Chapter 7
National Origin
Discrimination
McGraw-Hill/Irwin
Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.
Learning Objectives
 Describe the impact and implications of the
changing demographics within America on the
American workforce
 Define the prima facie case for national origin
discrimination under Title VII
 Explain the legal status surrounding “Englishonly policies” in the workplace
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Learning Objectives
 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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Introduction
 The U.S. is a melting pot of different cultures
 Traditional distinctions in the law between race
and national origin are becoming blurred
 A decision based on either race or national
origin is illegal
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Legislation Prohibiting National Origin
Discrimination
 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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Realities about National Origin
Discrimination
 “Citizenship” and “national origin” are not
synonymous
 All business establishments (e.g. restaurants)
must abide by Title VII non-discrimination
principles during hiring
 It is illegal discrimination for an employer to
require that employees speak only English at
work
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The Changing Workforce
 In 2009, foreign-born workers represented more
than 15.5 percent of U.S. workers
 The median weekly earnings of foreign-born fulltime workers was significantly less than for nonforeign-born workers
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The Changing Workforce
 By 2018, the U.S. workforce is expected to be
comprised of
 17.6 percent Hispanics
 12.1 percent African-Americans
 5.6 percent Asians
 Complaints based on alleged national origin
discrimination on the rise since 1999
 Represents the fastest-growing source of complaints
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Regulatory Overview
 National origin discrimination protection
offered by Title VII: It is unlawful for an
employer to limit, segregate, or classify
employees
 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
 An employee may claim discrimination on the
basis of national origin if
 He or she is a member of a protected class
 He or she was qualified for the position for which he
or she applied or in which he or she was employed
 The employer made an employment decision against
this employee or applicant.
 The position was filled by someone who was not a
member of the protected class
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Member of the Protected Class
 Based only on country of origin, not on country
of citizenship
 No protection based on status as aliens
 National origin encompasses:
 Employee’s place of birth
 Ethnic characteristics or origins
 Physical, linguistic, or cultural traits closely associated
with a national origin group
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Qualification/BFOQs
 Claimant must show that he or she meets the
job’s requirements
 No accommodation of one’s national origin is
required of employers
 An employer may set forth why a specific
national origin is a legitimate job requirement
(bona fide occupational qualification)
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English Fluency and Speaking Native
Languages in the Workplace
 “English-only” policies have become increasingly
relevant
 Employers should not permit managers to
arbitrarily impose language restrictions
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English Fluency and Speaking Native
Languages in the Workplace
 To be protected the employer must show
 English fluency is required for the job
 The requirement is necessary to maintain supervisory
control of the workplace
 English-only rules
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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
 It includes
 Demotion
 Termination
 Removal of privileges afforded to other employees
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Adverse Employment Action and
Dissimilar Treatment
 Adverse effect may arise from
 Disparate treatment
 Disparate impact
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Harassment on the Basis of National
Origin
 Claims have been on a sharp increase
 Not all harassment is prohibited
 Must be severe or pervasive
 Common concerns include
 Ethnic slurs
 Workplace graffiti
 Other offenses based on employee traits
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Guidelines on Discrimination Because
of Religion or National Origin
 Applies to federal agencies or employers who
enter into contracts with a government agency
 Individuals must be hired and retained without
regard to their religion or national origin
 The guidelines impose on the federal contractor
an affirmative obligation to prevent
discrimination
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Guidelines on Discrimination Because
of Religion or National Origin
 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
 Native Americans
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Middle Eastern Discrimination After
September 11, 2001
 “Code Z”
 Key discrimination issues
 Different treatment due to attire
 Ethnic harassment, particularly in relation to security
concerns
 More stringent security checks or other
preemployment requirements
 Effective resolution – Sensitivity to employee’s
concerns
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Citizenship and the Immigration Reform
Control Act
 Legal aliens are often restricted from access to
certain government or other positions by statute
 “Political function” exception
 Immigration Reform and Control Act
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Citizenship and the Immigration Reform
Control Act
 Difference between Title VII and IRCA
 Title VII – does not require proof of discriminatory
intent
 IRCA – requires that the adverse action be knowingly
and intentionally discriminatory
 Innocent or negligent discrimination is a
complete defense to a claim of discrimination
under IRCA
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Undocumented Workers
 IRCA makes it unlawful for employers to hire,
recruit, or refer for a fee to unauthorized workers
 Employers are required to verify all newly hired
employees
 Form I-9
 “No-match” rule implemented in 2007
 Supplemental Proposed Rule in March 2008
 Supplemental Final Rule in October 2008
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Undocumented Workers
 Obama administration
 Rescinded “no-match” rule in 2009
 Focused on civil and criminal actions against
employers that knowingly hired undocumented
workers
 Immigration and Customs Enforcement (ICE)
 IRCA
 Employers subjected to random compliance
inspection under the General Administrative Plan
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Undocumented Workers
 EEOC
 Workers’ undocumented status does not justify
workplace discrimination
 Employers may be liable for monetary remedies
 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
 Identifiable classes of persons who are
subjected to intentional discrimination solely
because of their ancestry or ethnic
characteristics
 Section 1981 – discrimination because of what
they are
 St. Francis College v. Al-Khazraji
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Management Tips
 In case of BFOQs ensure that only persons of
that origin are selected
 Employees can file national origin discrimination
claims even if they have been simply perceived
to be of a particular origin
 Customer, client, or co-worker preference,
comfort, or discomfort cannot be stated as the
source of BFOQ.
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Management Tips
 Federal contractors must follow the Guidelines
on Discrimination Because of Religion or
National Origin
 Before instituting a policy, consider the
implications of both Title VII and IRCA
 Recognize the concerns of Middle Eastern
employees in the post-September 11 era
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