This chapter discusses national origin discrimination under Title VII and other relevant laws. It covers the changing demographics of the US workforce, defines a prima facie case of national origin discrimination, and examines issues related to English fluency requirements, citizenship status, harassment, and protections for undocumented workers. The chapter provides guidance for employers on complying with anti-discrimination laws and avoiding national origin discrimination claims.

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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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 Workers2
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 Tips1
• 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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Management Tips 2
• 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.