Issue Briefs

Following is the section of a new EEOC publication examining the laws and that agency’s key decisions on the topic of national origin discrimination.


Title VII of the Civil Rights Act of 1964 protects employees and applicants from employment discrimination on the basis of national origin.[1] National origin discrimination involves, among other things, treating employees or applicants for employment unfavorably because they are from a particular country or part of the world.[2] The American workforce is increasingly ethnically diverse, and immigrant workers are present in every occupation in the United States.[3] No matter what country an employee or applicant is from, or what ethnic group they belong to, the individual is entitled to the same employment opportunities as anyone else.[4] This article attempts to assist agencies in preventing national origin discrimination by discussing the law, and recent Commission decisions.

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Background

It is unlawful to discriminate against any employee or applicant because of the individual’s national origin. The Commission defines national origin discrimination broadly as including unfavorable treatment because of an employee’s or applicant’s place of origin, or the place of origin of their ancestors.[5] The place of origin may be a country, a former country, or a geographic region, including a region that was never a country but is closely associated with a particular national origin group.[6] National origin discrimination can also include discrimination because of an individual’s ethnicity or accent, or because the individual appears to be of a certain ethnic background even if they are not.[7] An ethnic group is a group of people sharing a common language, culture, ancestry, race, or other social characteristics.[8]

Claims of national origin discrimination can involve unfavorable treatment that raises national origin considerations, such as an individual’s marriage to or association with persons of a national origin group.[9] These claims can also include an individual’s membership in, or association with an organization identified with a particular national origin group, and attendance or participation in schools, or places of worship generally used by persons of a national origin group.[10] Employment discrimination against an individual because he/she has physical, linguistic, and/or cultural characteristics closely associated with a national origin group, for example an accent or particular style of dress, can also constitute national origin discrimination.[11] National origin discrimination includes discrimination by a member of one national origin group against a member of the same group.[12]

The Commission has noted that national origin discrimination often overlaps with race, color, or religious discrimination.[13] This is because a national origin group may be associated with or perceived to be associated with a particular race or religion.[14] For example, complaints filed by Asian Americans may involve allegations of discrimination based on both race and national origin/ancestry.[15] Discrimination against people with origins in the Middle East may be motivated by race, national origin, or the perception that the individuals follow particular religious practices.[16]

Title VII forbids discrimination with regard to any aspect of employment, including hiring, firing, pay, job assignments, promotions, and any other term or condition of employment.[17] Title VII also makes it illegal for an employer to use an employment policy or practice that applies to everyone, regardless of national origin, if it has a negative impact on people of a certain national origin and is not job-related or necessary to the agency’s operations.[18] Retaliation against someone who complains about a discriminatory practice, files a complaint of discrimination, or assists in the EEO complaint process also violates Title VII.

Discrete Employment Decisions

The Title VII principles of disparate treatment discrimination equally apply to national origin discrimination.[19] As noted, national origin discrimination is prohibited in all aspects of employment, including recruitment, hiring, promotions, and terminations. For example, the Commission has noted that an employer who declined to hire a Muslim woman wearing a hijab, an article of clothing often worn by women from various Middle Eastern countries, but who hired a women of different ethnicity with similar qualifications one week later would violate Title VII if the employer chose not to hire the Muslim woman because of concerns about the reactions of customers to the hijab.[20] This would also be true if the employer declined to hire a woman of South Asian ancestry who wore a sari, a garment typically worn by women in India, under similar circumstances. Refusing to hire someone because customers or coworkers may be “uncomfortable” with the person’s national origin violates Title VII’s prohibitions against discrimination.[21]

In Tyrone D. v. Department of Defense,[22] the Commission affirmed the AJ’s finding that the Agency, among other things, subjected Complainant to national origin (Hispanic) discrimination when it did not promote him. The AJ found the testimony of two managers that Complainant’s position description should reflect the duties of his position rather than the duties he actually performed, and that Complainant was “non-communicative and uncooperative” was not credible and was contradictory. The Commission noted that one of the officials exhibited insensitive attitudes toward Hispanics. Specifically, the official suggested, in an email, that the U.S. should use alligators and a moat to deter illegal immigration, and included a quote comparing illegal immigrants to drug dealers. Further, substantial evidence supported the AJ’s finding that an Agency supervisor failed to follow Agency protocol to conform Complainant’s position description to his actual duties and responsibilities. Neither management official rebutted Complainant’s description of his actual duties or explained why those duties did not support a promotion.

