Source: Workplace Fairness
Whether an employee or job applicant’s ancestry is Mexican, Russian, Filipino, Iranian, American Indian, or any other nationality, individuals are entitled to equal access to employment opportunities. Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate on the basis of national origin. This law applies to employers with 15 or more employees. It forbids discrimination based upon an individual’s birthplace, ancestry, culture, linguistic characteristics (common to a specific group) or accent. It also applies to individuals married to or associated with persons of a particular national origin, membership or association with specific ethnic promotion groups, attendance or participation in schools, churches, temples, or mosques associated with a national original group, or a surname associated with a national origin group. This section will explain national origin discrimination in greater detail. A subset of national origin discrimination is language discrimination. For more information on that please see our language discrimination page.
1. What is national origin discrimination?
When an individual is treated differently because of the country where they were born, their ancestry, culture, linguistic characteristics (if common to a specific ethnic group) or accent, they have been discriminated against on the basis of their national origin. An employment action based upon any of these things constitutes illegal discrimination. Discrimination of this kind goes beyond ia single individual’s characteristics.
National origin discrimination also includes discrimination based on:
- marriage to, or association with, persons of a national origin group;
- membership in, or association with, ethnic promotion groups;
- attendance or participation in schools, churches, temples or mosques generally associated with a national origin group; or
- a family name associated with a national origin group.
Some examples of national origin discrimination include:
- Affiliation: Harassing or otherwise discriminating because an individual is affiliated with a particular religious or ethnic group. For example, you are harassed because you are Arab or practice Islam, or are paid less than other workers because you are Mexican.
- Physical or cultural traits and clothing: Harassing or otherwise discriminating because of physical, cultural, or linguistic characteristics, such as accent or dress associated with a particular religion, ethnicity, or country of origin. For example, you are harassed by coworkers for wearing a hijab (a body covering and/or head-scarf worn by some Muslims), not hired because you have a dark complexion and an accent believed to be African. Height and weight requirements can also be evidence that an employer discriminates against a specific national origin, if the requirements do not relate to the job.
- Perception: Harassing or otherwise discriminating because of the perception or belief that a person is a member of a particular racial, national origin, or religious group, even if the person is not. For example, you’re a Chinese woman not hired because the hiring official believed that you were from Vietnam, or you are a Sikh man wearing a turban harassed by a coworker because the harasser thought you were Muslim.
- Association: Harassing or otherwise discriminating because of an individual’s association with a person or organization of a particular religion or ethnicity. For example, you are harassed because your husband is originally from Afghanistan, or you are not promoted because you attend a mosque.
If any of these things have happened to you on the job, you may have suffered national origin discrimination. Some workers experiencing national origin discrimination may also experience other forms of illegal discrimination as well, such as discrimination based on immigration or citizenship status discrimination, race or religion.
2. Which federal laws cover national origin discrimination?
Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon national origin. This extends to recruitment efforts, hiring, firing, or layoffs, based upon national origin.
The Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA), is a federal law covering almost all immigration matters. It protects individuals from employment discrimination based on immigration or citizenship status, and prohibits document abuse discrimination, which occurs when employers request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents, or specify certain documents over others.
While employees are also covered by many other workplace laws, these are the main federal laws that protect workers against discrimination based on national origin. Your state may also include national origin, or other similar qualities, such as “ancestry,” “place of birth” in its antidiscrimination law. For more information about what is covered by your state law, see our page on filing a complaint.
3. Who is protected under the law?
IRCA’s anti-discrimination provision prohibits discrimination against “protected individuals,” who include citizens or nationals of the United States, permanent residents, lawful temporary residents, refugees, and asylees.
U.S. citizens, U.S. nationals, and authorized non-citizens are protected from discrimination on the basis of national origin, if the employer employs more than 4 employees. While Title VII covers only those workplaces where the employer employs more than 15 employees, INA/IRCA prohibits discrimination on the basis of national origin in workplaces where the employer employs between 4 and 14 employees. Some states also make it illegal to discriminate on the basis of national origin. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.
The law’s protections apply to both current workers and job applicants. If you are a current employee and are fired or not promoted due to your national origin, you are protected under the law. If you are not hired due to your national origin, you are also protected under the law.
4. Which employers are covered by the law?
All employers with 4 or more employees are covered by the laws against national origin discrimination. While Title VII covers only those workplaces 15 or more employees, INA/IRCA prohibits discrimination on the basis of national origin in workplaces with between 4 and 14 employees. The only difference between the two antidiscrimination provisions relates to which governmental agency enforces the laws against your employer. Some states also make it illegal to discriminate on the basis of national origin. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.
5. Can I be discriminated against because my spouse and friends are of different nationalities?
No. The law prohibits discrimination based on your association with someone of a different national origin.
