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Excerpted From: Office of Legal Counsel (Jenny R. Yang), EEOC Enforcement Guidance on National Origin Discrimination, Title VII, 29 CFR Part 1601, 29 CFR Part 1606 (2016) (179 Footnotes) (Full Document)
Generally, national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group. Title VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin. National origin discrimination includes discrimination by a member of one national origin group against a member of the same group.
A. Employment Discrimination Based on Place of Origin
National origin discrimination includes discrimination “because of an individual's, or his or her ancestor's, place of origin.” The place of origin may be a country (e.g., Mexico, China, Syria) or a former country (e.g., Yugoslavia). The place of origin may be the United States. Finally, it may be a geographic region, including a region that never was a country but nevertheless is closely associated with a particular national origin group, for example, Kurdistan or Acadia.
B. Employment Discrimination Based on National Origin Group or Ethnicity
Title VII also prohibits employment discrimination against individuals because of their national origin group. A “national origin group,” or an “ethnic group,” is a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics. Hispanics, Arabs, and Roma are ethnic or national origin groups.
Employment discrimination against members of a national origin group includes discrimination based on:
• Ethnicity: Employment discrimination because of a person's ethnicity as defined above, for example, discrimination against someone because he is Hispanic. National origin discrimination also includes discrimination against a person because she does not belong to a particular ethnic group, such as less favorable treatment of employees who are not Hispanic.
• Physical, linguistic, or cultural traits: Employment discrimination against an individual because she has physical, linguistic, and/or cultural characteristics closely associated with a national origin group. For example, subjecting an individual to an adverse employment action because of her African-sounding accent or traditional African style of dress could constitute discrimination based on African origin.
Employment discrimination based on place of origin or national origin (ethnic) group includes discrimination involving:
• Perception: Employment discrimination based on the belief that an individual (or her ancestors) is from one or more particular countries, or belongs to one or more particular national origin groups. For example, Title VII prohibits employment discrimination based on the perception that someone is from the Middle East or is of Arab ethnicity, regardless of how she identifies herself or whether she is, in fact, from one or more Middle Eastern countries or ethnically Arab.
• Association: Employment discrimination against an individual because of his association with someone of a particular national origin. For example, it is unlawful to discriminate against a person because he is married to or has a child with someone of a different national origin or ethnicity.
• Citizenship status: Employment discrimination based on citizenship status if it has the purpose or effect of discriminating based on national origin.
Finally, the Commission's position is that employment discrimination because an individual is Native American or a member of a particular tribe also is based on national origin.
C. National Origin Discrimination That Overlaps or Intersects with Other Title VII Protected Bases
1. Multiple Protected Bases
National origin discrimination often overlaps with race, color, or religious discrimination because a national origin group may be associated or perceived to be associated with a particular religion or race. For example, charges filed by Asian Americans may involve allegations of discrimination motivated by both race and ancestry (national origin). Similarly, discrimination against people with origins in the Middle East may be motivated by race, national origin, or even the perception that they follow particular religious practices. As a result, the same set of facts may state claims alleging multiple bases of discrimination.
Example 1 National Origin, Race, and Religious Discrimination
Thomas, who is Egyptian, alleges that he was harassed by his coworkers about his Arab ethnicity. He also has been subjected to derogatory comments about Islam. Thomas' charge should assert national origin, race, and religious discrimination.
2. Intersectional Discrimination
Title VII also prohibits “intersectional” discrimination, which occurs when someone is discriminated against because of the combination of two or more protected bases (e.g. national origin and race). “Some characteristics, such as race, color, and national origin, often fuse inextricably … Title VII prohibits employment discrimination based on any of the named characteristics, whether individually or in combination.” Because intersectional discrimination targets a specific subgroup of individuals, Title VII prohibits, for example, discrimination against Asian women even if the employer has not also discriminated against Asian men or non-Asian women.
Example 2 Race, National Origin, and Sex Discrimination
Ava, who is a Mexican American woman, was denied a promotion to a team leader position at the company where she successfully worked for 10 years. Ava is qualified for the team leader position but she was rejected three times for the promotion, without explanation. Ava alleges that she was denied the promotions because she is a Mexican American woman. She claims that two non-Mexican women and a Mexican man were selected for the three positions and that the company has never promoted a Mexican American woman to team leader in its 20 year history, even though Mexican American women have constituted about 20% of the line staff from whom team leaders are typically drawn. Ava's charge of discrimination should assert race, national origin, and sex discrimination.
Employment discrimination motivated by a stereotype about two or more protected traits would constitute intersectional discrimination. Thus, a stereotype about Hispanic women would apply only to Hispanic women; it would not apply to either Hispanic men or non-Hispanic women.
D. Employment Discrimination and Human Trafficking
When force, fraud, or coercion is used to compel labor or exploit workers, traffickers and employers may be violating not only criminal laws, but also Title VII. In particular, Title VII may apply in trafficking cases if an employer's conduct is directed at an individual and/or group of individuals based on a protected category, such as national origin.
Even if employees are legally brought into the United States, discrimination on the basis of national origin may occur through the use of force, fraud, or coercion. In trafficking cases, it is not unusual for employers to subject trafficked workers to harassment, job segregation, unequal pay, or unreasonable paycheck deductions, all of which are discriminatory if motivated by Title VII-protected status. Trafficking cases may involve multiple or intersecting bases of discrimination, such as national origin and sex. They often also involve retaliation for protected activity.
Example 3 Human Trafficking and National Origin Discrimination
An oil industry parts manufacturer (“Manufacturer”) recruits East Indian workers to work in its U.S. factory as high-tech welders, fitters, electricians, and engineers. Manufacturer promises the East Indian workers that they will be well-compensated and that they will work under conditions similar to those of American workers. However, once the East Indian workers arrive in the U.S., Manufacturer confiscates their passports, visas, and I-9 Forms and restricts their movement, communications, privacy, worship, and access to health care, while placing no similar restrictions on Manufacturer's non-Indian workers. The East Indian workers are subjected to racial and ethnic harassment, paid less than minimum wage, placed in substandard housing, and forced to do “undesirable” work unrelated to the skills for which they were hired, including janitorial work. Manufacturer does not subject Caucasian, U.S.-born workers to similar mistreatment or working conditions. Based on these facts, the EEOC finds reasonable cause to believe that the East Indian workers were subjected to race and national origin discrimination.
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