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