For example, if you are a Caucasian U.S. citizen, but your spouse and most of your friends are Middle Eastern, you may not be discriminated against because of your association with people of Middle Eastern origin, and may have a valid discrimination claim if you can prove you were discriminated against for this reason.
6. Can I be discriminated against because of the color of my skin?
No. Title VII specifically prohibits employment discrimination based on color, as well as race, religion, sex, and national origin. Whether you suffer discrimination due to skin color typically associated with your race or national origin, or are harassed due to an skin color not typical for your race or national origin, both are against the law.
7. Can a job application ask me to identify my national origin?
Some applications may ask you to identify your national origin for purposes of diversity, or compliance with governmental contracting requirements or a valid affirmative action plan. However, it should be completely voluntary for you to comply.
8. Can an employer choose employees of one national origin over another?
In some limited circumstances, employers are allowed to prefer one national origin to another. This is allowed only when national origin is what is called a “bona fide occupational qualification” for the position, which means that belonging to a certain national origin is necessary for the job.
For example, being of Latin origin might be a bona fide occupational qualification for a role in a movie featuring a Cuban family. Circumstances in which preferences for one national origin are allowed are very rare. The employer must be able to demonstrate the position has special qualifications that only members of one national origin can fulfill.
9. Can I be asked if I am a citizen?
An employer should not ask about your citizenship status during a job interview. The employer can only notify you as a job applicant that, should a job be offered to you, you will be expected to provide evidence that you are legally entitled to work in the US within the first three days of starting work. The employer should say this to every job candidate, as saying this selectively may be illegal discrimination.
10. I am a non-citizen with valid work papers. Can I be denied employment because my employer prefers to hire only citizens?
Generally not. A “U.S. citizens only” policy in hiring is illegal. An employer may require U.S. citizenship for a particular job only if it is required by federal, state, or local law, or by government contract.
11. My employer’s clients and customers do not like people who “look foreign.” Can I be reassigned or denied a job based on their preferences?
No. Client or customer preferences do not allow your employer to engage in illegal discrimination. Refusing to hire someone because customers or co-workers may be “uncomfortable” with that person’s national origin is just as illegal as refusing to hire that person because of religion or national origin in the first place. Similarly, an employer may not fire someone because of national origin. This prohibition applies to other employment decisions as well, including promotion, transfers, work assignments and wages.
12. Can I be asked to take an English test?
Your employer or potential employer can test an employee on English proficiency (ability to speak or write in English), as long as the the employer tests all applicants. However, if the employer or potential employer denies someone an employment opportunity because of English proficiency, the employer must show a legitimate, nondiscriminatory reason. Whether or not it is illegal to use the English test will depend on the qualifications of the employee, the nature of the position, and whether the employee’s level of English proficiency would have a negative effect on job performance. Requiring employees or applicants to be fluent in English may violate the law if the rule is not related to the requirements of the position or job performance, and it appears that the rule was adopted to exclude individuals of a particular national origin. For more information about language discrimination, please see our language discrimination page.
13. Can an employer refuse to hire me or give me negative reviews for speaking with an accent?
An employer must show a legitimate, nondiscriminatory reason for denying an employment opportunity because of an individual’s accent or manner of speaking. Whether the denial is illegal will depend on the qualifications of the person, the nature of the position, and whether the employee’s accent or manner of speaking harmed, or would harm, job performance. Requiring employees or applicants to be fluent in English may violate Title VII if the rule is adopted to exclude individuals of a particular national origin and is not related to job performance. For more information about language discrimination, please see our language discrimination page.
14. Can I be asked not to speak my native language at work?
A rule requiring employees to speak only English at all times on the job may violate the law, unless an employer shows it is necessary for conducting business. If an employer believes the English-only rule is critical for business purposes, employees have to be told when they must speak English and the consequences for violating the rule. Any negative employment decision based on breaking the English-only rule will be considered evidence of illegal national origin discrimination if the employer did not tell employees of the rule. See our page on language discrimination for more information.
15. Can I be asked not to wear the clothing of my native country at work?
Wearing the clothing of your native country can be an expression of your national origin, as well as your race or religion. Discrimination or harassment on any of these bases is against the law.
Your employer may try to justify denying you the ability to wear your native or religious clothing at work based on concerns about offending or losing customers. However, customer preference is never a justification for a discriminatory practice. Refusing to hire someone because customers or co-workers may be “uncomfortable” with that person’s religion or national origin is just as illegal as refusing to hire that person because of religion or national origin in the first place. Similarly, an employer may not fire someone because of religion and/or national origin. This applies to other employment decisions as well, including promotion, transfers, work assignments and wages.
