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I decided recently to sign up as a seller on Amazon.com. The first step of the registration process however, asks about the applicants "Country of Birth".

Is this legal?

That seems to completely irrelevant and an opening for discrimination. I think the country will be worse off if in the course of ordinary business, people were asked about their countries of birth. In America, we're all supposed to be American (though I can understand in certain very sensitive national security situations)

If anyone can comment on the legality of this, I would appreciate. As a follow-up question, I would be curious to know if Amazon can in any way be sued for asking this and what the potential risk/reward of such a lawsuit would be?

Amazon Seller Registration Form

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    For example, Arnold Schwarzenegger's country of birth is Austria, which prevented him from trying to become US president. IMO opinion he would have been a much better choice due to having more brain, more brawns, better ethics, and being an adult.
    – gnasher729
    Nov 15 '20 at 16:12
  • Did you ask Amazon about this? What did they say?
    – phoog
    Nov 15 '20 at 22:58
  • Yes, I did ask Amazon about it. They sent a canned response saying that it's to ensure a safe marketplace for all vendors and customers. Nov 16 '20 at 0:39
  • @gnasher729 Perhaps, though Terry Crews has more experience playing a President.
    – Unfair-Ban
    Nov 18 '20 at 15:26
  • Studoku, Schwarzenegger has significantly more experience being a senator of California, and the guy is seriously intelligent.
    – gnasher729
    Nov 18 '20 at 15:32
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+100

TL;DR: You are likely to have a case in California, Colorado, New Mexico, New York, and Oregon. Read this report for details and, if you've got the balls, file a lawsuit.

First of all, let's make the scope clear: this matter concerns just bare contractual relationship as opposed to employment. Amazon sellers are no employees of Amazon. They are clients. That is, they sign up and receive a long-term service. I therefore answer this question rephrased as "Can one refuse to accept a new client based on their country of birth?"

The answer would have been a very straightforward "No" if it concerned a brick-and-mortar service like a physical shop or restaurant. These places are called "public accommodations" — where discrimination on the basis of national origin is prohibited at federal level.

Amazon is an online service. Are these "public accommodations" for the purposes of Title II of the Civil Rights Act of 1964 or related state-level laws? As per this report, it varies from state to state. In California, Colorado, New Mexico, New York, and Oregon they are, which is the basis for your would-be lawsuit(s) in these states. You may have luck in some other states too, but definitely not in Florida or New Jersey.

Before proceeding with a lawsuit you would need to rule out any possibility that the absence of your country of birth in the select box is unintentional (i.e. not a bug or mere omission). For this you would need to obtain a letter/message directly from Amazon, similar to the one cited in Dave D's answer.

Last question is, in the event the select box included all countries, would the mere presence of it in the form still amount to discrimination (as opposed to mere collection of information)? In this case, to prove your case you would probably have to be refused and somehow prove that the refusal was caused by your country of birth. This is hard because, again, the service sign-up form is no job interview.

I would be curious to know if Amazon can in any way be sued for asking this and what the potential risk/reward of such a lawsuit would be?

Anyone can sue anybody. Fill in the forms, pay the application fees and whoah — you are already suing! How far will your suit go and, particularly, whether it will kick back is a very fact-specific question depending on too many variables. If you are not confident that you can research it yourself, you need to talk to not just a lawyer, but your lawyer.

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  • "Before proceeding with a lawsuit you would need to rule out any possibility that the absence of your country of birth in the select box is unintentional (i.e. not a bug or mere omission). For this you would need to obtain a letter/message directly from Amazon, similar to the one cited in Dave D's answer." Can you explain what you mean by this? Just to be clear, including your country of birth is a requirement Nov 24 '20 at 18:27
  • "whether it will kick back" what do you mean by "kick back"? Nov 24 '20 at 18:28
  • They are not clients since Amazon pays them rather than the reverse. They are more like vendors providing a service to Amazon. Nov 24 '20 at 18:39
  • @DavidSchwartz most of them pay Amazon, for Amazon's "fulfillment" services Nov 24 '20 at 22:59
  • @CodyBugstein That is not true. Amazon purchases products from vendors which Amazon sells to customers. Vendors do not pay for Amazon's services. Amazon pays vendors to pack and ship. You can see the agreement here. Nov 24 '20 at 23:06
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The EEOC states that national original discrimination in employment is illegal, which is supported by 28 CFR Part 44 (discriminate means "the act of intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility"). See also Title VII of the Civil Rights Act of 1964:

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

codified at 42 USC 2000e–2.

The internet widely advises that asking such questions is illegal. The EEOC has a more nuanced view of the matter as articulated here: they say

We recommend that you avoid asking applicants about personal characteristics that are protected by law, such as race, color, religion, sex, national origin or age. These types of questions may discourage some individuals from applying, may be viewed suspiciously by some applicants, and may be considered evidence of intent to discriminate by the EEOC. If you do not have this information when you decide who to hire, it may be easier for you to defend your business against a hiring discrimination complaint.

Before reaching a conclusion, we should check what an employee is (42 USC § 2000e(f)), namely:

an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.

This just tells us that in writing the law, Congress left it somewhat open what an "employee" is.

An Amazon seller is, on the face of it, not an employee of Amazon, instead, a seller is an independent contractor. Of course that is a legal question that can't just be decided superficially, see for example California's AB5 (but even under that law, a seller is not an employee). As articulated by SSA

The common law control test is the basic test, using the common law rules, for determining whether a relationship exists between the worker and the person or firm that they work for. Under the common-law test, the employer has the right to tell the employee what to do, how, when, and where to do the job

If the Dept. of Labor or the IRS determine that you are (would be) an employee, then this is illegal discrimination, otherwise it is not. Since you are not paid a wage, the prospects for being deemed an employee are extremely dim. The EEOC gives this guidance on the distinction, with a very long list of examples which in general support the position that a vendor is an independent contractor and not an employee.

