AbleToTrain by Willing & Able

Discrimination Based On National Origin

Discrimination based on national origin is prohibited under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act (PHRA). It is illegal for an employer to refuse to hire or fire an employee because of the employee’s national origin, or to discriminate against an employee in terms of remuneration, terms, conditions, or privileges of employment in any other way. National origin discrimination can occur in any element of work, including hiring, firing, salary, job assignments, promotions, layoffs, training, fringe benefits, or when a decision is made based on an employee’s national origin in any other term or condition of employment.

Employees in the United States of America are treated unfairly because they are from another country, because of their ethnicity or accent, or even because they appear to be of a certain ethnic background, even though they are not. Employees may be treated adversely because they are related with or married to a person of a certain national origin, or because they are affiliated with a group or organization that is associated with a specific national origin. Even when the employee and the supervisor or manager of the employer who discriminates against the employee are of the same national origin, discrimination based on national origin can occur. An employer cannot make an employment decision based on an employee’s foreign accent unless the accent is demonstrated to have a significant impact on the employee’s job performance.

 

Standard of proof for national origin discrimination

To establish a prima facie case of national origin discrimination, an employee must show that (1) the employee belongs to a protected class (i.e., the employee is from another country); (2) the employee was qualified for the job; and (3) the employee was subjected to adverse employment action (i.e., termination of employment or demotion to another job) despite being qualified for the job. While the employee does not have to show a specific type of differential treatment as compared to a similarly situated employee outside the protected class, the employee must show a causal link between the employee’s national origin and the unfavorable employment decision. If the employee shows a prima facie case, the employer must then articulate a genuine nondiscriminatory cause for the negative employment decision (i.e., work performance). If the employer achieves its burden, the employee must then present evidence sufficient to allow a reasonable finder of fact to conclude that the employer’s stated rationale is false or pretextual by a majority of the evidence.

 

Hostile work environment – national origin

It is against the law to put an employee in a hostile work environment because of their national origin. Harassment based on national origin might include insults or insulting statements about a person’s ethnicity, accent, or national origin. Harassment of employees based on their national origin is illegal when it occurs frequently or severely enough to produce a hostile or offensive work environment, or when it results in a negative employment decision, such as the employee being fired or demoted based on national origin. In the case of national origin discrimination, the harasser could be the employee’s boss, another boss or manager, a coworker, or even the employer’s client or customer. The totality of the circumstances must be considered when analyzing hostile work environment claims. An employee must establish what the law refers to as a prima facie case of a hostile work environment claim; an employee must pass a five-part test to prove a hostile work environment claim based on national origin.

Because of his or her national origin, the employee was subjected to deliberate prejudice.

Given the totality of the facts, the discrimination was severe or pervasive. This can be proven by demonstrating the frequency, severity, and whether the discriminatory conduct was physically threatening or humiliating, as well as whether the conduct interferes unreasonably with an employee’s work performance.

Discrimination has a negative impact on the employee.

A reasonable person in that position would be harmed by the discrimination.

Existence of “respondeat superior liability” – situations in which an employer is held liable for the actions of its employees (such as the offending party being a member of management).

 

Discrimination in citizenship and immigration status

The Immigration Reform and Control Act of 1986 (IRCA) forbids employers from discriminating against employees or job applicants based on their citizenship or immigration status when hiring or terminating them. Employers may not have rules that require them to hire exclusively US citizens or lawful permanent residents unless there is a specific legislation, regulation, or government contract that allows citizenship or immigration status to be a consideration for employment.

When validating a potential employee’s employment eligibility, employers may not refuse to accept lawful evidence that establishes the employee’s eligibility or demand further documentation beyond what is legally required.

Retaliation against employees for asserting their rights, such as filing a charge of discrimination based on citizenship or immigration status, or assisting in an investigation or proceeding involving allegations of discrimination based on citizenship or immigration status, is also prohibited under the Immigration Reform and Control Act (IRCA). Employers are prohibited from intimidating, threatening, coercing, or retaliating against employees who intend to file or have filed a charge or complaint. Even if the underlying discrimination claim was not actionable, an employee may have a legitimate retaliation claim under IRCA.

Employers who breach the IRCA face fines, back pay (missed earnings), reinstatement of the employee, costs, and reasonable attorneys’ fees if they violate the law.