Harassment

It is unlawful under Title VII to harass an individual because of his/her national origin. Harassment can include offensive or derogatory remarks about a person’s national origin, accent or ethnicity, or other offensive conduct directed towards an individual because of birthplace, ethnicity, culture, language, or accent, when the remarks or conduct are so frequent or severe that it creates a hostile work environment or results in an adverse employment decision.[23] An agency has an affirmative duty to maintain a work environment free of harassment on the basis of national origin.[24] As an example, the Commission has cited an Arab American employee who complained to his supervisor about a coworker who regularly referred to him as “the local terrorist,” and “ISIS.”[25] The Commission noted that managers and supervisors who learn about objectionable workplace conduct based on national origin are responsible for promptly taking steps to correct the conduct.[26] Clear and effective policies prohibiting ethnic slurs, or other related conduct are important to prevent harassment.[27]

In Bryan T. v. Department of Homeland Security,[28] the Commission found that Complainant was subjected to harassment because of national origin, among other things, and discriminated against when he was not selected for two positions. Specifically, Complainant’s supervisor made derogatory comments about Complainant’s national origin during public briefings, including referring to Complainant as “the resident Irishman,” and “the old Irish man,” and stating “maybe it was the smaller of the Irishmen” when talking about Complainant and a coworker. Several witnesses corroborated Complainant’s claims of harassment, and indicated that the supervisor frequently made derogatory statements about Complainant’s national origin, including referring to Complainant as “a token Irishman.” Complainant repeatedly contacted an EEO Counselor to complain about the harassment, and complained to an Agency manager, but the preponderance of the evidence revealed that instead of ceasing, the harassment increased in frequency. Therefore, the Commission determined that the Agency was liable for the supervisor’s conduct because it failed to exercise reasonable care to prevent and correct the harassing behavior. The Commission further found that the Agency failed to articulate a legitimate, nondiscriminatory reason for not selecting Complainant for two positions. The Agency merely provided vague, subjective reasons for the non-selections which, when considered in light of the pervasive and offensive name calling which existed at the facility, were a pretext for discrimination.

“English-Only Rules” and Issues of Language

Policies that either explicitly or implicitly require employees to speak only English in the workplace should be carefully scrutinized to ensure they do not violate Title VII. When applied at all times, an “English-only rule” is a burdensome term and condition of employment.[29] An individual’s primary language is often an essential national origin characteristic, and prohibiting employees from speaking their primary language at all times in the workplace disadvantages an individual’s employment opportunities on the basis of national origin.[30]

An “English-only rule” is only allowed if it is necessary to ensure the safe or efficient operation of the agency’s work, and is put in place for nondiscriminatory reasons.[31] For instance, an agency can only require an employee to speak fluent English if fluency is necessary to effectively perform the job.[32] An agency also may not base an employment decision on an employee’s accent, unless the accent seriously interferes with the employee’s job performance.

In Minda W. v. Department of the Navy,[33] the Commission found that the Agency discriminated against Complainant on the basis of national origin when it implemented an English-only rule that was not justified by business necessity. The Agency issued Complainant a Letter of Expectations which directed her and her subordinates to always “use the English language when discussing work topics in the work environment.” The Commission found the instruction, on its face, constituted an English-only rule. There was no evidence in the record that requiring employees to speak only English when discussing work topics was necessary for the safe or efficient operation of the Agency. While a supervisor stated that an unnamed employee complained about the use of the Tagalong language in the workplace because she felt excluded, there was no evidence of a widespread problem involving language-related interpersonal conflicts or derogatory or intimidating conduct. In addition, the Agency could have used a nondiscriminatory alternative, such as individually counseling employees about appropriate workplace conduct to address the problem.

