How to prevent
national origin discrimination?
By Claudia Garcez, Consultora de RH
is a nation of immigrants. The cultural diversity of America is what
makes this country so unique. Recognized worldwide as being the land
of opportunities, the United States continues to attract many people
from all over the globe. Immigrants come to the United States searching
for the American dream. People believe that America is the place that
allows them freedom and opportunity for all. In order to prevent discrimination
against legal immigrants, the government of the United States created
some specific laws. The purpose of this paper is to define laws protecting
against national origin discrimination, explain actual court cases,
and educate Human Resources managers on how to avoid national origin
Immigration Reform and Control Act anti-discrimination provision
prohibits employers from knowingly hiring undocumented workers and requires
employers to verify their employees' identity and work eligibility as
specified on the I-9 form. It also prohibits job discrimination
based on immigration status. This anti-discrimination provision
is intended to ensure that all employees and job applicants are treated
equally, whether they are U.S. citizens or not. In order to enforce
the IRCA, The Office of Special Counsel for Immigration-Related Unfair
Employment Practices (OSC) investigates and prosecutes employers
charged with national origin and citizenship status
discrimination with respect to hiring, firing and recruitment or
referral for a fee, unfair documentary practices concerning the hiring
process (document abuse), and retaliation. The OSC only applies
to employers with between 4 and 14 employees (IRCA).
employers that discriminate based on National origin and citizenship
status can be severely penalized. For a first time employer discrimination
offense against each victim, the penalty ranges between $275 and $2,200.
For a second time offense, the penalties vary between $2,200 to 5,500.
The numbers can go as high as $3,300 to $11,000 for each third time
offense. Victims of unlawful discrimination may receive back pay (for
lost wages), instatement or reinstatement or other appropriate recourse.
Victims have within 180 days from the alleged discrimination to file
a discrimination charge (IRCA).
law protecting against National origin discrimination
is Executive Order 11246. The Executive Order prohibits federal
contractors and federally-assisted construction contractors and subcontractors
that do over $10,000 in Government business in one year from discriminating
in employment decisions on the basis of race, color, religion, sex,
or national origin. It requires affirmative action to ensure equal
employment opportunity for all. The Department of Labor's Office of
Federal Contract Compliance Programs (OFCCP) is in charge of enforcing
Executive Order 11246 and is part of the U.S. Department of Labor's
Employment Standards Administration. As law enforcement, OFCCP ensures
that private employers doing business with the federal government comply
with laws and regulations requiring non-discrimination. Victims of discrimination
can file a charge within 180 days from the date of the alleged discrimination,
unless the time for filling is extended for good cause presented (EO
the most encompassing antidiscrimination law and the law that is used
by most claimants is Title VII of the Civil Rights Act of 1964.
Title VII provides that it is unlawful for an employer:
(1) to fail
or refuse to hire or to discharge
or otherwise to discriminate
individual with respect to his
terms, conditions, or privileges
because of such individual's
religion, sex, or national
(2) to limit,
segregate, or classify his
or applicants for employment in any
would deprive or tend to deprive any
of employment opportunities or
adversely affect his status as an
because of such individual's race,
sex, or national origin.
VII only applies to employers with at least 15 employees. As a way to
attempt to prevent discrimination, the Equal Employment Opportunity
Commission (EEOC) is in charge of the administration, interpretation
and enforcement of Title VII (EEOC). Due to the many laws and areas
which discrimination can be based on, this paper will limit its focus
on national origin under Title VII
EEOC defines national origin
discrimination as treating someone less favorably because he or she
comes from a particular place, because of his or her ethnicity or accent,
or because it is believed that he or she has a particular ethnic background.
It also means treating someone less favorably at work because of marriage
or other association with someone of a particular nationality
origin discrimination under Title VII involves many aspects of employment
including hiring, promoting, harassing, discharging and general employment
policies. The judicial system is responsible for interpreting employers
actions and deciding whether those actions violate Title VII. An example
of how the employers' actions in the hiring process can be considered
discriminatory is illustrated in Raad v. Fairbanks North Star Borough
School District, 323 F. 3d. 1185 (2002). In Raad, a part-
time teacher of Lebanese descent, sued the school district for failing
to hire her for a full-time position because of her accent. Nada Raad
was born and raised in Beirut, Lebanon. She obtained her undergraduate
and graduate degrees from the University of Illinois Urbana-Champaign
with excellent and outstanding faculty recommendations. Raad then
obtained her certification to teach in Alaska public schools.
applied for full-time position for three consecutive years beginning
in 1991. In her first interview, Raad was awarded the highest possible
rating by the team of principals. However, there was a special note
in her evaluation: "Raad's accent and soft spokenness may be a detractor
to some instructional effectiveness." The school discrict decided
not to hire Raad mainly because of her accent even though there was
no evidence that her accent ever interfered with her performance to
teach math and science. On the contrary, Raad consistently received
compliments about her classroom performance such as "an excellent
rapport with her students."
the 1991-92 school year, Raad received numerous requests from full-time
District teachers to serve as a full-time substitute teacher in
their classes during their absence. When Raad requested a full-time
position, the District staff told Raad that she had not been placed
in the hiring pool for the 1992-3 school year because her recommendation
had not been submited on the proper form. Later in a deposition, it
was confirmed that the real reason for not hiring Raad was her accent.
