National Origin, Discrimination, and Employers—Oh My!

April 28, 2017

National origin issues are all over the news. Can the United States treat individuals differently based on their country of origin? How will a person’s country of origin affect her ability to obtain a visa to work in the United States? What do you do when U.S. Immigration and Customs Enforcement (ICE) agents or other law enforcement officials show up at your place of employment to arrest a noncitizen worker? Are your I-9 practices consistent with federal law?

We can expect issues involving national origin to remain a daily subject of news coverage and to have an impact on many areas of our lives, including employment. Below is guidance on some of the more common national origin discrimination issues that may confront employers.

What is national origin discrimination?

Discrimination is the different treatment of a person based on a protected characteristic such as gender, disability, or national origin. Discrimination is most often an intentional act, such as a failure to hire someone based on his race. But discrimination can also be unintentional if an employer’s policy, rule, or job requirement has a disproportionate impact on a protected class of individuals. For example, women and people of certain nationalities would be disproportionately affected by a hiring criterion requiring employees to be at least six feet tall. National origin discrimination claims may arise from disparate treatment (intentional discrimination) or disparate impact (unintentional discrimination).

National origin discrimination occurs when an individual is treated differently because of where he was born or because of his ancestry, culture, linguistic characteristics, or accent. For example, discharging or harassing an employee because he is Arab or paying an employee less because he is Mexican would constitute national origin discrimination.

National origin discrimination also includes discrimination against a person who associates with someone of a particular ethnicity or an organization aligned with members of a certain ethnicity. For example, discharging an employee because his spouse is from Iran would constitute national origin discrimination. Taking an adverse action against an employee or a job applicant because you believe she has a particular national origin, even if she doesn’t, is also national original discrimination. Additionally, discrimination or harassment based on physical or cultural traits or clothing may constitute national origin discrimination.

Who is protected under federal and state law?

Title VII of the Civil Rights Act of 1964 is the federal law that specifically prohibits employment discrimination based on national origin. Title VII forbids employers with 15 or more employees from discriminating against employees or job applicants on the basis of their national origin in all types of employment actions, from the recruitment process through the termination of their employment.

The other primary federal law applicable to national origin discrimination is the Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA). In addition to prohibiting discrimination based on immigration or citizenship status, INA/IRCA prohibits “document abuse” discrimination—i.e., requiring a job applicant to provide more or different documents than allowed by law as part of the I-9 process.

Wisconsin’s Fair Employment Act (WFEA) also prohibits discrimination based on national origin and ancestry. The WFEA has no minimum number of employees for coverage, meaning it’s applicable to all Wisconsin employers. U.S. citizens, permanent residents, lawful temporary residents, and refugees are protected under federal and state law, and the laws apply to current employees as well as job applicants.

Moreover, national origin protections overlap with other protections. For example, an employee whose country of origin is Iraq may also be Muslim. Discrimination against the employee because of her choice of dress, which may be required by her Islamic faith, may be prohibited religious discrimination as well as national origin discrimination. Similarly, discrimination against a person based on the color of her skin may constitute unlawful discrimination because of color as well as national origin.

National origin inquiries and preferences

Generally, there is no need to request that an individual state her national origin or ancestry as part of the employment application process or during an interview. However, if you do seek that information because it’s requested as part of a government contract or your affirmative action requirements, or simply for diversity purposes, you should make clear to the employee or job applicant that disclosure is voluntary. Additionally, it’s best to retain the information in a separate file to which access is limited, similar to how you maintain employees’ medical records.

Generally, a person’s national origin cannot be considered as a factor in a hiring or employment decision. However, there may be limited circumstances in which national origin may be a bona fide occupational qualification (BFOQ). For example, if you are a movie company filming a movie about migrant farmworkers, you may need to hire Hispanic individuals. Agencies and courts will find national origin to be a BFOQ in only the rarest of circumstances.

Also, you cannot make hiring or job assignment decisions based on national origin because of client or customer preference. For example, you cannot assign an employee who appears Middle Eastern to a job in which he has no customer contact because of concerns that a customer may not want to interact with him because he’s from the Middle East.

English testing/English-only rules and accents

Employers are not prohibited from asking job applicants to take tests gauging their written or spoken English proficiency. If you use such a test, you must require all job applicants to take it. Before asking applicants to take the test, consider the job they’re applying for, including the qualifications that are actually necessary to do the job. You don’t want to deny employment to a qualified applicant based on a poor test score if her English proficiency wouldn’t affect her ability to perform the job.

Discrimination based on a person’s accent also may be unlawful. Your focus should be on whether the individual’s accent will actually affect his job performance. More often than not, performance is not negatively affected by a person’s accent. However, it’s conceivable that a person with a strong accent whose job requires him to deal with irate customers in person or on the telephone may have difficulty performing his job adequately. The determination must be made on a case-by-case basis.

English-only workplace rules are generally disfavored. Rules that require employees to speak only English at all times, including during breaks, are generally not enforceable. If you have an English-only rule that’s critical for business reasons, you must state, preferably in writing, when employees are required to speak only English and the consequences for failing to abide by the policy.

National origin harassment 

Harassment based on national origin, like other forms of workplace harassment (e.g., sexual or racial harassment), is unlawful. To be actionable, the harassing conduct must be based on the individual’s national origin, unwelcome, and severe or pervasive enough to create a hostile work environment. Also, there must be a basis for employer liability.

As with other forms of workplace harassment, it’s critical to make an effort to prevent national origin harassment, and when you’re informed about possible harassment, promptly investigate all complaints, and take appropriate remedial action based on the results of your investigation.

EEOC guidance

Late last year, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on national origin discrimination (for more on that document, see “EEOC issues new guidelines on national origin discrimination” on pg. 2 of our January 2017 issue). The EEOC enforces Title VII, so much of the guidance relates directly to Title VII issues. A good Q&A publication from the EEOC can be found at www.eeoc.gov/ laws/guidance/national-origin-qa.cfm. Additionally, the EEOC’s lengthier enforcement guidance document can be found at www.eeoc.gov/laws/guidance/national-origin-guidance.cfm.

The enforcement guidance includes “promising practices,” which are suggestions from the EEOC about practices employers should consider adopting to prevent or remedy national origin discrimination in the workplace. Although many of the suggested promising practices go beyond what is required by law, they do provide guidance on what the EEOC considers best practices at this time.

Bottom line

The EEOC continues to receive a substantial number of national origin discrimination charges, and there’s no reason to believe there will be a decrease in this type of discrimination claim anytime soon. National origin often overlaps with other protected classes like religion and color. Title VII protections also overlap with protections afforded by the federal immigration laws.

Finally, remember that the EEOC and many courts take the position that national origin discrimination includes claims based on a perception that a person has a particular national origin, and mistreatment based on an employee’s association with a person of a particular national origin, regardless of the employee’s own national origin, constitutes national origin discrimination.

This article, slightly modified to note recent updates, was featured in the April 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "National Origin, Discrimination, and Employers—Oh My!," contact Michael J. Modl at mmodl@axley.com or 608.283.6702.