Under Title VII of the Civil Rights Act of 1964, it is illegal for employers to discriminate against employees on the basis of their national origin. This generally means that employers may not fire, demote, or subject an employee to any other form of adverse employment action because of that employee's home country or because of the home country of the employee's ancestors.
What is National Origin?
The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, has stated that national origin does not only mean "country of origin." Pursuant to EEOC guidelines, national origin discrimination can include discrimination based upon "place or origin," whether or not that "place" is a present-day country. For example, a federal court found that a Cajun employee was entitled to pursue a Title VII action for national origin discrimination. The employee argued that he was discriminated against because his ancestors came from the French colony of Acadia, which was not and had never been its own country.
Courts have held, however, that "place of origin" does not include region of the United States. For example, a Massachusetts-born employee working in Texas could not argue that he was subjected to national origin discrimination based upon his Eastern heritage. Furthermore, national origin does not include discrimination on the basis of race, religion, or color. Those characteristics are separately protected by Title VII. National Origin discrimination also does not cover discrimination against an employee because he or she is an alien. In such cases, the discrimination is not based upon the employee's national origin, but upon his or her lack of citizenship.
In some cases, for example in the case of Native Americans, the lines are blurred between race and national origin. At least one federal circuit court of appeals has held that national origin discrimination does include discrimination against Native Americans. Other courts have allowed Native Americans to file Title VII discrimination actions on the basis of their race.
Discrimination Based upon the Characteristics of a National Origin Group
The EEOC has declared that Title VII also prevents discrimination because an individual has the physical, cultural or linguistic characteristics of a national origin group. It is not clear whether an employee who possesses characteristics of those who are from a particular country could claim national origin discrimination based upon an employer's misperception that the employee was from that country.
Examples of National Origin Discrimination
Courts have found the following types of discrimination to constitute national origin discrimination:
- Discrimination based upon a foreign accent,
- Height requirement that excluded large numbers of Mexican Americans, and
- Requiring employees to speak English only at all times.
Bona Fide Occupational Qualification
Although the exception is almost never invoked, Title VII provides that an employer may discriminate against an employee on the basis of national origin where national origin is a "bona fide occupational qualification" reasonably necessary to the normal operation of the employer's business.
Copyright 2009 LexisNexis, a division of Reed Elsevier Inc.