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    So you can discriminate against a contractor but not against an employee? Nov 18 '20 at 17:18
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    Yes, that is the distinction. I'm leaving out the possibility that state laws could be stricter, but even then I don't know of a state that applies such laws to contracts.
    – user6726
    Nov 18 '20 at 17:23
  • A seller on Amazon is neither an employee or a contractor. A seller is someone who sells products on Amazon's store.
    – Dave D
    Nov 18 '20 at 17:36
  • @DaveD True. I guess a seller is a "customer"? Or perhaps a business partner ? Nov 18 '20 at 17:43
  • @user6726 So at a federal level, I could ask a contractor about his religious beliefs and make my business decision based on his answer ? Nov 18 '20 at 17:43
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A seller on Amazon is neither an employee or a contractor. From Amazon's FAQ for Selling on Amazon:

What is selling on Amazon?

Selling on Amazon is a program that lets individuals and businesses sell their products and inventory on in [sic] Amazon's stores, like Amazon.com.

The form you are completing is to apply to sell products on Amazon's stores.

I can't find the specific reason that Amazon asks for both citizenship and country of birth. However, Amazon is an international company that is required to follow the laws of all countries in which it transacts business. It is possible to purchase products from outside one's own country. Amazon takes on liability to regulate its marketplaces on an international basis and adhering to those regulations may require knowing both country of citizenship as well as country of birth of the seller of a product.

Here is a question asked by someone who was unable to register as a seller because of their country of citizenship or birth:

Amazon description of lack of support for Russia/Azerbaijan

In this message from Amazon they indicate that they cannot register someone who was born in or is a citizen of Russia or Azerbaijan.

While I can't identify the specific reason that Amazon asks this question, in order to adhere to the regulations for selling internationally it seems that it could be quite reasonable or even necessary to ask the question.

A seller on Amazon is someone who sells their products via Amazon's marketplace. Employment discrimination laws would have no bearing as the seller is not an employee.

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    Wow interesting find. How does Amazon not get sued for that? If someone walks into my shop and I say "sorry I hear you have a Russian accent, I can't do business with people born in Russia, even though you are a US citizen now", how would I not get sued? Nov 18 '20 at 20:16
  • can you please share the link to where you found that response? Nov 18 '20 at 20:23
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    @CodyBugstein - there's a significant difference between refusing to sell to someone who enters your shop and refusing to carry the products of another vendor. Using your analogy, Amazon is the shop and you, a potential seller, are a vendor. In order to sell your products through Amazon you have to meet certain requirements. My answer is based on the supposition that there are international regulations that Amazon must meet and the information requested is necessary to meet those regulations. Given Amazon's model it is highly unlikely they're doing it in order to discriminate illegally.
    – Dave D
    Nov 18 '20 at 20:48
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    @CodyBugstein Employment and accommodations have special laws that prohibit discrimination while many other areas just don't. You can quit your job because you don't like having a male boss. You can refuse to go to a local restaurant because the manager is Mexican. It's wrong but not illegal. As far as I know, there are no regulations that prohibit national origin discrimination when a business makes its choice of suppliers. Though I can't for the life of me think of any legitimate reason why Amazon would care what country a vendor was born in. Nov 24 '20 at 23:10
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    @Trish I'm not aware of any US sanctions that are based on a person's country of birth. Can you cite any that would apply to, say, a naturalized US citizen who came here as a child after being born in some other country? Nov 25 '20 at 21:00
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If you look under Help/Policies/Program Policies/Countries accepted for seller registration, both Russia and Azerbaijan are included, so you can reside there and sell in the US. Iran and North Korea are excluded (presumably due to sanctions).

If I had to guess, both the form asking about citizenship and the helpdesk answer Dave D. found are due to employee incompetence rather than company intent.

Perhaps there are other countries where Amazon sells and where, due to local laws, asking about the country of birth makes sense, and so this feature unintentionally made it into the interface for US sellers.

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  • Russia is under sanctions by the US for the 2014 Ukraine incidents.
    – Trish
    Nov 25 '20 at 18:41
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    @Trish Those are not sanctions on countries, but only on some persons from those countries. Further, there are no sanctions on Azerbaijan any of its citizens.
    – MWB
    Nov 25 '20 at 19:19
  • trade.gov/knowledge-product/russia-sanctions - its against anyone who works in some fields.
    – Trish
    Nov 25 '20 at 19:34
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    If a person is born in North Korea and becomes an American citizen, he remains under some form of sanctions? Nov 25 '20 at 19:44
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    @CodyBugstein The sanctions on N. Korea apply to the country itself. What citizenship you have is irrelevant. What matters is that you are in N. Korea. You could be a US-born US citizen.
    – MWB
    Nov 25 '20 at 19:53
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Well realistically, it is your choice to sign up for Amazon. They're not making you give them your country of birth. They're telling you "If you want to use our services, you have to give us your country of birth," rather than "We're forcing you to give us your country of birth either way." It's like Apple taking 40% of developer income through iOS apps. They aren't a monopoly. They aren't the only company that sells smartphones. They say "If you use our service, we're taking 40%." So, no. It would not be legal. And as far as suing them, I'm not sure how far you would get with that. What they're doing is completely legal.

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