Overview: Employers should be aware that Title VII and various state and local laws prohibit employee discrimination against an individual based on the individual's national origin or ethnicity.
National origin harassment may involve making offensive jokes, using demeaning names, using slurs, stereotypes and epithets, and imitating an individual's accent.
Employers should take all necessary steps to eliminate national origin harassment by instituting a workplace policy that national origin harassment is strictly prohibited. Further, the employers should make sure that there is an adequate complaint system in place so employees know how to bring a complaint.
In addition, employers should promptly respond to and address all complaints and take remedial action if needed.
Trends: In the aftermath of September 11th, national origin harassment has increased - a significant number of Muslim and Arab employees have experienced harassment in the workplace based on their ethnicity.
In addition, the EEOC has recently indicated that it is willing to pursue illegal harassment of vulnerable farm workers especially in light of the fact that such workers are seasonal immigrants and migrant workers who may not understand the English language and who may be unfamiliar with the protections afforded to workers under federal and state law.
In Vance v. Ball State University, 570 U.S. (2013), the Supreme Court issued a critical decision which makes it more difficult for employees to prove that an employer is vicariously liable for a supervisor’s discriminatory or harassing conduct. Specifically, the Court held that a supervisor must be someone with the direct power and authority to take tangible employment actions against an employee. This issue is of primary importance when determining whether an employer is vicariously liable for a supervisor's actions in cases of harassment. Under the current law, if the harasser is a supervisor, the employer is automatically vicariously liable for the supervisor's actions. If the harasser is not a supervisor, the plaintiff must prove that the employer was negligent and that the employer knew or should have known of the harassment in order to be liable. This is a much higher burden to meet.
Author: Beth P. Zoller, JD, 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.
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 a national origin discrimination complaint, employers should follow the steps in this How To.
HR guidance on addressing national origin harassment and creating a more tolerant and diverse workforce.