Lecture 6

National Origin
Discrimination

7-1
 Chapter 7
National Origin
Discrimination

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 Learning Objectives (1)
 Describe the impact and implications of the
changing demographics on the American
workforce
 Define the prima facie case for national origin
discrimination under Title VII
 Explain the legal status surrounding “English-
only policies” in the workplace

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 Learning Objectives (2)
 Describe a claim for harassment based on
national origin and discuss how it might be
different from one based on other protected
classes
 Identify the difference between citizenship and
national origin
 Explain the extent of protection under the
Immigration Reform and Control Act

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Education. 7-4
 Introduction
 United States is considered a melting pot of
different cultures
 National origin was included in Title VII’s list of
protected classes
 Ensures that that employers did not make
employment decisions based on employees’ or
applicants’ country of origin

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 Legislation Prohibiting National Origin
Discrimination
 Statutes
 Title VII, Civil Rights Act of 1964
 Sec. 703(a)

 Immigration Reform and Control Act of 1986

 Sec. 274A(a)
 Sec. 274(B)(a)

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 The Changing Workforce
 In 2015, there were 26.3 million foreign-born
workers in the U.S. workforce
 16.7 percent of the total labor force

 The median weekly earnings of foreign-born full-

time workers were significantly less than for non-
foreign-born workers
 Complaints to the EEOC based on alleged
national origin discrimination have been on the
rise since 1997
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 Regulatory Overview (1)
 National origin discrimination protection
offered by Title VII: It is unlawful for an
employer to limit, segregate, or classify
employees
 Employer should not discriminate in any way on the
basis of national origin that would deprive them of the
privileges, benefits, or opportunities of employment

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 Regulatory Overview (2)
 Employee may successfully claim discrimination
on the basis of national origin if it is shown that:
 She or he is a member of a protected class
 She or he was qualified for the position for which she
or he applied or in which she or he was employed
 Employer made an employment decision against this
employee or applicant
 Position was filled by someone who was not a
member of the protected class

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 Member of the Protected Class (1)
 National origin encompasses:
 Employee’s place of birth
 Ethnic characteristics or origins
 Physical, linguistic, or cultural traits closely associated
with a national origin group
 No protection based on status as aliens
 Law provides protection against discrimination based
only on country of origin, not on country of citizenship

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 Qualification/BFOQs
 Claimant must show that he or she meets the
job’s requirements
 Employer may claim that national origin is
actually a bona fide occupational qualification for
a job (BFOQ)
 Case: Espinoza v. Farah Mfg. Co.

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English Fluency as a qualification, and
Language Restrictions (1)
 Fluency requirements, “English-only” policies,
and accent rules have become increasingly
relevant in the workplace
 May be based on hostile work environment, disparate
treatment, or disparate impact
 Case: Pachero v. New York Presbyterian Hospital
 EEOC has pointed out that the degree of fluency
required varies from job to job
 Blanket fluency requirements applying to all jobs
might not be legal

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English Fluency as a qualification, and
Language Restrictions (2)
 Courts have allowed restrictions that were based
on sound business interests
 Closely examine employment decisions based on
accent
 Scenario 1

 English fluency is required for supervisory control of

the workplace
 Case: Garcia v. Spun Steak

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 Adverse Employment Action and
Dissimilar Treatment
 Adverse employment action: Any action or
omission that takes away a benefit, opportunity,
or privilege of employment from an employee
 Includes:
 Demotion
 Termination
 Removal of privileges afforded to other employees

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 National Origin-based Harassment
 Claims have been on a sharp increase
 Familiar prima facie case elements
 Claims are only actionable if the harassment was so
severe or pervasive that the workplace was found to
be hostile or abusive
 Common incidents - Ethnic slurs, workplace
graffiti, other offenses based on presumed
employee traits
 Key concern is whether a reasonable person
would find the conduct offensive and/or hostile
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 Guidelines on Discrimination Because of
Religion or National Origin (1)
 Guidelines on Discrimination Because of
Religion or National Origin: Federal guidelines
that apply only to federal contractors or agencies
and that impose on these employers an
affirmative duty to prevent discrimination
 Applies to federal agencies or employers who enter
into contracts with a government agency
 Ensure that individuals are hired and retained without
regard to their religion or national origin

