PSFCU Can Require Language Competence, Not Ethnicity, Attorneys Say
Oskar Mielczarek, the former CEO of the 78,000-member, $1.5 billion Polish and Slavic Federal Credit Union appears to have acted in accord with federal law when he tried to hire non-Polish staff at the Brooklyn, N.Y., credit union, according to human resource lawyers familiar with Mielczarek's suit against the credit union's board of directors.
Mielczarek has alleged the board retaliated against him when it fired him after one year as CEO because, he said in court filings, he refused to go along with the credit union's policy of hiring only Poles as credit union staff.
Human resource lawyers familiar with the case say Mielczarek's opinion that the credit union's hiring policy violated federal law was likely correct.
“An employer may not legally prefer members of an ethnic group in hiring,” wrote John Myers, a partner at Eckert Seamans' Pittsburgh, Pa., office in response to a reporter's query. “This would be a violation of Title VII of the Civil Rights Act of 1964, of Section 1981 of the Civil Rights Act of 1866 and of most states' equal employment opportunity laws.”
Myers added, “An employer may condition employment on one's ability to speak a particular language, if it is shown that this skill is a business necessity – such as a teller whose clientele predominantly consists of persons who speak only that language – even though this job requirement would have a disparate impact on non-members of the ethnic group.
“However, a person who is not of that ethnic group but is able to speak the language would, of course, be entitled to equal consideration. If the skill, not the ethnicity, is the criterion for employment, then the practice is not illegal.”
Calvin House, a partner with the Pasadena, Calif., firm of Gutierrez, Preciado & House, LLP, agreed and noted that the credit union did not appear to have hired for positions that would qualify from a narrow exception that federal law allows.
“Although Title VII allows discrimination based on national origin if it results from a bona fide occupational qualification (BFOQ) that is reasonably necessary to the normal operation of the business, the courts generally do not recognize an employer's preference for the national origin of those it serves as a BFOQ,” House wrote in an email about the case. “An example of a legal ethnicity-based BFOQ would be a requirement that only a Filipino actor could be hired to play a Filipino role in a movie.”
Kelly Kolb, an attorney with the Fort Lauderdale, Fla., firm Fowler White Boggs said a BFOQ defense in this case would be a difficult one to mount because the credit union would have to show that there was something about working at PSFCU that only Poles could do.
“It’s really a swing-for-the-fences defense because you are essentially admitting that the your hiring is discriminatory, but that you should be allowed to do so for some exceptional reason,” Kolb said.
PSFCU issued a statement Tuesday through attorney Dena Epstein of Jackson Lewish LLP in Morristown, N.J., that read: "The Polish & Slavic Federal Credit Union is an equal opportunity employer which prohibits any and all forms of discrimination in its workplace. All qualified applicants receive consideration for employment without regard to race, color, religion, gender, gender identity or expression, sexual orientation, national origin, genetics, disability, age, or veteran status. As such, we take Oskar Mielczarek’s discrimination allegations very seriously and plan to vigorously defend the case. As this is a pending litigation, we have no further comment at this time."
Mielczarek has not publicly commented on the lawsuit.