How to Handle a Complaint of Discrimination Based on National Origin
Author: William Denham, Shortt & Nguyen, PC
Federal, state and local laws prohibit discrimination based on national origin. An employer may be liable for claims of discrimination based on disparate impact or disparate treatment. Thus, prudent employers should take claims of discrimination based on national origin seriously and engage in active steps to eradicate such discrimination in the workplace. To deal with such a complaint, employers should follow these steps.
Step 1: Understand What National Origin Discrimination Entails
National origin discrimination involves treating job applicants or employees unfavorably because such individuals:
- Are from a particular country or part of the world;
- Have a certain ethnicity (or apparent ethnicity);
- Have a certain accent or manner of dress, such as the Muslim hijab (headscarf); or
- Associate with (e.g., by marriage or by ethnic organization) individuals who are from a particular country or part of the world, have a certain apparent or real ethnicity, or have a certain accent or manner of dress.
This unfavorable treatment can occur directly (under a disparate treatment theory) or indirectly, through the effects of an employer's policies (under a disparate impact theory). An employer's only defense to an otherwise improper discriminatory practice is the business necessity defense that requires a policy to: (a) be directly related to the job or position; and (b) be necessary to the functioning of the employer's organization.
George Washington Auto Repair Shop repairs only American-made cars and is painted all over in red, white and blue. Its ad for a mechanic's position states: "We only hire US citizens." This is national origin discrimination under a disparate treatment theory. And, because US citizenship is not directly related to the mechanic's work or necessary to the functioning of the business, the repair shop cannot rely on the business necessity defense.
Exceptions: Some federal civil service positions are available to - and some governmental contractors by regulation or contract must only hire - US citizens.
George Washington Auto Repair Shop's advertisement for a mechanic's position states: "In compliance with federal law, we require all new employees to provide appropriate documentation to verify their identity and eligibility to work in the US and to complete the required forms (e.g., the Department of Homeland Security's I-9) before beginning work." This is not national origin discrimination because it does not discriminate, either directly or indirectly. It simply follows federal law and gives all applicants, regardless of national origin, an equal opportunity for hiring.
George Washington Auto Repair Shop has a written policy that "All employees must speak English only while at the shop." Tom and Michael, two Vietnamese employees, are told that they cannot speak Vietnamese even when they are not being supervised. This is national origin discrimination under a disparate impact theory. While the policy is facially neutral - by applying to everyone equally - it unnecessarily discriminates against Vietnamese nationals.
Outside of the employer's policies, harassment or discrimination based on national origin may be evidenced by:
- Demeaning jokes, epithets, or name-calling;
- Remarks, cartoons, and pictures with insulting stereotypes; and
- Mimicking or complaining about employee accents.
Step 2: Encourage Reporting of Complaints
The employer should adopt a zero tolerance policy against national origin discrimination and harassment, expressed through formal and informal channels.
Example: Discrimination and Harassment Policy as of [Enter Date]. [Enter Employer Name] is an equal opportunity employer, and is committed to providing a productive and respectful working environment. [Enter Employer Name] strongly encourages all employees to promptly report any form of harassment or discrimination in the workplace based on national origin [and all other protected classes such as sex, age, and race] to the human resources department, any manager, or the CEO. [Enter Employer Name] is dedicated to eradicating harmful discrimination and harassment in the workplace, and will promptly address all such reports.
The employer's reporting policy should make clear that employees have at least two - and preferably more - individuals to report to. The employer should consider publishing this policy in all places where employees review the employer's policies, including the employee handbook, the employer's intranet site, and announcement boards.
Step 3: Promptly Investigate All Complaints
Once an employee has made a report of national origin discrimination or harassment - whether written or oral - an HR representative or an external third party should act as investigator, depending the circumstances.
The Reporting Employee
The investigator should immediately schedule a face-to-face meeting with the reporting employee and, at that meeting:
- Begin by assuring the reporting employee that the report is appreciated, is taken seriously, and will be kept confidential as far as possible;
- Take notes that reflect all relevant facts, including who did what, when, where, for how long, and in whose presence;
- Confirm that the reporting employee has conveyed all relevant information, can remember no other details, and has no other report to make;
- Ask that the reporting employee not discuss, publicize, or share with anyone else the report or the investigation; and
- Tell the reporting employee that the investigation will conclude as promptly as reasonably possible.
If the reporting employee is under a real and immediate threat of further harassment or discrimination, the investigator may need to coordinate with management on appropriate immediate remedial steps (e.g., temporary reassignments, paid leave of absences, closer supervision).
The investigator should then schedule a face-to-face appointment as soon as possible with each potential witness. In interviewing witnesses, the investigator should:
- Explain that there has been a report of discrimination (or harassment);
- Assure the witness that the witness is not under investigation or in any trouble;
- Tell the witness that this appointment is merely part of the process of investigating the report and that their identity will be kept confidential as far as possible;
- Take notes that reflect all relevant facts, including what the witness saw, said, did, and heard firsthand about the incident(s);
- Confirm that the witness has conveyed all relevant information and can remember no other details;
- Ask that the witness not discuss, publicize, or share with anyone else the report or the investigation; and
- Let the witness know that the investigation will conclude as promptly as reasonably possible.
Finally, and only after talking with the reporting employee and each potential witness, the investigator should schedule a face-to-face appointment with the alleged wrongdoer. (This meeting should be attended by the alleged wrongdoer and two independent individuals, e.g., an HR representative and a manager who outranks the alleged wrongdoer.) In this interview, the investigator should:
- Explain that there has been a report of discrimination (or harassment) by the individual;
- Provide a summary of the alleged discrimination (or harassment) including the date, time, place, and witnesses to the alleged incident;
- Ask that the individual provide his or her side of the story;
- Take notes that reflect all relevant facts, including what the individual saw, said, did, and heard about the incident(s);
- Confirm that the individual has conveyed all relevant facts and can remember no other details;
- Request that the individual not discuss, publicize, or share with anyone else the report or the investigation; and
- Let the individual know that the investigation will conclude as promptly as reasonably possible.
The employer should never:
- Make assumptions about the employee's truthfulness;
- Decide not to investigate;
- Forget to check all available documents (e.g., emails, time cards) that may corroborate or undermine one party's version of the facts;
- Stray from established procedures for handling complaints;
- Through the investigation, write down more than the facts as relayed (e.g., judgments about credibility, jokes about complaint) - as the investigator's notes may well be discoverable if a lawsuit arises;
- Ignore governmental (e.g., EEOC) requests or complaints; or
- Reach any conclusions before the end of the investigation.
Step 4: Draw Conclusions and If Necessary, Impose Discipline
As promptly as possible, the investigator should conclude the investigation and provide a set of findings to the employer.
In turn, the employer should determine either that no discipline will be imposed (because no wrongdoing was shown) or that appropriate discipline will be imposed. If discipline is imposed, the employer must be sure that:
- The punishment is appropriate to the level of severity of the offense - the more clearly wrong or harmful the action, the greater the punishment; and
- The punishment is consistent with past practice and punishments received by similarly-situated employees in similar circumstances.
In any event, employers should never retaliate in any way against the reporting employee - even if the complaint has no legal merit. Courts often interpret retaliation as any type of negative treatment (e.g., a change in job assignments, even if at the same pay scale) which would discourage an employee from bringing a compliant. Courts also look at the temporal proximity between the complaint and the retaliatory conduct. As such, employers should be especially cautious in taking any actions that affect the work, pay, or conditions of employment of any reporting employee for at least several weeks (if not months) after the report.