In her third attempt to obtain a full-time Biology teaching position,
Raad again was rejected for the position despite the evidence that she
was highly qualified for the job. The District Court of Alaska granted
summary judment in favor of the defendant as to Raad's claim for national
origin discrimination. However, the 9th Circuit of Appeals
reversed the ruling and held that Raad had a genuine issue of
material fact which precluded summary judgment. The Court stated that
Raad could prove her discrimination claims indirectly by showing that
the employer's explanation of failing to hire her was "unworthy
of credence" because it was internally inconsistent or otherwise not
believable. Additonally, the Court noted that there was evidence that
the EEOC officer informed Raad that she had been denied the position
because of her accent. Therefore, the Court of Appeals held that the
close relationship between language and national origin is classified
as discrimination based on linguistic characteristics and was unlawful
under Title VII.
based on nation origin can also take place when an employee is applying
for a promotion. An excellent example of discriminatory employment practice
in the promotion process is seen in Cuello-Suarez v. Puerto Rico
Electric Power Authority, 988 F. 2d. 275 (1993). Candelaria
Culello-Suarez, a seventeen-year veteran employee of PREPA, held positions
as a clerk and typist. She had a B.A. degree in business administration
and she also obtained her license as a Certified Public Accountant.
She took at least 10 different tests required for promotions and always
recieved above average evaluations in her performance reviews. Culello-Suarez
applied 77 times for promotion to supervisory positions. She was qualified
for at least 69 of the positions she applied for.
employer's regulations for promotion to managerial positions stated:
"The interested supervisor selects the one that he/she considers to
be the best candidate in accordance to the effective norms and in accordance
to the following priority order: (a) Regular and temporary managerial
employees with one or more years of service with the authority; (b)
Non-regular employees; (c) Candidates from the registry of eligibles."
Here the plaintiff was in category (a).
District Court ultimately found that the employer's actions resulted
in a pattern of intentional discrimination on the basis of the plaintiff's
nationality. The First Circuit of Appeals agreed with the District Court's
ruling. The Court's holding was based on the fact that plaintiff had
applied for 77 positions, had always received above average evaluations
and that in 17 years she had not received any reprimands. Also, the
Court noted that the employer often promoted less qualified employees,
and it was silent or provided fanciful explanations for their failure
to select plaintiff for any of the 77 positions.
due to an employee's national origin was also the basis of a claim
for discrimination. An example of a harassment case is seen in Hawana
v. City of New York, 230 F. Supp. 2d 518 (2002). In 1986, Hawana,
an Egyptian man, was hired as a caseworker by a predecessor agency to
the New York City Administration for Children's Services (ACS).
Hawana sued the city and alleged he was subjected to a "hostile work
environment." Hawana, the plaintiff, listed 11 dates on which the
discriminatory acts occurred, although he didn't specify what happened
on each of those dates. In addition, his supervisor had stated that
plaintiff came from a "third-world" country. Between 1996-99, plaintiff
filed repeated requests to be transferred out of his Manhattan ACS office
but the transfers were always denied.
1997, Hawana filed a discrimination charge with the New York City Commission
on Human Rights (CCHR) in which he alleged he was dicriminated against
because he was Egyptian. The CCHR dismissed plaintiff's complaint
and plaintiff was terminated in 2002. In 2002, the EEOC issued
Hawana a right-to-sue letter. An arbitration was held and plaintiff's
union lawyer was present. The arbitrator found that there was no evidence
to prove hostile work environment. Hawana appealed and the Court agreed
with the arbitrator and made a decision favoring defendant. Summary
judgment was granted for the defendant. Based on this case, one can
conclude that it's difficult for a plaintiff to prove that national
origin discrimination creates a "hostile work environmnet." Unlike
other claims under Title VII, there needs to be more than one act of
dicrimination to rise to the levels of working in a "hostile work
of the largest areas of claimed employer discrimination occurs in the
discharge process. An example of discriminatory practice in the discharge
process is seen in Rocco v. American Longwall Corporation, 965
F. Supp. 709 (1997). In this case, plaintiff was an American citizen
who was layed off by his former British employer. Rocco was hired in
1986 by a British corporation which had world-wide operations. He was
hired as district sales manager for the Meco-Owens in the Bristol-Virginia
division for the northern district of the United States. In 1992, plaintiff
was told that the material handling division was disbanded and that
he would not be able to sell belts anymore. Plaintiff alleged that other
British employees who performed similar duties and/or were less qualified
than he was were treated more favorably. Rocco also presented that those
British employees had poor performance based on the company's records.
