National Origin Examples: Everything You Need to Know
National origin examples include Filipino, Mexican, Iranian, Russian, and American Indian, and thanks to Title VII of the Civil Rights Act of 1964.8 min read
2. Disparate Treatment Under Title VII
3. Disparate Impact Under Title VII
4. National Origin Discrimination Checklist
5. EEOC Updates Its National Origin Discrimination Guide
Updated October 27, 2020:
National Origin Examples
National origin examples include Filipino, Mexican, Iranian, Russian, and American Indian, and thanks to Title VII of the Civil Rights Act of 1964, people of these national origins and all other national origins have the right to equal access to employment. Title VII is a law that applies to employers with 15 or more employees, and it bans discrimination based on one's ancestry, birthplace, linguistic characteristics (common to a specific group), culture, or accent. Title VII also bars offensive conduct, such as ethnic slurs, that create a hostile work environment, and it requires employers to take appropriate steps to prevent and correct unlawful harassment. When a person is discriminated against due to their country of origin, culture, ancestry, linguistic characteristics, accent, or appearance, they have been discriminated against because of their national origin. A “national origin group” is a group of people sharing a common language, culture, ancestry, and/or other similar social characteristics.
Discrimination involving national origin also includes:
- Discrimination based on marriage to or association with persons of a nationality.
- Membership in or association with ethnic promotion groups.
- Attendance or participation in churches, schools, mosques, or temples generally associated with a national origin group.
- Physical appearance and a name associated with a national origin group.
Aside from Title VII, the Immigration and Nationality Act (INA) also protects people from employment discrimination related to citizenship or immigration status and bars document abuse discrimination, which happens when employers reject reasonably genuine-looking papers or ask for more or different documents than are needed to verify employment identity and eligibility.
Employers can prefer people of one nationality to another, but this is only allowed when nationality is a "bona fide occupational qualification" for the role, meaning that being of a particular nationality is necessary to be qualified for the job. For instance, being Indian might be a bona fide qualification when playing a character in a film involving an Indian family. That said, instances when it is legal to prefer a particular nationality are quite rare. An employer can't refuse to hire a potential employee because of their manner of speech or their accent, but whether the denial is unlawful depends on that person’s qualifications, the nature of the work, and whether the employee's manner of speaking was a detriment, or would be a detriment, to their job performance.
Requiring applicants or employees to be fluent English speakers is a form of nationality discrimination wherein an employer tests an employee in their English proficiency (their ability to write and/or speak English). Testing applicants in their English proficiency is not a violation if all the applicants are tested. However, if the potential employee is being denied work because of their English proficiency, the employer must show a legitimate, nondiscriminatory reason for this.
A rule requiring employees to always speak English at work is another form of national origin discrimination unless an employer proves it is essential for conducting business. If so, employees must be told when English must be spoken and what the consequences of violating this rule are.
Additionally, a non-citizen with valid work papers cannot be denied employment because the employer prefers to hire only citizens of their country—pursuing such a policy is illegal and U.S. citizenship can be a prerequisite for hiring only if it is required by federal, state, or local law, or by government contract.
The Department of Justice's Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) investigates accusations of workplace discrimination pertaining to one's nationality in workplaces with between four and 14 employees, while the Equal Employment Opportunity Commission (EEOC) deals with charges of discrimination related to one's nationality in workplaces with 15 employees or more.
If one suffers from discrimination in the workplace, there are a variety of ways they can receive compensation. In organizations with four to 14 employees, they can recover job offers and back pay or receive reinstatement. In organizations with 15 employees or more, they can receive a job offer, back pay, reinstatement, promotion, compensatory damages (for emotional pain and suffering), punitive damages (damages to punish the employer), and other compensation that will make them "whole" (returning them to the condition that they would have been in if there were no discrimination), as well as remedies that may also include payment of attorneys' fees, expert witness fees, and court costs.
Receiving such legal recourse can be complicated, however, and thus if one has suffered discrimination, it is recommended that they contact an attorney or a federal or state administrative agency soon after. The OSC handles charges against workplaces employing four to 14 workers, and these charges must be filed within 180 days from when the alleged violation occurred. For workplaces with 15 employees or more, all laws enforced by the EEOC require filing charges with the EEOC (or a cooperating state agency) prior to a lawsuit being brought to court.
Disparate Treatment Under Title VII
Under Title VII, disparate treatment of employees based on national origin encompasses any act that relates to any aspect of employment, including firing, hiring, training, promotion, payment, fringe benefits, and more. Thus, under this law, an employer cannot, for instance, deny a promotion to an employee because of their accent, except when that accent seriously hinders their work performance. Two Spanish-speaking employees, for example, could not be fired for conversing in Spanish with one another if it did not affect the quality of their work.
