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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| August 20, 2018

WHAT’S IN A NAME? ETHNIC NAMES CAN COST APPLICANTS A JOB

QUESTION: I am a highly qualified, intelligent woman with a degree from a first-class public university. My friends, with similar backgrounds and resumes, have all found jobs. I can’t even get an interview. I think the reason could be my name – my family is of Chinese descent, and my parents gave me a traditional Chinese name. Is it legal to discriminate against someone because of his or her name?

ANSWER: Under Title VII of the Civil Rights Act, it is illegal to discriminate in employment – and that includes the hiring process – on the basis of race, color, national origin, sex, or religion. Refusing to consider applicants with names that indicate national origin, race or religion is discrimination on the basis of those protected factors.

Despite this, discrimination based on names is endemic. Numerous studies have found that people with distinctly African-American names, Asian names, Hispanic names or Arab names are consistently less likely to be interviewed than applicants with similar resumes and “white-sounding” names. The gender of a name also affects the prospect of moving from application to interview: In one study, professors were more likely to meet with doctoral candidates with male names than they were to meet with candidates whose names were clearly female.

Recently, an African-American woman claimed she received an email from the company to which she had applied that stated she had been rejected because the company had a policy against accepting applications from people with “ghetto” names. (The company denied that the email was an official communication expressing its policy.) The fact is, most employers are not foolish enough to have a policy that encourages discrimination. And that is part of the reason bringing a lawsuit for name-based discrimination is hard to do.

To claim an employer’s policy had a “discriminatory impact” on a class of applicants, a plaintiff has to be able to point to an actual policy. And, as noted, it’s very unlikely any employer will have such a policy. A plaintiff can also argue that discrimination based on an ethnic-sounding name is a form of “discriminatory treatment,” but to prove that, the plaintiff has to show the employer intended to discriminate. As many of the studies on name-based discrimination agree, rejecting applicants based on their names is a form of unconscious bias: There is no intent to discriminate. Without a showing of intent, a successful lawsuit may be problematic.

Bias not only hurts qualified job applicants, it also harms companies. A human resource worker’s unconscious decision to take a pass on an applicant with a “non-white” name may stymie a company’s desire for a diverse workforce and deny it access to the best applicants. To get around this problem, some firms have started using a name-blind hiring process in which human resources recruiters see only the applicant’s address, background, and employment history. In 2017, for instance, the United Kingdom implemented a name-blind system for university admissions.

It isn’t impossible to bring a lawsuit against a company for failing to consider applicants whose names reveal their national origin or race, but it is difficult to do so. Before you decide to take on a potential employer, you might want to discuss the strength of your claim with an experienced attorney.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.

Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinnlegal.com

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