National Origin Discrimination: What You Need to Know
Diversity is intrinsic to the identity of the United States as a nation of immigrants, yet discrimination against individuals based on where they come from continues to exist. Despite federal laws clearly prohibiting national origin discrimination in the workplace, many practices and policies continue to illegally limit employment opportunities for persons of different backgrounds, immigration statuses and levels of English fluency.
What Is National Origin Discrimination?
National origin discrimination is the unfavorable treatment of employees or applicants based on their national origin, be it a particular country or a more general part of the world. This includes treating someone unfavorably because of his or her ethnicity or accent. It also applies to treatment based on a person’s perceived national origin or ethnicity. For example, if an employer treats an employee negatively on the basis that the employer believes the employee to be Irish, then this would be a case of national origin discrimination, even if the employee is not in fact Irish. National origin discrimination can also extend to treating an employee or applicant unfavorably because of his or her association, such as by marriage, with persons or groups connected or perceived to be connected to a particular national origin. An employer’s own national origin has no bearing in cases of national origin discrimination. It is possible for an employer to be guilty of committing national origin discrimination against an employee even when both parties share the same national origin.
National Origin Discrimination and the Law
Title VII of the Civil Rights Act of 1964 protects employees and applicants against national origin discrimination in all aspects of employment. The Immigration Reform and Control Act of 1986 prohibits employment discrimination based on citizenship or immigration status. Together, these federal protections cover all cases involving employers with four or more employees.
Discriminatory Practices and Policies
Unfavorable treatment in an employment context involves actions related to hiring, promotions, termination, compensation, assignments, benefits and any other terms or conditions of employment. Examples include the following:
- Refusing to hire applicants based on their national origins
- Firing an employee because of his or her national origin
- Segregating employees by area or function based on their national origins
Even policies that are neutral on their face may be deemed discriminatory if they have the practical effect of placing persons of particular national origins at a disadvantage. For example, if a job has a minimum height requirement that disproportionately disqualifies persons of particular national origins, such a policy could be ruled discriminatory and therefore illegal unless the requirement could be proven to be relevant to essential job functions and work safety.
An “English-only rule” is an example of a facially neutral policy that, although applied universally to all employees, specifically disadvantages persons of particular national origins. Although court decisions have been split on this issue, the Equal Employment Opportunity Commission’s position is that employers may only require employees to use English when it can be proven necessary for the job. For example, such a rule may be permissible in an emergency environment where people must communicate in a common language in order for operations to proceed safely and efficiently. If such a rule is determined to be necessary, employers must notify employees about the rule and any consequences for violations. No disciplinary actions may be taken against employees over violations they committed prior to their receiving such notification. Language rules are almost never lawfully applicable to lunch and break periods.
Discrimination can also take the form of workplace harassment, which includes derogatory remarks, ethnic slurs, mocking one’s accent, physical intimidation and the display of offensive symbols. This would be behavior that goes beyond simple teasing or offhand comments. The law prohibits activity or conduct that is frequent or severe and that contributes to a hostile or offensive work environment. Harassment is also illegal when it results in any adverse employment action or workplace retaliation against the victim. Harassment can come from a supervisor, a co-worker or a client or customer.
Discrimination Based on Citizenship
The Immigration Reform and Control Act of 1986 prohibits employers from discriminating against employees or applicants based on their citizenship or immigration status. Employers may not require citizenship as a condition of employment unless it is required by government contract. Although employers may condition a job offer on the applicant’s ability to prove their authorization to work in the United States, such a condition must be posed to all candidates equally. If an applicant has provided lawful documentation establishing his or her employment eligibility, an employer may not demand more or different documents.
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