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National Origin Discrimination
Editor's Note: Know how to identify and prevent national origin discrimination.
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.
The Immigration Reform and Control Act of 1986 (IRCA) 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, and they may discriminate based on national origin if it is a bona fide occupational qualification. Further, if an employer seeks to adopt a rule that employees may only speak English in the workplace, the employer must show that it is justified by a business necessity such as safety and efficiency of the workplace. 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: In the wake of September 11th, there is a recent trend among the federal government to protect Arabs and Muslims from discrimination in the workplace and make sure that they are not subject to bias and hate crimes. For example, the EEOC recently filed suit against UPS alleging national origin discrimination and religious harassment against Jordanian and Muslim employees who were falsely labeled terrorists and repeatedly harassed by co-workers. The EEOC claimed that UPS failed to take effective measures to end the discrimination. This is just one of nearly 100 lawsuits filed by the EEOC alleging religious and national origin discrimination against individuals with Muslim, Sikh, Arab, Middle Eastern and South Asian backgrounds.
Beth Zoller, J.D., Legal Editor
Latest items in National Origin Discrimination
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Podcast: Inside the Supreme Court Insight on Case With Big HR Implications
XpertHR takes you inside the Supreme Court with full coverage of the Title VII retaliation case of University of Texas Southwestern Medical Center v. Nassar, including sound from the justices themselves. Depending on the outcome, the impact could extend to other employment laws.
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Comprehensive Resources Help Employers Prevent Discrimination Against Muslim and Arab Workers
Recent case law developments highlight the importance of preventing discrimination against workers who are Muslim or of Middle Eastern background.
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Podcast Features EEOC General Counsel David Lopez
In a wide-ranging XpertHR podcast, EEOC General Counsel David Lopez discusses a host of key employment law issues, including notable litigation trends affecting the Commission. Lopez also talks about the biggest mistakes he sees employers making.
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EEOC General Counsel Discusses Litigation Trends With XpertHR
In a new XpertHR podcast, EEOC General Counsel David Lopez said the Commission continues to see "very egregious cases of racial harassment." He also addressed notable litigation trends involving national origin discrimination plus the litigation rise involving mental disability issues.
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Equal Pay Still a Hot Issue: Fair Pay Act Reintroduced in Congress
In a year in which equal pay looks to be hot issue, the Fair Pay Act (S. 168, H.R. 438) was reintroduced in Congress in both the House and the Senate by Rep. Eleanor Holmes Norton (D-DC) and Senator Tom Harkin (D-IA) respectively.
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EEOC Statistics Show Retaliation Still Top Workplace Concern
On January 28, 2013, the Equal Employment Opportunity Commission (EEOC) released fiscal year 2012 statistics on employment discrimination charges filed with the agency. Retaliation (37,836) was the most frequently filed claim, followed by race discrimination (33,512) and sex discrimination (30,356), which includes sexual harassment and pregnancy discrimination. Retaliation charges remain a top concern for employers and have since 2010, accounting for 38.1% of all charges in 2012.
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Supreme Court to Hear "Mixed Motive" Title VII Case
The Supreme Court has agreed to decide whether an employee can sue a former employer under Title VII's retaliation provision by showing illegal bias was one of multiple reasons for taking action against him - a so-called "mixed motive" - or whether he must prove the employer would not have acted "but for" its improper motive. The issue has divided the nation's appellate courts.
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EEOC Seeks to Protect Vulnerable Farm Workers from Harassment
The EEOC is pursuing non-traditional harassment claims such as those by males against males and claims based on national origin harassment, sexual violence and abuse. Further, the EEOC has indicated that farm workers are particularly vulnerable because they often work long hours in isolated working conditions and lack familiarity with legal protections and access to the legal system.
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Employees Must Prove Discriminatory Impact of English-Only Policies
In Garcia v. Spun Steak Co. 998 F.2d 1480, (9th Cir. 1993), the 9th Circuit considered whether a policy requiring employees to speak only English while working had a disparate impact on bilingual members of the workforce.
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English-Only Policy
An employer may use this policy to ensure employees speak English when necessary to the welfare of the employer, its employees, and its customers. An English-only policy can advance legitimate business interests without restricting non-native speakers from conversing in a language of their choice at appropriate times.
About this topic
HR guidance on addressing national origin discrimination in the workplace and developing policies and strategies to ensure a tolerant and diverse workforce.