Is this discrimination in hiring?

February 27, 2020 4:01 PM

There is a “spa” that advertises two things (among others), in my local free weekly: (1) “All American Staff”, and (2) “Now Hiring”. Aside from the shudder factor, is this advertisement legal? Is it actionable in any way? Mainly hypothetical, but it grinds my gears every week.
posted by ftm to Law & Government (7 answers total)

Best answer: You may be able to get legal information specific to your jurisdiction from the state government agency tasked with enforcing labor and employment laws, and report the advertisement as a potential violation. According to Legal Voice, which is based in Washington:

What Is Employment Discrimination?

Employment discrimination means that you are being treated unfairly by your employer in a way that violates a federal, state, or local law. The unfair treatment must be based on characteristics like your age, gender, race, religion, etc. The unfair treatment can include things like hiring, firing, pay, job assignments, promotions, training opportunities, etc.

Some examples of employment discrimination:

* A hotel refuses to hire a qualified job applicant because of the applicant’s perceived race or national origin.

[...] Title VII of the Civil Rights Act of 1964 (Title VII)
This federal law applies to private employers with 15 or more employees and also to federal employees. It prohibits these employers from discriminating against employees or job applicants on the basis of race, color, religion, national origin, sex, or gender identity.

[...] The Immigration Reform & Control Act of 1986 (IRCA)
The IRCA prohibits employment discrimination on the basis of national origin and citizenship in the hiring and firing of employees.

posted by katra at 4:19 PM on February 27, 2020 [1 favorite]

If the location listed in your Metafilter info is correct, this page, detailing South Carolina's Human Affairs Law, includes "national origin" as something that can not be used discriminatorily.
posted by hanov3r at 4:26 PM on February 27, 2020 [1 favorite]

Best answer: The scope of enforcement seems unclear from the South Carolina Human Affairs Commission's website (although it could still be worthwhile to contact them), but they also link to the federal EEOC website, which includes this contact information:

The Immigration Reform and Control Act of 1986 (IRCA) prohibits discrimination on the basis of national origin by smaller employers (with 4 to 14 employees). Employers with 4 or more employees (and recruiters and referrers for a fee) are also prohibited from discriminating on the basis of citizenship status; discriminating in the employment eligibility verification process; and retaliating under IRCA.

Discrimination charges under IRCA are processed by the Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices:

1-800-255-7688 (voice for employees/applicants),
1-800-237-2515 (TTY for employees/applicants),
1-800-255-8155 (voice for employers), or
1-800-362-2735 (TTY for employers), or
http://www.usdoj.gov/crt/osc.

posted by katra at 4:42 PM on February 27, 2020 [1 favorite]

The business may be clumsily claiming that their staff is all documented, not that they are all American. (Besides, Americans can have other origins outside of the US).

In that case, they may be trying to advertise they are a legitimate business- they pay taxes and don’t use trafficked labor.
posted by Monday at 4:57 PM on February 27, 2020 [25 favorites]

I agree with Monday. Many people have an "ick" reaction when they see a new spa open because of the stereotype of "Asian Massage Parlors" - which are an actual thing that exists - and prostitution. The employees of these spas are often trafficked women who are forced to work long hours doing gross things. And many are from overseas and are being held hostage by their immigration status and/or paperwork.

I bet the person who wrote the message only intended to imply that their business isn't taking advantage of people from other countries, but they wrote it very clumsily.
posted by tacodave at 6:00 PM on February 27, 2020 [15 favorites]

Or they might be an icky place that's trying to use "All American girl" as marketing.
posted by The corpse in the library at 11:10 AM on February 28, 2020 [2 favorites]

Or, they are overtly advertising that their hiring practices are in violation of federal law, which prohibits discrimination against noncitizens, and perhaps hoping that customers will just ignore and minimize their "ignorance" (even though ignorance of the law is no excuse) and prospective employees who otherwise have a legal right to work there won't bother to apply.
posted by katra at 3:19 PM on February 28, 2020 [1 favorite]