Chapter 3

Race, Color, and

National Origin
Discrimination
Race and Color Discrimination

Employers with 15 or more employees are prohibited

from discriminating in any aspect of employment based
on race, color, ethnicity, or any characteristics
associated with these classifications.

Title VII also prohibits employers from retaliating against

individuals for filing a racial discrimination claim or for
assisting another individual in pursuing a racial
discrimination claim under the statute.
The Prohibition of Racial Discrimination
Relates to an Individual’s Race
AND
Traits Associated with an
Individual’s Race
Discrimination Based on
Race & Color
Race discrimination refers to:
• One’s own race
• Characteristics of race (hair texture, skin color, facial
features)
• An individual’s marriage or association with someone of a
particular race
• An individual’s connection with an organization or group
associated with people of a certain race or color
Color discrimination refers to:
• Unfavorable treatment because of skin color or complexion
Remember:

Discrimination May be Intentional

(Disparate Treatment)
Or
Discrimination May be Unintentional
(Disparate Impact)
Disparate Treatment
Discrimination
• Disparate treatment discrimination relates to employer
conduct regarding race discrimination with intent.
• An employer can be liable for a claim of disparate
treatment for racial discrimination by refusing to hire
individuals belonging to a certain race or segregating a
classifications of people in the workplace, or isolating
members of a protected class from clients or customers.
• Employers could be subject to liability if they limit
recruitment efforts to non-diverse applicant pools.
Disparate Impact Discrimination

Disparate impact discrimination based on race materializes

when an employer engages in what appears to be neutral
conduct, but the conduct results in a disproportionate
impact on individuals belonging to a particular race.
 National Origin Discrimination

• National origin
• Ethnicity
• Citizenship
• Language
National Origin Discrimination

• National origin discrimination involves treating people

(applicants or employees) unfavorably
• because they are from a particular country or part of the world,
• because of ethnicity or accent, or
• because they appear to be of a certain ethnic background (even
if they are not).
• National origin discrimination also can involve treating
people unfavorably because they are married to (or
associated with) a person of a certain national origin.
• Discrimination can occur when the victim and the person
who inflicted the discrimination are the same national origin.
 National Origin Discrimination

• It is unlawful to harass a person because of his or her national origin.

• Harassment can include, offensive or derogatory remarks about a
person's national origin, accent or ethnicity.
• The law does not prohibit simple teasing, offhand comments, or
isolated incidents that are not very serious.
• Harassment is illegal when it is so frequent or severe that it creates
• a hostile or offensive work environment or
• when it results in an adverse employment decision (such as the victim
being fired or demoted).
• The harasser can be the victim's supervisor, a supervisor in another
area, a co-worker, or someone who is not an employee of the
employer, such as a client or customer.
 National Origin Discrimination

A few examples of possible national origin discrimination

include, but are certainly not limited to, the following:
• An employer refuses to interview people with Hispanic-
sounding surnames on their applications or resumes.
• An employer will not allow anyone with an accent to work
with the company's customers.
• Employees of a certain national origin are paid less than
employees of other national origins.
• Expressing the belief that a particular employee does “not
fit” the culture of the company.
• An employer fosters an environment that is hostile based
on a person’s national origin.
 National Origin Discrimination
Ethnicity

The traditional definition of race and ethnicity is related to

biological and sociological factors respectively.
• Race refers to a person's physical characteristics, such as
bone structure and skin, hair, or eye color.
• Ethnicity, however, refers to cultural factors, including
nationality, regional culture, ancestry, and language.
 National Origin Discrimination
Race versus Ethnicity

• An example of race is brown, white, or black skin (all from

various parts of the world), while an example of ethnicity
is German or Spanish ancestry (regardless of race) or Han
Chinese.

https://www.diffen.com/difference
/Ethnicity_vs_Race
• Your race is determined by how you look while your
ethnicity is determined based on the social and cultural
groups you belong to. You can have more than one
ethnicities but you are said to have one race, even if it's
"mixed race".
 National Origin Discrimination
Citizenship
• The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal
for an employer to discriminate with respect to hiring, firing, or
recruitment or referral for a fee, based upon an individual's citizenship
or immigration status.
• The law prohibits employers from hiring only U.S. citizens or lawful
permanent residents unless required to do so by law, regulation or
government contract.
• Employers may not refuse to accept lawful documentation that
establishes the employment eligibility of an employee, or demand
additional documentation beyond what is legally required, when
verifying employment eligibility (i.e., completing the Department of
Homeland Security (DHS) Form I-9), based on the employee's national
origin or citizenship status. It is the employee's choice which of the
acceptable Form I-9 documents to show to verify employment eligibility.
 National Origin Discrimination
Language
• An employer can only require an employee to speak fluent
English if fluency in English is necessary to perform the job
effectively.
• An "English-only rule", which requires employees to speak
only English on the job, is only allowed if
• it is needed to ensure the safe or efficient operation of the
employer's business and
• is put in place for nondiscriminatory reasons.
• An employer may not base an employment decision on an
employee's foreign accent, unless the accent seriously
interferes with the employee's job performance.
Language Issues

• Often arise within the context of national origin

discrimination
 Accent discrimination
 Fluency requirements
 English-only rules: closely scrutinized

Note: Customer preference is not a defense to a

discrimination claim. i.e. Non accented servers are promoted
over accented servers because customers prefer servers
without foreign accents
Hostile Work Environment
Claims May Arise in this Context
Hostile work environment discrimination claims may arise
when individuals are subject to unwelcome, offensive, and
pervasive behavior and ridicule at the workplace based on
their protected class membership, which includes race,
color, and national origin.

Note: Although claims for hostile work environment are

often discussed within the context of sexual harassment,
these types of claims may materialize based on
membership in any protected class.