EEOC Issues New Guidelines on National Origin Discrimination in Employment

Ellis IslandTitle VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of five distinct factors:  sex, religion, race, color, and national origin. The “national origin” category can apply to individuals who are not originally from the United States and also to people who are perceived to have a particular national origin. Title VII enforcement is the responsibility of the Equal Employment Opportunity Commission (EEOC). In late 2016, the EEOC issued new guidelines for enforcement of Title VII’s national origin discrimination provisions. These guidelines help the agency identify its priorities and provide examples of situations that constitute unlawful employment practices.

National origin discrimination under Title VII should not be confused with discrimination on the basis of citizenship or immigration status, also known as “alienage” discrimination. The Immigration Reform and Control Act (IRCA) of 1986 states that employers cannot discriminate against workers because of alienage, provided that the employees in question have work authorization issued by the federal government. The U.S. Supreme Court has held that discrimination based solely on alienage is not actionable under Title VII. Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86 (1973); see also Cortezano v. Salin Bank & Trust Co., 680 F.3d 936 (7th Cir. 2012). It is possible for a case to involve violations of both statutes, but the responsibility for enforcing these laws is placed in different agencies. An office within the Department of Justice enforces these provisions of IRCA.

The EEOC’s definition of national origin discrimination includes adverse employment decisions based on a person’s place of origin, or that of the person’s ancestors, or because the person has “physical, cultural or linguistic characteristics of a national origin group.” 29 C.F.R. § 1606.1. This applies to currently existing countries, such as Canada, Mexico, or China, or countries that formerly existed, like Yugoslavia. It can also apply to regions that have a distinct identity but are not “countries” in the traditional sense—the EEOC gives the examples of Kurdistan and Acadia.

With regard to “physical, cultural, or linguistic characteristics,” the EEOC identifies various ways that this can occur. It can involve discriminating against someone because the employer or other employees believe the person physically resembles someone of a particular nationality or ethnicity. It can also involve accents, such as discrimination against someone who speaks English with a foreign accent, when their speech has no direct bearing on their job. In one case, an Indian national alleged national origin discrimination because his supervisor and co-workers, believing him to be Arab, routinely harassed him in the workplace. He alleged that they referred to him as “Taliban” and engaged in other acts of harassment. An appellate court ruled in favor of his Title VII claim. EEOC v. WC&M Enters., 496 F.3d 393 (5th Cir. 2007).

In addition to a person’s own actual or perceived national origin, this type of discrimination may include discrimination because of marriage to or association with someone of a particular national origin, or because of membership in an organization, or attendance at a school or religious institution, that is associated with a particular national origin. Discrimination against someone because their name or their spouse’s name is associated with a certain national origin may also violate Title VII.

If you need to speak to an attorney about an race discrimination matter in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.

More Blog Posts:

Employees May Be Able to Assert Title VII Claims Regardless of Immigration Status, According to Appellate Court Ruling, The New Jersey Employment Law Firm Blog, June 3, 2016

Employment Discrimination Based on Citizenship Status, National Origin Prohibited by Federal Immigration Law, The New Jersey Employment Law Firm Blog, March 14, 2016

New Jersey Federal Court Allows Race, National Origin Discrimination Lawsuit to Proceed, The New Jersey Employment Law Firm Blog, January 27, 2015

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