Rocco showed statistics which indicated that a disproportionate share
of Americans were laid off as compared to British employees. In denying
the employers motion for summary judgment, the Court ruled that it would
not be unreasonable for a jury to conclude that the employer used the
sale of the material handling division as a way to let go unwanted American
addition to national orgin discrimination being claimed by an
individual employee, it sometimes can be claimed by a group of employees
on the basis that the employer has a discriminatory general policy.
An example of how a company.s general policy was discriminatory is
well-illustrated in Equal Employment Opportunity Commission v. Premier
Operator Services, Inc, 113 F. Supp. 2d 1066 (2000). Here,
the EEOC brought a class action on behalf of 13 former Hispanic employees
against their employer which operated related telecommunications companies,
alleging that the "English-only" workplace policy violated Title
VII. The employer/defedant hired the employees based on their
ability to speak Spanish. The employer's business was to service Spanish-speaking
customers in connecting long distance telephone calls. However, defendant
created a "Speak-English-Only" policy prohibiting the speaking of
Spanish on the company premisses. The policy was posted at the entrance
of the company's building as follows:
No Guns, Knives or Weapons of any any kind are allowed on these premises
at any time! English is the official language of Premier Operator Sercives,
Inc. All conversations on these premises are to be in English. Other
languages may be spoken to customers who cannot speak English.
policy prohibited the speaking of Spanish at all times, including lunch
breaks. The discrimination was such that defendant planned to install
a public telephone outside the building so that Hispanic speakers would
have to go outside to make personal phone calls during which they might
speak Spanish. The policy was not job-related or consistent with any
business necessity for the defendant. Plaintiffs alleged that English-Only
policy was implemented and enforced by the defendant as a tool for national
origin discrimination. The Court held that employer's blanket policy
of requiring that English be spoken exclusively, except when communicating
with non-English speaking customer, was disparate treatment discrimination
based upon nation origin, in violation of Title VII. Plaintiff, on behalf
of 13 terminated employees, was entitled to a judgment of $50,000 in
compensatory and punitive damages as to each person. This amount was
to be allocated and assigned by the Court to each component of the damages,
as appropriate, for a total of $650,000.
After defining the laws prohiting national origin discrimination and
the possible consequences for violation of Title VII, this paper now
will focus on how HR managers can prevent national origin discrimination.
There are a number of measures that a HR manager can take in order to
prevent national origin discrimination. First, HR managers should
use best practices decisions when
recruiting, hiring, promoting, firing or layoffs. Concerning
recruitining and hiring, it's considered national origin discrimination
to recruit individuals who belong to certain national origin groups
and excluding members of other national origin groups. It's also considered
unfair practices to recruit individuals by word-of-mouth. This practice
has the effect of discriminating against particular national origin
groups, such as Arab or South Asian applicants. Also, such a recruitment
method is less likely to reach a diverse pool of job seekers and may
tend to reinforce the make-up of the existing work force to the exclusion
of other qualified individuals (EEOC comp).
best way for HR managers to reach qualified applicants is by using a
variety of recruitment and hiring techniques. These techniques include
job fairs and open houses, professional associations, search firms,
internships and scholar programs. Such approaches are more likely to
result in a diverse pool of job seekers. Other tools for recruiting
include specialized publications or websites, including those directed
to particular communities (EEOC comp).
for promoting or transferring an employee, HR managers should not base
such decisions on national origin. Instead, theses decisions should
be based on the qualifications of the applicant. Title VII protects
people from national origin discrimination in all aspects of employment,
including in recruitment, hiring, promotion, transfer, wages
and benefits, work assignments, leave, training, discipline, layoff,
and discharge. HR managers should not tranfer an individual based on
customer or coworker preferences or perceptions about an individual's
ancestry or ethnicity. Such decisions are unlawful and based on discriminatory
preferences. The failure to comply with Title VII can result in employee
claims and consequently litigation. In 2004, the EEOC alone received
8,361 charges of national origin discrimination. This cost employers
over $22.3 million (EEOC statistics).
discipline, demotion, and discharge, HR managers should base their decisions
on either employee misconduct or unsatisfactory work performance. When
HR managers decide to discharge or "lay off" employees, they
should make sure they are doing so for clearly nondiscriminatory reasons
like nationality. Examples of non-discriminatory reasons are seniority,
quality of work or quantity of work (EEOC comp).