Also barred under this law is harassment concerning nationality. An offhand comment, mild teasing, or isolated incidents usually don’t constitute prohibited harassment. What does qualify is when this behavior occurs so often or is so intense that a toxic work environment is created or an adverse employment decision results from it. So, for instance, if you are Columbian and your manager makes hurtful, disparaging statements about Latinos on a daily basis, this could be considered harassment. Such conduct could be considered harassment even if your manager is Columbian, too. Likewise, if you are Japanese and your co-workers deride your origins and accent routinely, you might become depressed or angry, lose focus or lash out, and thereby get demoted. If this happened, you might have a legitimate harassment claim, and a harasser could be your manager, one of your co-workers, or even one of your clients.
Disparate Impact Under Title VII
Some employment actions do not seem like discrimination at first sight; however, an apparently neutral employment policy pertaining to all employees can still have a negative impact on groups of certain national origins. For instance, requiring employees to speak only English can have a bad effect on immigrant employees. Thus such a policy is not acceptable unless it is necessary to ensure safe, efficient work operations and if it is there for legitimate, nondiscriminatory business reasons only.
Likewise, if a diner had a policy that no servers could wear coverings near their faces or on their heads, it would have a negative effect on anyone who wore turbans or hijabs, and the diner would need to show that such a policy was job-related and in effect for a legitimate business need, not for discrimination. A server raising a disparate impact claim could still win if they showed that an alternate policy could have been applied that could have satisfied the same business need while having a less unfavorable impact and that the employer chose not to apply that policy.
National Origin Discrimination Checklist
In order to keep your organization from being liable for charges of nationality harassment discrimination, the following checklist of HR policies and employment practices that promote an inclusive organization may be of help:
- All job applications and posts should have an equal employment opportunity statement.
- When recruiting applicants and posting open positions, do not:
- State a preference related to nationality (such as “should not speak with a foreign accent” or “looking for only U.S.-born candidates”),
- Only rely on word-of-mouth referrals from current employees (as this tends to result in an applicant pool that can be too homogenous), or
- Send job postings exclusively to non-diverse communities or outlets.
- Do not reject applicants due to a name that sounds ethnic. One way to avoid this is to redact the names during the initial application review so that ethnic names do not inadvertently influence you.
- In interviews, refrain from questioning candidates on their ancestry, ethnicity, or accent, and do not make any other indirect or direct queries about nationality, even if your only intent is to be curious or friendly.
- If pre-employment testing or background checks are conducted, they should be conducted on all employees or candidates in a given job category and not just on individuals with accents, foreign-sounding names, or other cultural distinctions.
- Employees should not be segregated or isolated in accordance with their nationality. For instance, one should not keep all Indian employees out of the public eye or give all Hispanic employees lower-paying positions.
- Caution should be taken in imposing an English-only language rule—any language restrictions at work must be job-related and restricted to business necessity, and they should not be in effect during employee breaks or personal time while on the employer’s premises.
- Your harassment policy should bar discrimination based on nationality, and your workers should be trained to avoid stereotypes, ethnic slurs, mocking tones, and the like.
Finally, you should remember that co-worker and customer prejudices or preferences are no justification for discrimination in firing, hiring, discipline, or promotion decisions. A workplace that is culturally diverse can present management with unique issues, but it can also aid employers in staying relevant in an increasingly diverse society.
EEOC Updates Its National Origin Discrimination Guide
In 2016, the EEOC issued an updated enforcement guide on discrimination related to national origin. Intended to promote employer compliance and offer a better explanation of employee rights, the EEOC guide offers numerous examples and HR practices in a wide variety of scenarios that could cause Title VII national origin violations. It also shows how national origin discrimination often overlaps with other protected characteristics like color, race, or religion. Amongst the noteworthy points included in the updated guideline, the following are of especial note:
- National origin discrimination can occur against people from the United States. This occurs when foreign workers are favored over workers from the United States.
- Human trafficking is also covered under Title VII. According to the EEOC, along with holding criminal liability against those who use forced labor and/or exploit their workers, Title VII can also levy civil liability if this conduct occurs against people of a protected class, which includes the national origin.
- The joint employer doctrine also applies to the conjunction of client employers and staffing firms, meaning that if both a client employer and staffing firm have the statutory minimum number of employees and the ability to control the employment of the worker, these organizations can be considered joint employers. For instance, a staffing firm may be considered liable under Title VII if prompt action was not taken by it to correct discriminatory actions related to national origin made by the client’s employer.
- A blanket policy to not hire applicants who don’t have a Social Security number can be a violation of Title VII if work-authorized individuals in a national origin group are disproportionately screened out because of it. This is because the EEOC recognizes that employees can choose which documents to use to establish work authorization in the United States and that newly hired employees should be able to work if they have applied for but have not yet received a Social Security number.
- Lastly, it should be noted that preference for U.S. citizenship may be illegal if its purpose or effect is discriminatory on the basis of national origin.
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