A New Jersey teacher’s lawsuit for alleged national origin discrimination took an unusual turn in a recent court hearing, according to media reports. The plaintiff alleges that she was subjected to disparate treatment and retaliation because of her Palestinian heritage. Hashem v. Hunterdon Cty., et al., No. 3:15-cv-08585, 2d am. complaint (D.N.J., Oct. 19, 2016). During a hearing in early 2017, the defendants reportedly claimed that the case lacks merit because Palestine is not a “nation,” and therefore the plaintiff cannot claim “Palestinian” or “Palestinian-American” as a national origin. While this does not appear to be a prominent element of the defendants’ legal arguments, it captured media attention, and it raises important questions about how U.S. and New Jersey employment laws define “national origin.”
Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (NJLAD) both expressly identify national origin as a protected category for discrimination claims. See 42 U.S.C. § 2000e-2(a), N.J. Rev. Stat. § 10:5-12(a). The term “nation” can have multiple meanings, depending on the context. It can refer to a sovereign country, such as the United States, Canada, or Mexico. It can also refer to a group of people with a shared heritage, language, or culture who do not have their own distinct country, like the Indian tribes of the United States, the First Nations of Canada, and trans-national regions like Kurdistan. Palestine, with its limited international recognition and “non-member observer” status at the United Nations, would seem to fit the second definition.
Since “countries” can come into being and cease to exist, multiple courts have held that “national origin” is not limited to countries in existence at the time of a discrimination claim. In Pejic v. Hughes Helicopters, a court held that Serbians were a protected class at a time when Serbia was part of Yugoslavia. 840 F. 2d 667, 673 (9th Cir. 1988). Serbia had been independent in the early 20th century and would become independent again in the 1990s. The Pejic court cited a district court decision finding that Louisiana Acadian—a/k/a Cajun—is a national origin under Title VII. Roach v. Dresser Ind. Valve & Instrument Division, 494 F. Supp. 215, 218 (W.D. La. 1980).