HR managers are required to take appropriate steps to prevent and correct
unlwaful national origin harassment. According to EEOC, National
origin harassment occurs when it is so severe or pervasive that the
individual being harassed reasonably finds the work environment to be
hostile or abusive. Examples of national origin harassment include
ethnic slurs, workplace graffiti, or other offensive conduct directed
towards an individual's birthplace, ethnicity, culture, or foreign accent.
Such a hostile environment may be created by the actions of supervisors,
coworkers, or even nonemployees, such as customers or business partners.
The EEOC specifically defines some relevant factors to consider when
evaluating whether national origin harassment has been commited.
Those factors include the following: whether the conduct was physically
threatening or intimidating; how frequently the conduct was repeated;
whether the conduct was hostile and/or patently offensive; the context
in which the harassment occurred; and whether management responded appropriately
when it learned of the harassment
order to treat employees fairly, HR managers should take preventative
steps as well as correct national origin harassment. Probably, the most
important step to prevent national origin harassment is effective communication.
Employees should be made aware that harassment based on national origin
will not be tolerated and that employees who violate the prohibition
against harassment will be disciplined. Those actions should be based
on the company's policies. HR managers should also effectively address
complaints in order to solve future occurences. In addition, HR managers
should train managers on how to identify and respond effectively to
harassment (EEOC comp).
HR managers should not make decisions based on an employee's foreign
launguage, unless the foreign launguage clearly interfers with job perfomance.
Examples of language discrimination include accent discrimination, English
fluency, and English only-rules. Employers need to know that English
fluency is required only for teaching, customer service and telemarketing
service positions. Even for these positions, HR managers must determine
whether the particular individual's accent interferes with the ability
to perform job duties. An English-only rule may be used if it is needed
to promote the safe or efficient operation of the employer's business.
This assessment depends upon the specific duties of the position in
question and the extent to which the individual's accent affects his
or her ability to perform job duties (EEOC comp).
evaluating whether to apply
an English only-rule, HR managers need to make sure that this is required
for the efficiency of the business. In order to decide whether this
is the best way to go, HR managers should consider many factors. First,
there must be clear evidence that there are safety justifications for
the "English only-rule."An example is in the case of emergency for
which employees must speak a common language in order to promote safety.
Second, that there is a business justification, such as communicating
with supervisor or effectively communicating with customers. Third,
it's when the English only-rule is needed for the effectiveness of
the rule in carrying out its objectives. An example is where there are
cooperative work assignments in which a common language is needed to
promote efficiency. Finally, the English fluency of workers affected
by the English only-rule. An employer's use of an English-only rule
should relate to specific circumstances in the workplace. As long as
HR managers can prove that adopting the rule is a "business necessity"
then the company is protected from discrimination claims. However, HR
managers should caution companies from implementing an English only
rule unless it is absolutely necessary and it can be clearly defended
HR managers must treat ALL applicants and employees the same. The
IRCA requires verification of the identity and employment eligibility
of all potential employees, regardless of national origin including
U.S. citizens. In order to do so, HR managers need to train their staff
on how to use the I-9 form. The I-9 form has several combinations of
legally acceptable documents listed on the back from which they can
choose. HR managers should allow applicants or potential employees to
present any document or combination of documents acceptable by law.
The person in charge of checking the I-9 form requirements cannot prefer
one document to others. Not all authorized aliens carry "green-cards."
The IRCA states that as long as the documents are allowed by law and
appear to be genuine on their face and to relate to the individual,
they should be accepted. Applicants should not be asked whether they
are eligible to work in the United States. In addition, the I-9 form
must be retained for three years after the date of hire or one year
after the date of employment (IRCA comp).
failure to verify the identity and employment eligibility is punishable
by fine. The OSC has received more than 6,000 charges of discrimination
based on national origin or citizenship status since 1987. These charges
have a tremendous negative impact on the company. This has cost almost
$2 million in back pay and more than $1.3 million in civil penalties
for violations of the anti-discrimination provisions. According to the
OSC, immigrants from Latin America and Asia are most likely to be victims
of job discrimination based on national origin and citizenship
status. In addition, the OSC has had recent cases that include
even long-time U.S. citizens (IRCA pen).
managers, to be effective, need to recognize that every person in the
United States has ancestors which came from foreign lands. They need
to be cognizant of the many laws which prohibit discrimination acts
based on a person's national origin. It must be understood that national
origin is broadly defined to include a person's ancestory or accent.
A HR manager must be aware of how the Court's interpret the laws and
what employer actions will not be tolerated. Finally, the HR manager
has to effectively communicate with managers and supervisors on how
to deal with employees appropriately and consistently. Only by avoiding
national origin discrimination, can all people truly chase the American
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