If your employer wants to lawfully prevent you from wearing this clothing, the employer would need to show that allowing you to wear this clothing would pose an undue hardship on the business. Real or perceived customer preference would rarely, if ever, meet the undue hardship standard. According to some courts, to bring a discrimination claim on this basis, you would need to show, in addition to your employer’s act of discrimination, that you were harmed by your employer’s actions, such as assigned to a position of less responsibility or pay.
If you have been asked to remove or not wear clothing that is part of your national or religious identity, you may want to ask your employer to be allowed to wear this clothing. If you are denied, you should consult with an attorney, federal or state antidiscrimination agency, or shop steward or grievance person (if you are a union member) first before either wearing the clothing or risking employer discipline.
16. Are ethnic jokes or slurs about my national origin against the law?
Title VII prohibits offensive conduct, such as ethnic slurs, that create a hostile work environment based upon national origin. Employers are required to take appropriate steps to prevent and correct unlawful harassment. Likewise, employees are responsible for reporting harassment at an early stage to prevent its escalation.
17. Can I be assigned a particular kind of job, or to a certain neighborhood or territory because of my national origin?
It is against the law to limit, segregate, or classify employees or applicants for employment in any way which would deprive them of employment opportunities or otherwise adversely affect their employment status, because of their national origin, race, color, religion, or sex.
Therefore, an assignment or placement based on your national origin or race that negatively affects your pay, status in the company, or ability to advance would be against the law. An assignment made for legitimate, nondiscriminatory reasons and that does not negatively affect you would be legal.
18. Who enforces the law?
The Department of Justice’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) is responsible for investigating charges of job discrimination related to an individual’s national origin in workplaces with 4 to 14 employees.
The Equal Employment Opportunity Commission (EEOC) is responsible for investigating charges of job discrimination related to an individual’s national origin in workplaces of 15 or more employees.
Many states also have laws against national origin discrimination, generally enforced by a state anti-discrimination agency. The minimum number of employees necessary to file a claim varies. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.
19. How can I file a complaint?
Trying to determine where to file first can be complicated, because there are many agencies that process claims of discrimination based on national origin. Here are some basic principles to follow, depending on the size of your workplace:
- If there are 15 or more employees in your workplace, see our page on filing a complaint.
- If there are 4-14 or more employees in your workplace, consult OSC and your state anti-discrimination agency. To find out if the law in your state covers workplaces of this size, please see our page on the minimum number of employees needed to file a claim under your state law.
- If there are three or fewer employees in your workplace, consult your state anti-discrimination agency. To find out if the law in your state covers workplaces of this size, please see our page on the minimum number of employees needed to file a claim under your state law. If it does not, then you will probably not be able to file a legal claim, but you should check with a local attorney to make sure.
20. What are the remedies available to me?
Victims of national origin discrimination at workplaces of 4 to 14 employees can recover back pay, job offers and reinstatement. OSC settlements require employers to stop discriminatory practices, pay civil penalties, undergo monitoring, and receive anti-discrimination training.
Victims of national origin discrimination at workplaces of 15 or more employees can recover remedies that include:
- back pay
- front pay
- compensatory damages (emotional pain and suffering)
- punitive damages (damages to punish the employer)
- other actions that will make an individual “whole” (in the condition he or she would have been but for the discrimination)
Remedies also may include payment of:
- attorneys’ fees
- expert witness fees
- court costs.
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.
The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case.
Your state law may allow for greater or different remedies than federal law (see our page on filing a complaint).
21. How much time do I have to file a charge of discrimination?
To protect your legal rights, it is always best to contact a state or federal adminstrative agency or an attorney soon after discrimination is suspected.
For workplaces with 4-14 employees, a charge must be filed with OSC within 180 days from the date of the alleged violation.
For workplaces with 15 or more employees, please note that all laws enforced by EEOC require filing a charge with EEOC (or a cooperating state agency) before a private lawsuit may be filed in court. Many states also require that you file first with a state anti-discrimination agency or EEOC. There are strict time limits within which charges must be filed.
See our page on filing a complaint for more information.
22. More Information About National Origin Discrimination:
On June 2, 2016 the EEOC announced that it was going to release enforcement guidelines addressing national Origin discrimination under Title VII of the Civil Rights Act of 1964. The guide will discuss agency policy and explain how the laws and regulations apply to specific workplace situations. The 30 day input period was extended to July 5, 2015. At this point in time, the EEOC is reviewing the input and is making appropriate revisions. Upon the revisions being completed, a final guide will be released to replace the Compliance Manual on National Origin Discrimination that was issued in December 2002. Please check back for further developments on this resource.
Office of Special Counsel
EEOC Facts About National Origin Discrimination
EEOC Questions and Answers About the Workplace Rights of Muslims, Arabs, South Asians, and Sikhs Under The Equal Employment Opportunity Laws
EEOC Statistics on Charges of National Origin Discrimination
Law Office of Bryan A. Chapman
Bryan A. Chapman, Esquire