In Genny L. v. Department of Defense,[34] the Commission found that the Agency discriminated against Complainant on the basis of national origin when, after a contractor complained of a “language barrier,” the Agency required Complainant to communicate with the contractor through a supervisor or senior employee. Complainant’s supervisor acknowledged that she and a manager decided to impose the requirement because the contractor complained that she was unable to understand Complainant’s data requests and that there was a “language barrier.” Thus, the supervisor’s statements established that the Agency took the actions complained of because of Complainant’s linguistic characteristics. The Commission found that this constituted direct evidence that Complainant’s national origin motivated the Agency’s actions. The Commission found no evidence that the Agency investigated the contractor’s complaints, and the supervisor specifically noted that the contractor’s claim “may or may not have been true.” Further, the evidence did not establish that a “language barrier” existed, and the Agency did not show that it would have taken the same action absent consideration of the discriminatory factor.

[1] 42 U.S.C. 2000e et seq.

[2] See https://www.eeoc.gov/national-origin-discrimination.

[3] See EEOC Enforcement Guidance on National Origin Discrimination, No. 915.005 (Nov. 18, 2016) available on the EEOC website at https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination.

[4] See Facts About National Origin Discrimination available on the EEOC website at https://www.eeoc.gov/publications/facts-about-national-origin-discrimination.

[5] 29 C.F.R. § 1606.1.

[6] See EEOC Enforcement Guidance on National Origin Discrimination, No. 915.005 (Nov. 18, 2016) available on the EEOC website at https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination.

[7] See https://www.eeoc.gov/national-origin-discrimination.

[8] EEOC Enforcement Guidance on National Origin Discrimination, No. 915.005 (Nov. 18, 2016) available on the EEOC website at https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination.

[9] 29 C.F.R. § 1606.1.

[10] Id.

[11] EEOC Enforcement Guidance on National Origin Discrimination, No. 915.005 (Nov. 18, 2016) available on the EEOC website at https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination.

[12] Id., citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (“…in the related context of racial discrimination in the workplace, we have rejected any conclusive presumption that an employer will not discriminate against members of his own race.”).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] 29 C.F.R. § 1606.1.

[18] Id.

[19] 29 C.F.R. § 1606.2.

[20] See Questions and Answers for Employees: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern (noting that this incident could also be considered discrimination on the basis of religion) available on the EEOC website at https://www.eeoc.gov/laws/guidance/questions-and-answers-employees-responsibilities-concerning-employment-individuals; and EEOC Enforcement Guidance on National Origin Discrimination, No. 915.005 (Nov. 18, 2016) available on the EEOC website at https://www.eeoc.gov/laws/guidance/eeoc-enforcement-guidance-national-origin-discrimination.

[21] Id.

[22] EEOC Appeal No. 0720160005 (June 16, 2016).

[23] See https://www.eeoc.gov/national-origin-discrimination.

[24] 29 C.F.R. § 1606.8.

[25] See Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern (noting that this incident could also be considered discrimination on the basis of religion) available on the EEOC website at https://www.eeoc.gov/laws/guidance/questions-and-answers-employers-responsibilities-concerning-employment-individuals.

[26] Id.

[27] Id.

[28] EEOC Appeal No. 0120122110 (March 18, 2016).

[29] 29 C.F.R. § 1606.7.

[30] Id.

[31] See https://www.eeoc.gov/national-origin-discrimination.

[32] Id.

[33] EEOC Appeal No. 0120162040 (Apr. 24, 2018).

[34] EEOC Appeal No. 0120122795 (February 23, 2016).