Although national origin discrimination may not be as prominent as sex, race, or disability discrimination, it accounted for nearly 11% of all charges filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2015. The percentages are even higher in states with more diverse populations: 18.1% of total charges in New Mexico were for national origin discrimination, 16.6% in California, 16.2% in Colorado, and 15.3% in Texas, to name a few.
Title VII Prohibits Discrimination Based on National Origin
As you may be aware, Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or national origin for employers with 15 or more employees. It covers all employees and job applicants in the United States.
National origin discrimination is defined by the EEOC as discrimination against an individual or his or her ancestors because they are from a particular country or region or share physical, cultural, or linguistic characteristics with a national origin or ethnic group. For instance, national origin discrimination occurs when an employee is treated negatively because he or she is from another country or former country (such as Mexico, China, or Yugoslavia), a place that is closely associated with an ethnic group but is not a country (such as Kurdistan), or a group that shares a common language, ancestry, or other social characteristics (such as Arabs or Hispanics).
While overt discrimination is more obvious, Title VII prohibits less obvious forms of discrimination as well. For example, Title VII prohibits associational discrimination, which occurs when an employer treats an applicant or employee less favorably because he or she associates with someone of a particular national origin (e.g., dates, marries, lives with, is the parent of, etc.). Employment discrimination also occurs when an employer treats an individual less favorably on the basis of his or her ethnic origin. For instance, a Hispanic business owner who refuses to hire anyone other than Hispanics is engaging in national origin discrimination. Additionally, discrimination based on the perception or belief that an individual (or his or her ancestors) is a member of a particular national origin group can be discriminatory regardless of whether the individual is actually a member of that group
Title VII prohibits not only discriminatory employment decisions, but also unlawful harassment and retaliation on the basis of national origin. Harassment can take the form of ethnic slurs, intimidation, threats, mockery, and other verbal, written, or physical conduct directed at an individual on the basis of his or her birthplace, ethnic origin, culture, language, dress, or accent.
EEOC guidance
The EEOC updated its enforcement guidance on national origin discrimination in late 2016. To aid in the explanation of employee rights and to encourage employer compliance, the EEOC guidance includes numerous examples and human resource practices in a variety of employment situations that could result in Title VII national origin violations. Additionally, it discusses how discrimination on the basis of national origin frequently intersects with other protected characteristics such as race, color, or religion. Several points worth noting are included in the updated guidance:
National origin can occur within the United States; in other words, “discrimination on the basis of national origin includes discrimination against American workers in favor of foreign workers.”
Human trafficking is covered by Title VII. According to the guidance, in addition to criminal liability for coercing labor and/or exploiting workers, Title VII may impose civil liability if the conduct is directed at a protected class member, including national origin.
The doctrine of joint employership applies to staffing firms and client employers.
Preference for US citizenship may be illegal if it is intended or results in discrimination on the basis of national origin.
We strongly recommend that you review the EEOC’s guidance document.
Checklist for Avoiding Liability for Discrimination Based on National Origin
To put the EEOC’s guidance into practice, here is a handy checklist outlining specific human resources policies and employment practices that will assist your organization in avoiding liability for national origin discrimination or harassment.
Equal employment opportunity statements should be included in all job applications and postings.
When recruiting candidates and advertising job openings, avoid the following:
Specify a preference for (or opposition to) a particular national origin (e.g., “looking for candidates born in the United States” or “must not have a foreign accent,” etc. );
Rely solely on referrals from current employees (this keeps the applicant pool too homogeneous); or
Send job postings only to outlets or communities that are not diverse.
Take care not to reject applicants based on their ethnic names; consider redacting or concealing names during your initial review of applications and resumes to avoid being influenced by an ethnic name inadvertently.
During interviews, refrain from inquiring about candidates’ ethnic heritage, ancestry, accent, or any other direct or indirect question about national origin, even if you are merely being friendly or curious.
Conduct background checks and pre-employment testing on all candidates/employees in a particular job category – do not target only those with foreign-sounding names, accents, or other characteristics for such tests.
Avoid discriminating against or isolating employees on the basis of their national origin (e.g., do not assign all Hispanic workers to lower-paying positions, or keep all Filipino employees away from the public, etc.).
Employers should exercise caution when imposing an English-only language rule – any restriction on language spoken at work must be job-related and consistent with business necessity, and should not be imposed during employee breaks or other personal time on the employer’s premises.
Ascertain that your harassment policy prohibits discrimination on the basis of national origin and that you train employees to refrain from using ethnic slurs, stereotypes, name calling, and mocking tones, among other things.
Bear in mind that personal preferences or prejudices toward customers or coworkers do not justify discriminatory hiring, firing, promotion, or discipline decisions.
While a culturally diverse workplace can present management with unique challenges, it can also help employers remain relevant in an increasingly diverse society. Utilize this checklist to assist you in avoiding potential liability for workplace national origin discrimination. Additionally, the EEOC’s question-and-answer publication and small business fact sheet contain information on national origin discrimination.