National Origin Discrimination: What You Need to Know… And Questions You Might Be Afraid to Ask

Regardless of which side of the aisle you fall on, we can all agree that national origin has been in the news quite a bit this winter. In November, 2016, the EEOC actually issued some updated guidance for employers on the ins and outs of national origin discrimination. You can find it here.

Here’s what you need to know so your company doesn’t end up in the news:

What IS national origin… and who does the law protect?

Under the law (Title VII), national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or shares the physical, cultural, or language characteristics of a national origin (ethnic) group. National origin “harassment” is also prohibited. You can read more about that here (EEOC Report of Harassment in the Workplace).

“Place of origin” can be a country (like Mexico), a former country (like Yugoslavia), or a place that is closely associated with an ethnic group but is not a country (like “the middle east”). In contrast, “a national origin group” is a group of people who share a common language, culture, ancestry, and/or other social characteristics (like Hispanics/Latinos or Arabs). It’s important to note that national origin is different from U.S. citizenship or immigration status.

What would be considered national origin discrimination?

National origin discrimination includes treating someone less favorably at work because of their national origin OR because he or she associates with (for example, marries) someone of a particular national origin, OR because of incorrect information or conclusions about a person’s national origin. For example, treating an employee less favorably because you think he is Hispanic/Latino would be national origin discrimination, even if he is not in fact Hispanic/Latino.

Now, on to some more “sticky” questions:

What if my customers, clients, or other employees are uncomfortable with one of my employees because of their national origin? 

Discrimination based on national origin is prohibited even if employment decisions are made due to the discriminatory preferences of clients, customers, or employees. Employers cannot justify employment discrimination based on the preferences of others. The law prohibits an employer from assigning or refusing to assign employees to certain jobs, facilities, locations, tasks, or geographic areas; denying promotions; physically isolating employees; or otherwise segregating workers into jobs based on their national origin. Title VII also prohibits assigning individuals to non-customer contact jobs or to back room jobs based on their national origin.

Can I make an employment decision based on an applicant or employee’s language?

It depends. Employers may have legitimate business reasons for making language-based employment decisions. An employer may not base an employment decision on an accent unless the ability to communicate in spoken English is required to perform job duties effectively and the individual’s accent materially interferes with that job performance.

A language fluency requirement can be legal if fluency is required for the effective performance of the job position.

What if I have a language restriction policy saying my employees can only speak English in the workplace? 

A language-restrictive policy (like a policy staying you can only speak English in the work place at all times) may violate Title VII if it is applied at all times in the workplace (like, even during lunch). However, such a policy may be lawful in limited circumstances when needed to promote safe and efficient job performance or safe and efficient business operations. Of course, it should not be adopted for discriminatory reasons or applied in a discriminatory way.

Am I required to accommodate national origin traditions or practices at work?

Not technically. Title VII does not require accommodation of national origin traditions or practices. An employer would, however, need to grant a request for religious accommodation if doing so would not impose an undue hardship on the employer. If a request for a religious accommodation arises, you should tread lightly and refer here (EEOC Compliance on Religion Discrimination) and here (Religious Garb and Grooming in the Workplace: Rights and Responsibilities).

What about foreign nationals and immigrants?

Foreign nationals employed in the United States are protected by Title VII. Title VII also protects job applicants and employees without regard to their immigration status.

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Bryan Dench, Amy Dieterich, Jordan Payne Hay, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters.  You can contact us at 207.784.3200.  SkeltonTaintor & Abbott is a full service law firm providing legal services to individuals , companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.