find her suitable and hire her. So, this defense of GRG, Inc. will most probably be dismissed and not be allowed. An employer or its hiring manager is in a position of authority and knows its control and power over an employee or an interview candidate and needs to act responsibly and with discretion and cannot afford to make casual remarks which may be out of line / irrelevant to the interviewed post and work duties and responsibilities for the advertised position and therefore can be hurtful to the listener or candidate or employee.

Thus, Ann's complaint with the EEOC is most likely to be found tenable and upheld by the EEOC and she would win in this case.