Employment Discrimination on the Basis of National Origin
Employers may not discriminate against an applicant or employee because he or she is or appears to be from a particular country, part of the world, or ethnic group. It does not matter whether the person actually is from that country or not. National origin discrimination also includes treating an employee unfavorably because he or she is married or associated with a person of a particular national origin or ethnic group.
The federal Immigration Reform and Control Act of 1986 (IRCA) also protects employees in connection with their national origin by making it illegal for an employer to discriminate based on citizenship or immigration status with regard to hiring, firing, recruitment, or referral. Employers are not permitted to institute policies under which they only hire United States citizens, for example. They cannot ask for additional documentation related to an employee’s national origin or citizenship beyond what is legally required if they are verifying employment eligibility.
Disparate Treatment under Title VII
A spouse can suffer this type of discrimination too, when he or is discriminated against based on the national origin or their partner.
Under Title VII, disparate treatment of employees based on national origin includes all actions that relate to all aspects of employment, including hiring, firing, promotion, training, fringe benefits, payment, and more. For example, an employer cannot refuse to promote someone to a management position due to his or her foreign accent, unless the accent seriously interferes with work performance. Similarly, an employer may not fire two employees for speaking Spanish to each other while working on a factory line if it does not affect their work performances.
Also prohibited is harassment based on national origin. Light teasing, an offhand comment, or isolated incidents usually don’t qualify as prohibited harassment. Instead, harassment is illegal when it is so frequent or so severe that it creates a hostile work environment or results in an adverse employment decision.
For example, if you are Nigerian and your supervisor makes derogatory, hurtful comments about Africans every day, this could be harassment. This conduct may be prohibited harassment even if your supervisor is also Nigerian. Similarly, if you are from China, and your coworkers mock your accent and origins routinely, you might lose focus and get demoted. In that situation, you may have a viable harassment claim. A harasser in the context of national origin discrimination can be your supervisor, a supervisor in another department, a coworker, or even a client.
Disparate Impact Under Title VII
Some employment actions are not discriminatory on the surface. However, a seemingly neutral employment policy that applies to everyone can have a disparate impact on groups of certain national origins. For example, requiring that employees only speak English on the job can have a negative effect on immigrant employees. This type of policy is only allowed if it is necessary to ensure safe and efficient work operations and if it was put in place for nondiscriminatory and legitimate business reasons.
Similarly, a restaurant that institutes a policy that none of the servers can wear coverings on their heads or near their faces would have an adverse effect on employees who wear hijabs or turbans. The restaurant would have to show that this rule is job-related and based on a legitimate business need. A server bringing a disparate impact claim could still prevail if he or she showed that there was an alternative policy that would satisfy the same business need but have a less disproportionate impact, which the employer refused to institute.