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 Guidelines on Discrimination Because of
Religion or National Origin (2)
 Provisions include the following ethnic groups:
 Eastern, Middle, and Southern European
ancestry, including Jews, Catholics, Greeks, and
Slavs
 Excluded because of coverage elsewhere
 Blacks, Spanish-surnamed Americans, Asians,
and Native Americans

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 Middle Eastern Discrimination After
September 11, 2001 (1)
 “Code Z” established by EEOC
 Created to designate complaints of “backlash
discrimination” from individuals who are perceived to
be Muslim, Sikh, Arab, Middle Eastern, or South
Asian

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 Middle Eastern Discrimination After
September 11, 2001 (2)
 Key discrimination issues
 Different treatment because of religious attire
 Ethnic harassment, which may unfairly relate to
security concerns
 More stringent security checks or other pre-
employment requirements
 Effective prevention - Sensitivity to employees'
concerns about possible instances of ethnic
harassment

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Citizenship and the Immigration Reform
Control Act (1)
 Non-US citizens are often restricted from access
to certain government or other positions by
statute
 “Political function” exception
 Case: Espinoza v. Farah Manufacturing Company

 Immigration Reform and Control Act (IRCA)

 Unlawful to knowingly hire, recruit, or refer aliens not
authorized to work in the United States

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Citizenship and the Immigration Reform
Control Act (2)
 Employers not subject to Title VII’s prohibitions
because of small size may still be covered by
IRCA’s anti-discrimination provisions
 Employers with 4 to 14 employees are prohibited from
discriminating on the basis of national origin
 Employers with 4 or more employees may not
discriminate on the basis of citizenship

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 Undocumented Workers (1)
 IRCA made it unlawful for employers to hire,
recruit, or refer for a fee to non-citizens who are
not authorized to work
 Employers are required to verify all newly hired
employees using a Form I-9
 Department of Homeland Security ruled that
employers must terminate all “no-match”
workers
 “No-match” workers - Workers who used false social
security numbers

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 Undocumented Workers (2)
 Obama administration focused on Employers
 Reviewed the “no-match” rule in 2009
 Social Security Administration issues notices to
employers with employees whose Social Security
numbers did not “match” the SSA’s records
 Immigration and Customs Enforcement (ICE) sends
Notice of Inspection to employers
 IRCA
 Employers subjected to random compliance
inspection under the General Administrative Plan

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 Undocumented Workers (3)
 EEOC
 Workers’ undocumented status does not justify
workplace discrimination
 Employers' liability for monetary remedies promotes
the goal of deterring unlawful discrimination
 Case: Hoffman Plastic Compounds Inc. v. NLRB

 Fair Labor Standards Act

 Protects unauthorized workers from abuse

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 Alternate Basis for National Origin or
Citizenship Discrimination: Section 1981
 Law applies to identifiable classes of persons
who are subjected to intentional discrimination
solely because of their ancestry or ethnic
characteristics
 Section 1981 – Relates to discrimination
because of ethnic characteristics or race
 St. Francis College v. Al-Khazraji
 Later cases: Narrow interpretation

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 Management Tips (1)
 Only individuals of an origin can do the specific
job based on the BFOQ
 Employees can file national origin discrimination
claims even if they have been simply perceived
to be of a particular origin
 English fluency may be required but one is not
allowed to discriminate because of an accent
 Customer, client, or co-worker preference,
comfort, or discomfort cannot be stated as the
source of BFOQ
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 UAE National Origin Legislation
 https://en.wikipedia.org/wiki/United_Arab_Emirat
es_Anti-Discrimination_Law
 https://app.croneri.co.uk/topics/employment-law-
united-arab-emirates/indepth

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