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National Origin Discrimination

Editor's Note: Know how to identify and prevent national origin discrimination.

Beth P. Zoller Overview: Title VII and various state and local laws prohibit employers from discriminating against individuals based on national origin. As such, employers cannot discriminate against individuals based on their ethnicity, accent, country of origin or birthplace or because they are of a particular background or group. Title VII prohibits discrimination based on an individual’s association with people of a particular national origin or marriage to an individual of a particular national origin.

The Immigration Reform and Control Act of 1986 (IRCA) further makes it unlawful for an employer to discriminate based upon an individual's citizenship or immigration status. Accordingly, employers should develop policies and practices that prohibit national origin discrimination as well as citizenship discrimination and engage in training for employees and supervisors with regard to fostering a tolerant, diverse and nondiscriminatory working environment.

Employers should understand that there are exceptions as in some limited circumstances an employer may be permitted to show a preference for one national origin over another if a specific national origin is a "bona fide occupational qualification" for the position and necessary for the job. However, the preferences of customers, employers, vendors, or clients cannot justify discrimination. Employers should also be careful with English-only and/or language policies which may be lawful but but only under limited circumstances if necessary to promote safe and efficient job performance or business operations. If an employer chooses to adopt such a policy, there should be a business necessity for it and a legitimate nondiscriminatory reason behind it and the policy should not be applied in a discriminatory manner. An employer should train all supervisors, managers and employees to avoid ethnic slurs and stereotypes and institute diversity training in order to foster a more tolerant workplace.

Trends: There has been a recent trend in aiming to protect individuals of Middle Eastern, Muslim, Sikh, Arab and South Asian descent from discrimination and harassment and making sure that such individuals are not subject to bias and hate crimes. This is reflected in the EEOC's most recent Strategic Plan for Fiscal Years 2017-2021 which identifies backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, based on tragic events in the US and abroad that have increased the likelihood of discrimination against these communities. Additionally, the EEOC has also attempted to target recruiting and hiring practices that discriminate against racial, ethnic and religious groups as well as protect immigrant, migrant and other vulnerable workers. In November 2016, the EEOC released updated Enforcement Guidance on National Origin Discrimination covering various issues such as job segregation, human trafficking, language fluency requirements and English-only policies and harassment.

Author: Beth Zoller, JD, Legal Editor

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HR guidance on addressing national origin discrimination in the workplace and developing policies and strategies to ensure a tolerant and diverse workforce.