PART 5220 JOINT RULES OF THE HUMAN RIGHTS COMMISSION AND THE DEPARTMENT OF HUMAN RIGHTS: NATIONAL ORIGIN DISCRIMINATION IN EMPLOYMENT : Sections Listing

TITLE 56: LABOR AND EMPLOYMENT
CHAPTER XI: HUMAN RIGHTS COMMISSION
PART 5220 JOINT RULES OF THE HUMAN RIGHTS COMMISSION AND THE DEPARTMENT OF HUMAN RIGHTS: NATIONAL ORIGIN DISCRIMINATION IN EMPLOYMENT


AUTHORITY: Implementing Section 2-102 and authorized by Sections 7-101 and 8-102 of the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, pars. 2-102, 7-101 and 8-102).

SOURCE: Adopted at 10 Ill. Reg. 18796, effective October 25, 1986.

 

Section 5220.100 Definition of National Origin Discrimination

 

a) Under section 1-103(K) of the Illinois Human Rights Act, Ill. Rev. Stat. 1985, ch. 68, par. 1-103(K), "national origin" means "...the place in which a person or one of his or her ancestors was born."

 

b) An individual has been discriminated against on the basis of "national origin" if the individual has been denied equal employment opportunity because of national origin or because the individual has physical, cultural or linguistic characteristics or a name which identifies that person's national origin.

 

Section 5220.200 Unlawful Considerations

 

A person is the victim of "unlawful discrimination" on the basis of national origin if the person is discriminated against because of animosity directed towards individuals of a particular national origin group. A person need not be a member of the national origin group in order to be protected under the Illinois Human Rights Act, Ill. Rev. Stat. 1985, ch. 68, par. 1-101 et seq.; "the Act". The following subsections provide examples of the rule:

 

a) An individual is protected by the Human Rights Act if he or she is discriminated against because of marriage to or association with persons of a national origin group.

 

b) An individual is protected by the Human Rights Act if he or she is discriminated against because his or her name or spouse's name is associated with a national origin group.

 

c) An individual is protected by the Human Rights Act if he or she is discriminated against because of membership in schools, churches, temples, or mosques generally used by persons of a national origin group and the discriminatory action is motivated by the connection between the school, church temple, or mosque and the national origin group.

 

d) An individual is protected by the Human Rights Act if he or she is discriminated against because of membership in, or association with, an organization identified with or seeking to promote the interests of a national origin group, and the discriminatory action is motivated by the connection between the organization and the national origin group.

 

Section 5220.300 The Bona Fide Qualification Exception

 

The exemption stated in section 2-104(A) of the Human Rights Act, which allows discrimination if national origin is a bona fide occupational qualification will be strictly construed. The burden is on the employer to prove that no person of a particular national origin can perform the job in an acceptable manner.

 

Section 5220.400 Citizenship Requirements

 

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 the Human Rights Act.

 

Section 5220.500 Pre-Employment Inquiries

 

An employer, employment agency or labor organization may not require a job applicant to disclose his or her national origin or ancestry, unless it can show a bona fide occupational qualification. Likewise, an employer, employment agency or labor organization may not require a job applicant to disclose his or her citizenship where a citizenship requirement would have the purpose or effect of discriminating against a person on the basis of national origin. In deciding whether a citizenship requirement is having the effect of discriminating against individuals on the basis of national origin, the Human Rights Commission and the Department of Human Rights will consider whether the percentage of the employer's workers of a particular national origin group is similar to the percentage of qualified workers of the same national origin group found in the geographical area from which the employer draws his or her workers. An analagous analysis will be applied to charges brought against employment agencies and labor organizations which have citizenship requirements. Nothing in this section shall be construed to require an employer, employment agency or labor organization to employ individuals who are not able to lawfully work in the United States (See Section 5220.600). It is not a violation of the Act for an employer, employment agency or labor organization to uniformly inquire of all applicants whether they are able to lawfully work in the United States.

 

Section 5220.600 Undocumented Workers

 

The Illinois Human Rights Act does not require an employer, employment agency or labor organization to employ any individual who is not able to lawfully work in the United States. The protections of the Act will, however, extend to all individuals, regardless of their ability to work lawfully in the United States. Accordingly, individuals who are not able to lawfully work in the United States will be allowed to file charges with the Illinois Department of Human Rights ("The Department"), and said charges will be processed in accordance with the law.

 

Section 5220.700 Suspect Employment Criteria

 

The use of selection criteria which have a disparate impact on individuals of a national origin group is unlawful, unless the criteria are justified by business necessity. It is not a defense to show that the total selection process does not have a disparate impact. The following selection criteria may have a disparate impact on national origin groups:

 

a) Height or weight requirements;

 

b) Fluency in English requirements, such as denying employment opportunities because of an individual's foreign accent or inability to communicate well in English; and

 

c) Training or education requirements which deny employment opportunities to an individual because of his or her foreign training or education, or which require an individual to be foreign trained or educated.

 

Section 5220.800 Speak English Only Rules

 

a) An employer may not have a rule requiring that employees speak only in English at all or at certain times where the rule has the purpose or effect of discriminating against individuals on the basis of national origin. It is a defense to an allegation that a "speak English" rule has a disparate impact on a particular national origin group to show that the rule is justified by business necessity.

 

b) It is common for an individual whose primary language is not English to inadvertently change from speaking English to speaking his or her primary language. Therefore, if an employer believes it has a business necessity for a speak-English-only rule at certain times, the employer should inform its employees of the general circumstances when speaking only in English is required and of the consequences of violating the rule. If an employer fails to effectively notify its employees of the rule and makes an adverse employment decision against an individual based on a violation of the rule, the Human Rights Commission ("the Commission") and the Department will consider the employer's application of the rule as evidence of discrimination on the basis of national origin.

 

Section 5220.900 Harassment

 

a) An employer has an affirmative duty to maintain a working environment free of harassment on the basis of national origin.

 

b) Ethnic slurs and other verbal or physical conduct relating to an individual's national origin constitute harassment when this conduct:

 

1) has the purpose or effect of creating an intimimating, hostile or offensive working environment;

 

2) has the purpose or effect of unreasonably interfering with an individual's work performance; or

 

3) otherwise adversely affects an individual's employment opportunities.

 

c) An employer is responsible for its acts and those of its agents and supervisory employees with respect to harassment on the basis of national origin regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. The Commission and the Department will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity.

 

d) With respect to conduct between fellow employees, an employer is responsible for acts of harassment, in the workplace on the basis of national origin, where the employer, its agents or supervisory employees, becomes aware of the conduct, and fails to take immediate and appropriate corrective action.

 

e) An employer may also be responsible for the acts of non-employees with respect to harassment of employees in the workplace on the basis of national origin, where the employer, its agents or supervisory employees, becomes aware of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the Commission and the Department will consider the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.