Employment Discrimination on the Basis of Ethnicity
When catastrophic events such as 9/11 or the Boston Marathon bombing happen, individuals who are perceived to be responsible for these events may be the targets of angry actions or even harassment. Employers are tasked with guarding against discrimination even after horrifying tragedies that are perceived to be associated with people of a particular national origin or ethnic background.
Workplace discrimination based on religion, national origin, race or color is prohibited under Title VII of the Civil Rights Act of 1964. These characteristics are generally considered to include ethnicity, even though the word “ethnicity” is not expressly stated in federal anti-discrimination laws.
Title VII Protection Against Adverse Employment Actions
Employment actions covered by Title VII include recruitment, hiring, firing, advancement, training, and salaries. There are two basic theories for proving race or national origin discrimination: disparate treatment and disparate impact. Whether you allege one or the other of these grounds, your complaint regarding ethnic discrimination under Title VII will have to be couched within the protected categories of race, national origin, religion, or color.
Disparate treatment occurs when an employer is motivated to treat employees differently based on their membership in a particular group. At the start of a disparate treatment case based on a hiring decision, the claimant must show that:
- He or she is a member of a protected class;
- He or she was qualified for the job;
- He or she applied;
- He or she was rejected; and
- The position remained open after the rejection.
For example, a clothing store may not refuse to hire a qualified salesperson of Guatemalan origins because the management believes that all Latinos are lazy. Similarly, a software company may not refuse to promote a Chinese person because the CEO thinks that any Asian is likely to steal trade secrets.
Seemingly neutral employment actions that are not motivated by dislike for a particular ethnicity but still have a disparate impact may be found discriminatory under Title VII. For example, a workplace policy that forbids employees from wearing head coverings may have a disparate impact on Punjabi Sikh men.
Prohibited employment actions include harassment and retaliation. Harassment is any conduct unwelcome to the victim that is based on a protected characteristic, including ethnicity. Harassment is unlawful if enduring the behavior is a condition of continued employment, or the conduct is so severe and pervasive that it creates a work environment that a reasonable person would find hostile, intimidating, or abusive. Minor or subtle irritations are not considered harassment. Usually, an isolated incident is not considered harassment unless it is severe.
For example, if a coworker makes a stray comment involving a stereotype about Hispanic people within earshot of a Mexican employee, that would be unlikely to rise to the level of harassment. However, if two coworkers attack the Mexican employee in a hallway at the office because they dislike his accent, this incident alone could be considered workplace harassment. Similarly, harassment would likely be found if coworkers routinely intimidate or mock the Mexican employee to the point that he is too overwrought to perform the job. If another person at the workplace finds the conduct offensive, he or she also may have a sound complaint, even though he or she is not the actual person being harassed. Unlawful harassment can occur without economic injury.
Harassment may be based on any perception that somebody is a member of a particular ethnicity, whether or not it is accurate. For example, it is illegal for a company to refuse to hire a person from North Africa because the hiring manager believes the person is from the Middle East.