National Origin Discrimination Laws in Employment
The United States is famous for being a “melting pot” of people from all over the world. This is one of the country’s great strengths, but not all employers see it that way. People who fail to get a job, lose their job, or suffer from mistreatment at work because of their national origin may have claims to assert. Compiling evidence and navigating administrative and judicial procedures may be challenging, though. An employee or job applicant should consider consulting an attorney.
Laws typically define “national origin” more broadly than the place where a person was born. The term usually also covers factors such as accent, native language, or the place where a person’s family once lived.
Laws Prohibiting National Origin Discrimination
A federal law called Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on several protected traits. These include national origin. Title VII applies to employers with 15 or more employees, including those who work part-time or only during certain times of the year. The employer must have met this 15-employee threshold for at least 20 weeks that year or the previous year.
Title VII does not provide a precise definition of an “employee,” leaving it to courts to decide who fits within this category. Crucially, an employer cannot turn someone into an independent contractor or another non-employee just by labeling them that way. A court will look at the actual relationship between the business and the worker to decide how they should be classified. Factors that may play a role in this determination include how much the business controls how and when the worker does their job, how the worker is paid, who supplies any equipment that the worker uses, and whether the worker has a separate business beyond the tasks that they perform for the employer.
Proving Liability for National Origin Discrimination
Many claims of national origin discrimination rely on a theory called “disparate treatment.” This means that the employer intentionally refused to hire, fired, or otherwise discriminated against the employee because of their race. Sometimes an employee can produce direct evidence of discrimination, such as a written or oral statement showing that the employer was motivated by hostility toward the employee’s national origin. More often, though, an employee tries to present evidence from which someone could infer that they experienced discrimination. The employer then can counter by producing another explanation for its actions. This leaves the employee with the task of showing that the alternative explanation simply masked discrimination.
The other main theory is called “disparate impact.” This involves unintentional discrimination. An employer may have a neutral policy or practice that negatively affects people with a particular national origin more than other people. Even though the employer had no bad intentions, this type of rule violates Title VII unless it is related to the job and consistent with business necessity. (It still may violate Title VII even if it is consistent with business necessity if the employer could use an alternative approach that would not have the same impact.)
Examples of National Origin Discrimination
Feng came to the U.S. from China as a child. After graduating from a prestigious university and building a strong reputation as a programmer, he applies for a job at a tech company but is told that they have enough Chinese on the staff already. A less qualified non-Chinese applicant gets the position. This refusal to hire Feng would be a form of national origin discrimination.
Vanessa is an accountant of Mexican descent. She looks paler than many Mexicans and took the last name of her husband, who is not Mexican. Her employer thus doesn’t initially realize her family origins. Vanessa gets strong performance reviews until she mentions to her supervisor that her grandparents came from Mexico. The supervisor expresses surprise that “one of the taco truck people” could handle the job. After this interaction, her performance reviews abruptly decline, and Vanessa is eventually fired. She might have a claim for wrongful termination based on national origin discrimination if she can show that the performance reviews were a way of cloaking the supervisor’s prejudice and justifying her firing.
Procedures for Bringing a National Origin Discrimination Claim
If you think that an employer has violated Title VII, you cannot go straight to court. First, you will need to file a charge with a federal agency called the Equal Employment Opportunity Commission. The standard deadline for filing a charge with the EEOC is 180 days, but you may have up to 300 days to file a charge if a non-federal agency enforces an anti-discrimination law that covers the same type of misconduct.
The EEOC will assess whether there is reasonable cause to think that the employer broke the law. If it doesn’t think that discrimination occurred, it will issue a letter called a Notice of Right to Sue to the employee. They have 90 days after getting the letter to file a lawsuit. If 180 days have passed since you filed the charge, and the EEOC has not reached a decision, you can ask for a Notice of Right to Sue at that point. The EEOC will issue the Notice automatically. You also can ask for a Notice if fewer than 180 days have passed, but the EEOC will issue the Notice in this case only if it will not complete the investigation within the 180 days.
What happens if the EEOC finds reasonable cause? This triggers a process called conciliation, which is an informal effort to find a solution that is acceptable to both sides. (The EEOC also offers mediation in certain cases, usually before its investigation starts but sometimes during conciliation.) If conciliation does not work, the EEOC will need to decide whether to sue the employer. More often, it will send a Notice of Right to Sue to the employee, who will then go to court on their own.
Defenses to National Origin Discrimination Claims
Strategies for fighting a claim of national origin discrimination often depend on the legal theory supporting the claim. If the employee attacks a policy under a disparate impact theory, for example, the employer could show that the policy was related to the job and necessary for the business to operate effectively. In a disparate treatment case, the employer could show that it had a legitimate reason to take the action against the employee. A business can reduce the risk of liability by making its decision-making processes as objective and transparent as possible.
Title VII allows for a “bona fide occupational qualification” (BFOQ) defense in certain cases involving national origin discrimination. An employer can use this defense if national origin was a bona fide (good-faith) occupational qualification that was reasonably necessary to the normal operation of the business.
Remedies for National Origin Discrimination
If an employee faced intentional discrimination, they may be able to recover a broad range of compensatory damages. These may include pain and suffering, lost enjoyment of life, and other forms of intangible harm in addition to out-of-pocket costs and future financial losses. If the employer acted with malice or reckless indifference, an employee might get punitive damages in addition to compensatory damages.
However, an employee cannot recover more than a total of $300,000 in future financial losses, non-economic damages, and punitive damages under Title VII. This ceiling lowers for smaller employers. If an employer has no more than 100 employees, a $50,000 cap applies, while the cap is $100,000 for employers with 101-200 employees and $200,000 for employers with 201-500 employees. State or local laws may have more favorable rules.
In any discrimination claim, including disparate impact cases, an employee may be entitled to a remedy that cancels out the discriminatory action to the extent possible. Someone who was fired because of national origin discrimination may be reinstated, while someone who was not hired or not promoted for this reason may get placed in the job or the elevated position. An employee also may get back pay and benefits to which they would have been entitled. The employer may be ordered to adjust its policies and practices to avoid further discrimination.
