A nail technician says she was refused a job opportunity because she is not Vietnamese. Employment experts explain why the nail salon my not be legally liable.
SAN ANTONIO — A nail technician is speaking out about the hiring practices at a local salon. Brittney Herron says she was refused a job opportunity based on her nationality.
Herron told KENS 5 she has been doing nails for the past eight years and recently moved from Ohio to San Antonio. As she was searching for work, Herron says she came across a job post from Enchanted Nails. The ad read, “Need Nail Technician Urgently!!!” The post said priority would be given to “young female technicians,” and said the store was in a “white American area with high tips.”
“In my mind I’m like, ‘Maybe they are an older couple and can’t handle the traffic,’” said Herron. “’They want someone young that can keep up, know what’s going on with today’s style.’”
The expected pay was between $6,500 and $8,000 per month, so Herron decided to apply. She says she texted the number listed on the post, asking if the salon was “still looking for a nail tech.” The owner responded, “Are you Vietnamese?” When Herron said, “No,” the owner replied, “I’m sorry, we [are] just hiring Vietnamese only.”
“For me to see the response, I was super blown away,” said Herron. “Because I didn’t even know things like that existed in black and white, like so open. I’m like, ‘What? In this day in age?’ You can’t pick a category; it’s based on talent, it’s a job.”
Over the phone, the owner’s brother translated for his sister and said she apologizes for the “misunderstanding.”
“She doesn’t speak English very well,” said Nick Lee. “So, she can’t explain well the whole situation of the message.”
Lee said his sister wanted to communicate with the new employee efficiently; something she has struggled with in the past with English-speaking nail technicians.
“She didn’t mean to hurt other people’s feelings or anything like that,” said Lee. “She doesn’t mean anything [offensive] because we work here with all nationalities. It’s just hard for her to communicate with the staff to tell them what needs to be done and what needs to be serviced.”
Herron felt deprived of a possible job opportunity, but also said the salon missed out on a great candidate.
Lawrence Morales is an employment attorney at The Morales Firm who does not represent either party. He says there are state and federal laws protecting applicants from discrimination.
“Based on national origin, race, disability, age, gender,” said Morales. “One of first questions will be whether there is direct evidence that national origin, gender or age was a motivating factor in the decision not to hire this person. If the answer is yes, and there appears to be direct evidence based on the text messages and the post, really the only exception for employer is to show that the national origin, gender or age was a bona fide occupational qualification of the job. It’s a very narrow exception.”
Michael Green directs the Workplace Law Program at Texas A&M University of Law in Fort Worth.
“If the customer base and location is in an area with a Vietnamese community, they could say it’s a bona fide occupational qualification that they need people to speak Vietnamese,” said Green. “But they can’t say you need to be Vietnamese. I also saw the ad said it was located in a white area, so that argument wouldn’t apply.”
Morales says the job post and response could violate the rights of three protected classes, unless the salon is considered a “small business.”
“If you have less than 15 employees, the discrimination laws just don’t apply to those employers,” said Morales. “The reason for that is, just frankly, whenever there is legislation, there are certain compromises. In those two laws, Congress and the Texas Legislature made the decision that it just wouldn’t apply to certain small employers.”
“Under Title VII, to sue for race, sex, national origin, disability, you have to have 15 employees,” added Green. “For age, you actually need 20 employees. A lot of that has to do with federal regulation that you need to have a sufficient number of workers to be what is referred to as ‘being in commerce.’ Texas law follows that. There are some states that have some laws where you only need one or two employees [to sue for discrimination].”
According to the U.S. Equal Employment Opportunity Commission, businesses with only one employee are still required to provide equal pay to men and women.
Herron was left upset by what happened and says she filed a complaint with the EEOC. However, legal experts say the EEOC only investigates companies with 15 or more employees.
KENS 5 learned the federal and state discrimination laws may not apply to Enchanted Nails because the owner says she has five employees and was seeking a sixth.