Title VII of the Civil Rights Act prohibits discrimination in the workplace on the basis of national origin and race. Is there a genuine distinction between these two protected groups?
While the same evidence can typically be used to establish race discrimination and national origin discrimination, national origin discrimination is discrimination based on an employee’s birthplace or ancestors’ birthplace. In many ways, cases of race discrimination and cases of national origin discrimination are nearly identical.
Employers are prohibited from favoring employees based on their race, just as they are prohibited from favoring employees based on their ancestry or heritage. For instance, an employer cannot refuse to hire Mexican applicants in favor of those from the United States.
One of the most blatant examples of national origin discrimination occurs when an employee is discriminated against on the basis of his or her affiliation with a particular ethnic group. For instance, an employer cannot harass an employee solely on the basis of her Jewish ancestry. Similarly, an employer cannot discriminate against an employee solely on the basis of his or her Middle Eastern origin.
Affiliation with an ethnic group encompasses subgroups and is not limited to recognized countries. For instance, an employer cannot prefer a Turkish employee over an Egyptian employee simply because both are Middle Eastern—that would constitute national origin discrimination. Additionally, an employer cannot discriminate against a Palestinian employee simply because Palestine is not recognized as a sovereign nation; such discrimination is still based on the employee’s ethnic group affiliation.
Similarly, an employer cannot discriminate against an employee based on physical or cultural characteristics or attire associated with a specific ethnic group or country. For instance, harassing an employee due to his turban and accent.
What is relevant in a case of national origin discrimination is how the employer views an employee’s ethnicity, not how the employee identifies. In other words, an employer cannot discriminate against an employee based on his or her perceived ethnic origin or ancestry. For instance, an employer may mistakenly believe a Hispanic employee is Middle Eastern and terminate him as a result of his perceived Middle Eastern affiliation. It makes no difference that the employee is not Middle Eastern—the employer discriminated on the basis of national origin.
Additionally, Title VII prohibits discrimination against employees based on their relationships and affiliations with members of national origin groups. Employers cannot discriminate against an employee on the basis of his or her associations or spouse. For instance, an employer cannot terminate an employee solely on the basis of her spouse’s Middle Eastern origin. Similarly, regardless of the employee’s national origin, an employer cannot pay an employee less because of his or her close ties to a Hispanic community.