National Origin Discrimination

In the news today, you will hear quite a bit of political debate over immigration and a great deal of worthy praise for American-made products and businesses.   Nevertheless, it is a fact that our workforce – the people shouldering the business of production and service across the country – are a melting pot of national origins and ethnicities.  In recognition of this fact and the hard work drawn from people of all ancestries, the law demands equal treatment irrespective of national origin or ethnicity.  Ethnicity means the physical and mental traits possessed by members of a certain group of people that are the result of their common heredity and cultural traditions. 

When an employer treats employees unfavorably because of the country or part of the world they come from, because of their ethnicity, accent or even because they appear to have a certain ethnicity, it is considered national origin discrimination and is illegal.  National origin discrimination can arise in many different ways and some of those are listed below. 

Types of Claims

Illegal national origin discrimination can be based on the unfavorable treatment of persons from other countries or of different ethnicities but it can also occur when employees are treated differently because they are married to (or otherwise closely associated with) a person or even an organization or group that is defined by a different national origin or ethnicity.  For example, treating someone unfavorably – as in refusing to hire them, denying benefits or promotions or firing them --  because of their attendance at schools, churches, temples, mosques or places of congregation that are associated with a particular nation of origin is a violation of the law.  Likewise, discrimination based on a surname associated with a particular ethnic group would be illegal. 

Harassment of employees because of their national origin is also illegal.  Harassment includes the use of ethnic slurs and derogatory comments meant to be degrading and which is sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive work environment.

It is important to understand that the law prohibits discrimination against all individuals employed in the United States, regardless of citizenship; however, damages may be subject to limitations if an employee is undocumented. 

The Civil Rights Act of 1964

In 1964, President Lyndon Johnson signed into law the Civil Rights Act of 1964.  One provision of that law, Title VII, prohibits discrimination in employment based on a person’s national origin.  Among other things, the law protects individuals from discrimination in recruitment, hiring and promotion, in the terms and conditions of employment and in discharge.  It also protects employees from national origin based harassment and prohibits retaliation against individuals who complain of such discrimination.   However, an employer must have 15 or more employees on the payroll for each working day in each of twenty or more calendar weeks in the current or preceding year in order to be covered.

Remedies  

If employers are covered, then they can be liable for many forms of damages if it is determined that they have discriminated based on national origin.  Damages can include back pay or the amount of pay loss due to the discrimination, front pay or the amount of pay expected to be lost in the future, compensatory damages, including damages for emotional distress, and punitive damages.  Employees can also obtain reinstatement to jobs or positions lost, an award of a job or position denied, as well as attorneys’ fees incurred in bringing the claims.       

Agency Involvement 

The Civil Rights Act of 1964 set up the Equal Employment Opportunity Commission as the federal agency in charge of investigating claims of discrimination under Title VII and employees are required to file charges of discrimination with the EEOC within a limited amount of time after learning of discrimination; in some cases, within as little as 180 days. 

Other Laws 

There is another law that protects employees from national origin discrimination and that is the Immigration Reform and Control Act of 1986 (IRCA).  This law is enforced by the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division.  What the IRCA does is protect employees from discrimination based on citizenship or immigration status.

Specifically, the IRCA prohibits employers from hiring only U.S. citizens unless a law specifically requires that they do so.  In that regard, an employer may not refuse lawful documentation that establishes employment eligibility.  An employer also cannot demand additional documentation beyond what is legally required when verifying employment eligibility through the Department of Homeland Security I-9 form.  It is the employee's choice which of the acceptable Form I-9 documents to show to verify employment eligibility.

The IRCA also prohibits retaliation against individuals for asserting their rights under the Act, or for filing a charge or assisting in an investigation or proceeding under the Act.

Although this is just an overview of national origin discrimination, if you have concerns over such discrimination or have additional questions, we can help guide you and, if necessary, represent you before the EEOC or in Court.  To further discuss your situation, you can call us toll free at 1-855-774-3675, send us an e-mail, or fill out a consultation request form and we will contact as soon as possible.