Facts About National Origin Discrimination

Federal and state laws in the U.S. protect people against discrimination in the workplace. Most employers are familiar with laws against sexual and racial discrimination. A lesser-known protection is that of national origin.

National origin is the same as ethnic identity. It differs in some important ways from racial discrimination. This article discusses the laws about national origin discrimination and harassment. It also tells how business owners can protect themselves and their workers.

Basics of Title VII

The Civil Rights Act of 1964 protects the civil rights of Americans in a wide range of situations. Title VII of the Civil Rights Act of 1964 protects people against employment discrimination based on:

• Race
• Color
• Religion
• Sex
• National origin

In 2020, the U.S. Supreme Court held that Title VII's protections also apply to discrimination based on sexual orientation and gender identity. Another law, the Age Discrimination in Employment Act (ADEA), prevents discrimination based on age.

Title VII covers any employer with more than 15 employees. Many state laws have workplace discrimination rules that cover small businesses with fewer employees. The Equal Employment Opportunity Commission (EEOC) oversees anti-discrimination laws.

What Does National Origin Mean?

According to the EEOC, "national origin" is a specific category different from race or immigration status. The EEOC defines national origin as people who:

• Share a common place of origin, such as a country (i.e., Mexico), a former country (i.e., Yugoslavia), or an ethnic region within a country (i.e., Iraqi Kurdistan)
• Share a common language, culture, ancestry, or social characteristics
• Are perceived to be members of a particular ethnic group

National origin is not related to race, gender, or religion. Other protected classes may become entangled with national origin in harassment or discrimination lawsuits.

Job Discrimination vs. Harassment

Small business owners should know the difference between workplace discrimination and harassment. One way to think of it is that discrimination affects all group members. Harassment affects one member of a group.

Refusing to hire people of one race is discrimination. Making racially insensitive jokes in the office is harassment. State law may force employers to have their anti-discrimination policy posted in the human resources department. They also may need to put harassment policies in the employee handbook. Sample forms are available through the EEOC. You may also need to give your managers anti-harassment and anti-bullying training.

National Origin Discrimination

Title VII prohibits discrimination based on national origin. National origin discrimination includes:

• Discrimination against those who speak another language or have an accent
• Discrimination against those married to or children of recent immigrants
• Discrimination against those perceived to be of a specific ethnicity, even if they are not
• Discriminating against a person of one's own ethnic group or nationality

For instance, a business owner from Iraq cannot refuse to hire a Kurdish worker from Iraq and then claim it isn't discrimination because they're both from Iraq. The protection applies to everyone.

Making employment decisions based on an employee's national origin is discrimination.

English-Only Rules

Employers may not force workers to speak only in English at work. National origin laws protect against accent discrimination, English fluency requirements, and English-only breakroom rules.

Employers may have English-only rules for safety reasons or job performance. The employer must clearly explain why English or fluency requirements are essential for job performance. For instance, a heavy accent and inability to speak basic English would be a hazard in a 911 call center position. Employers must provide notice of English-only rules.

National Origin Harassment

Harassment based on national origin is any behavior directed at an employee's ethnicity that is unwelcome and unwanted. Excessive harassment creates a hostile work environment and may be grounds for a lawsuit. Harassment may come from a coworker or even from a regular vendor or visitor to the workplace. Suppose the employer is aware of the harassment but allows it to continue. In that case, the employer may be liable for the continued harassment.

The EEOC investigates claims of harassment. Harassment may involve many claims, for instance, a sexual harassment claim made by a Hispanic woman. The EEOC also bans employers from retaliating against workers who file claims or take part in any job-related investigation.

Immigration-Related Discriminatory Practices

Federal law prohibits employers from discriminating against job applicants based on citizenship or immigration status. The Immigration Reform and Control Act of 1986 (IRCA) applies to employers with four or more employees.

Suppose an employee may work in the United States and can prove employment eligibility with a document on the DHS I-9 form. In that case, an employer may not reject the worker, saying, "We only hire U.S. citizens."

The U.S. Department of Justice Civil Rights Division states that under the Immigration and Nationality Act (INA), employers may not ask employees about their citizenship or immigration status during the hiring process.

Suppose an employer must hire U.S. citizens or lawful permanent residents (LPRs) because of the nature of the job. In that case, the job description must state the reason. Examples include federal jobs requiring a security clearance or overseas government contracts.

Government Agencies and Acts

This list contains other government agencies employers can turn to for guidance on employment laws. There are also links to employee rights and anti-discrimination regulations.

• U.S. Department of Labor (DOL). Oversees all workplace-related laws and labor laws.
• Small Business Administration (SBA). Helps small and startup businesses in the United States.
• Occupational Safety and Health Administration (OSHA). Helps ensure safe and healthy working conditions by setting and enforcing safety standards.
• Americans with Disabilities Act (ADA). This act forces employers and workers to make reasonable accommodations for disclosed disabilities. It prevents employment discrimination based on known or perceived disabilities.
• Equal Pay Act (EPA). An amendment to the FLSA, this act demands "equal pay for equal work" between men and women.
• Fair Labor Standards Act (FLSA). This law broadly covers all employment practices, including federal minimum wage, recordkeeping, overtime pay, and time off work. The FLSA was the first government act about employment. States later copied and expanded the law.
• Family and Medical Leave Act (FMLA). The FMLA guarantees 12 weeks of unpaid leave for qualified employees for personal health care, paternal leave, or pregnancy care.
• Genetic Information Nondiscrimination Act (GINA). This is a proactive law enacted in 2008. This law prevents discrimination based on genetic test results. It forbids insurers from restricting membership in group health plans because of a genetic condition.
• Pregnancy Discrimination Act (PDA). Another amendment to Title VII, this rule prohibits discrimination against pregnancy or childbirth.

Legal Help for Employers

Suppose one of your employees claims national origin discrimination. In that case, you should consult an employment law attorney. They can help you understand your legal options. Get advice and help with an employment discrimination claim.