Facts About National Origin Discrimination

Workers in the United States are guaranteed certain protections against employment discrimination. Under Title VII of the Civil Rights Act of 1964, individuals are protected against employment discrimination on the basis of national origin, race, color, religion, age, and sex.

Most employers are covered by Title VII, including any employer with 15 or more employees. However, many states have their own workplace discrimination laws that may cover employers with fewer workers.

National Origin Discrimination in Employment

It is prohibited to discriminate against employees or applicants based on national origin. National origin includes those born in another country or people perceived to be part of a nationality or ethnic group. National origin protections also protect those who speak with an accent or speak another language.

Employment laws also protect people based on a perceived nationality, even if it is not correct. National origin discrimination can also apply to treating workers differently because their parents are from another country or because they are married to someone from another part of the world.

Just because someone is from the same ethnic group is not a defense to national origin discrimination or harassment. For example, a boss who is from India cannot discriminate against another worker from India based on their national origin or other protected status.

Employment protections include any aspect of employment, including hiring, compensation, job assignments, opportunities, training, benefits, layoffs, and termination.

Speak English-Only Rule

Some workers are discriminated against based on their native language or accent. National origin laws protect an employee in:

• Accent discrimination
• Fluency requirements
• English-only rules

An employer cannot make decisions based on an employee's accent unless the workers' accent materially interferes with their ability to communicate as required by the job. Fluency in English is only permitted if it is necessary for the performance of the position.

Any English-only rules must be limited to nondiscriminatory reasons, including where it is necessary for safety or job performance. Workers cannot be prohibited from speaking another language while on their breaks or while not working. Employers have to provide notice of any English-only rules.

Workplace Harassment

When national origin harassment is persistent, pervasive, or severe, it can create a hostile work environment. Harassment can occur between management and employees or between co-workers. Employers could be responsible for harassment from contractors or customers when they knew or should have known about the harassment and failed to take action.

Harassment may take the form of name-calling, insults, offensive pictures, physical threats, jokes, and ethnic slurs. A worker may have a claim for harassment when the conduct is continuing or so severe and pervasive, a reasonable person would consider the workplace intimidating, hostile, or abusive.

Workplace harassment laws also prohibit retaliation for workers who report harassment, file a discrimination charge, or participate in an official investigation or proceeding.

Immigration-Related Discriminatory Practices

Some employers may try and avoid using workers they think may be from another country because they don't want to have to deal with immigration laws. However, the Immigration Reform and Control Act of 1986 (IRCA) prohibits employers with 4 or more employees from discriminating based on citizenship or immigration status.

Employees hired must be legally authorized to work in the United States but the employer cannot discriminate based on national origin. Documentation that establishes their employment eligibility is usually based on the Department of Homeland Security (DHS) Form I-9. It is up to the employee to choose which documents to provide to verify employment eligibility.

For example, a manager at a grocery store is hiring a new clerk. The prospective employee provides their Employment Authorization Document (Form I-766) with a photograph, which qualifies as documentation that establishes both identity and employment authorization. The employer cannot turn the worker away and tell them they only want to hire U.S. citizens.

Some jobs are required by law to only employ U.S. citizens or lawful permanent residents (LPR). This includes some federal government jobs, jobs requiring a security clearance, and government contract workers.

Legal Help for Employers

If one of your employees claims to be a victim of discrimination based on national origin or native language, you should consult with an employment law attorney who understands what employers are facing. An employment law attorney can help you understand your legal options and help protect your business. Contact an employment attorney for legal advice and help with an employment discrimination claim.