An employer discriminates on the basis of national origin when it makes employment decisions based on a person's ancestry, ethnicity or birthplace, or because of traits closely linked to ethnicity (such as surname, accent, cultural identity, and so on). National origin is prohibited by Title VII and the laws of most states.
National origin discrimination sometimes takes a direct form. For example, an employer may refuse to hire anyone from Haiti or refuse to interview anyone with a Hispanic-sounding surname. Sometimes, discrimination takes a more subtle form. For example, en employer might refuse to allow employees to wear garments that reflect their ethnicity, or selectively enforce an “English-only” rule solely against employees who speak Farsi.
Often, national origin discrimination is based on stereotypes about what people from a certain country are “like,” whether the employer itself holds that stereotype or believes that its customers do.
Here are some examples of national origin discrimination:
Because accent is closely associated with national origin, employers can legitimately make job decisions based on an employee’s accent only if the accent significantly interferes with the employee’s ability to do the job. For example, a business might transfer an employee with a heavy accent from a software help desk position to a job that doesn’t require customer contact. Such a transfer would be legitimate if customers had complained that they could not understand his instructions; the same transfer would be illegal if the employee was transferred simply because he had an accent or a particular type of accent, not because the accent impaired his ability to do the job.
An employer may require fluency in a language (such as the ability to speak Cantonese or Spanish) if necessary for business reasons. An employer may also prohibit on-duty employees from speaking any language other than English, in some circumstances. The employer must be able to show that the rule is necessary to the business. If the employer imposes an English-only rule, the employer must tell employees when they have to speak English (for example, whenever customers are present) and the consequences of breaking the rule. The rule must be enforced consistently; in other words, an employer may not selectively enforce an English-only rule solely against employees who speak Spanish or another specific language. And if an English-only rule is challenged, courts will look closely at its scope: If an employer forbids workers from ever speaking another language, even during breaks or when a customer who speaks that language is present, the rule is probably too extensive. For detailed information on English-only and accent rules, see Language and Accent Discrimination in the Workplace.
Title VII does not explicitly prohibit citizenship requirements. However, a requirement that all employees must be U.S. citizens may violate Title VII if it has the purpose or effect of discriminating based on national origin. An employer that does business along the border between the United States and Mexico, for example, could not require all applicants from Mexico to have U.S. citizenship unless it imposes the same requirement on all employees. If that company routinely hired European nationals who did not have U.S. citizenship, it would be applying its criteria in a discriminatory way.
A separate federal law, the Immigration Reform and Control Act (IRCA), prohibits employers from discriminating on the basis of citizenship status, as long as the employee or applicant is legally authorized to work in the United States. However, if a federal law explicitly states that U.S. citizenship is an essential requirement of the job, the employer may make decisions on that basis. IRCA also allows an employer to give a preference to a U.S. citizen or national. Even under this exception, however, an employer may not adopt a blanket policy of preferring U.S. citizens for all job openings.
For more information on IRCA, see Discrimination on the Basis of Citizenship.