Of the ten types of discrimination handled by the Equal Employment Opportunities Commission (EEOC), national origin discrimination charges ranked third in 2012 behind race and sex discrimination charges. Last year, there were 10,883 national origin discrimination charges representing about 11% of all charges received by the EEOC.
Unlawful National Origin Discrimination
National origin discrimination can take several forms. According to the EEOC, national origin discrimination involves treating employees differently because they come from a particular country or part of the world or because they speak with an unfavorable accent or use a different language. For example, an employer’s “English-only” rule may be considered national origin discrimination.
Title VII prohibits discrimination in employment based on national origin in any aspect of employment, including hiring, firing, pay, job assignments and promotion. The law also forbids harassing an employee due to their ethnic traits or county of origin, and makes it unlawful to retaliate against an employee or coworker of an employee who complains, files suit or participates in court proceedings involving national origin discrimination.
5 Informative National Origin Discrimination Facts
1.Employment decisions based on an employee’s accent could be unlawful under Title VII.
According to the EEOC, an employer may not base an employment decision on an employee’s foreign accent unless the accent seriously interferes with the employee’s job performance.
About 61 million Americans speak a language other than English at home. About 60% of these speak English very well, according to a 2011 study by the US Census Bureau. Yet, discrimination against foreign accents continues to be a growing problem in the workplace.
One major issue in some foreign accent discrimination cases is the use of customer preference arguments – arguments that defend an employer’s decision based on customer complaints or opinions about an employee’s foreign accent.
Employers sometimes unfairly use a job applicant’s or employee’s accent as a basis for employment decisions. This is considered a violation of federal employment discrimination law. Language accents are reflective of ethnicity and national origin, and as such, are protected under Title VII.
2. The Immigration Reform and Control Act of 1986 also prohibits national origin discrimination in the workplace.
The Immigration Reform and Control Act (IRCA) was enacted on November 6, 1986, to control and reform illegal immigration in the United States. Part of its provisions address discrimination in hiring, firing, pay and other employment decisions based on a person’s citizenship or immigration status.
Like Title VII, IRCA prohibits retaliation for complaints filed or due to assistance with IRCA investigations and participation in court proceedings involving the law. Essentially, the federal statute prevents employers from only hiring US citizens or legal permanent residents when employees are able to present the necessary documentation, such as a Form I-9, proving their eligibility to work in the U.S.
3. The first Supreme Court case to directly interpret the national origin provisions of Title VII was Espinoza v. Farah Mfg. Co. in 1973.
Nearly 30 years after the enactment of Title VII, Espinoza v. Farah Mfg. Co. became the first case to interpret the term “national origin.” Specifically, the Court ruled that national origin under Title VII did not include protection from discrimination based on citizenship status.
This is a particularly narrow interpretation of the term ‘national origin’, but since Espinoza, courts have broadened the definition. Some have ruled that the term includes protection from discrimination based on ancestry. For instance, employees from countries that no longer exist, such as Serbians, or countries that have never existed but whose adherents share certain ancestral traits, such as Gypsies and Akkadians (Cajuns), have been protected under the statute.
4. Native Americans can bring claims based on national origin discrimination.
The EEOC states, “whether an employee or job applicant’s ancestry is Mexican, Ukranian, Filipino, Arab, American Indian or any other nationality, he or she is entitled to the same employment opportunities as anyone else.” This indicates that even Native Americans share ancestry protected under federal law from all forms of employment discrimination.
In 2012, the EEOC created a Model Memoranda of Understanding (MOU) to “coordinate investigations, share information and provide reciprocal training” to Native American tribes. These tribes have sovreignty, a legal doctrine which treats each individual tribe as a separate nation. The EEOC’s MOU paved the way for greater protections for Native Americans from employment discrimination both on and off reservations.
5. In defense of a national origin discrimination claim, employers may invoke the bona fide occupational qualification exception.
Claims asserting national origin discrimination are subject to at least one employer defense. The bona fide occupational qualification exception can be used to distinguish lawful acts of national origin discrimination from unlawful acts of employment discrimination. If an employer can prove that it is necessary as a bona fide part of performing a job that certain national origins may not qualify, then the discrimination could be considered lawful under Title VII.
An example of this would be the position of 911 Operator, where foreign accents could interfere with timely emergency services. Understandably, however, the bona fide occupational qualification exception is rare as a valid defense in national origin discrimination cases.
A Continuing Issue
As the nation’s ethnic diversity continues to increase, national origin discrimination will also continue to be a compelling issue. Employees must be aware of the various forms that national origin discrimination can take and stay abreast of changes and improvements to national origin discrimination protection.