Questions and Answers for Small Employers About National Origin Discrimination
Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating in employment based on an individual's national origin. National origin discrimination means treating someone less favorably because he or she comes from a particular place, because of his or her ethnicity or accent, or because he or she appears to have a particular ethnic background. National origin discrimination also means treating someone less favorably at work because of marriage or other association with someone of a particular nationality.
The following questions and answers address some of the key issues that small businesses face related to national origin discrimination. While specifically developed for small businesses, the information discussed below applies more generally and will be valuable to anyone interested in Title VII's prohibitions against national origin discrimination.
These questions and answers are adapted from the EEOC's Compliance Manual Section on National Origin Discrimination. Anyone wishing to learn more about national origin discrimination should call 1-800-669-3362 to request a free copy of the National Origin Section, or review it at EEOC's website. Other information is available at the EEOC's national origin web page. Additional information for small business is also available at EEOC's Information for Small Business web page.
What employment decisions are covered by Title VII?
Examples of employment decisions covered by Title VII include recruitment, hiring, promotion, transfer, wages and benefits, work assignments, leave, training, discipline, layoff, and discharge.
May an employer rely on customer or coworker preference in making employment decisions? For example, what should an employer do if current employees seem to prefer working with people of certain nationalities but not others?
Customer or coworker perceptions about an individual's ancestry or ethnicity should not be the basis for an employment decision. Employment decisions that are based on the discriminatory preferences of customers or coworkers are just as unlawful as decisions based on an employer's own discriminatory preferences.
What security requirements may an employer impose?
Security requirements may be used as long as they are applied to employees or applicants without regard to national origin. The key is to avoid singling out an individual or group based on national origin when applying security requirements. Other federal law also may require security clearances for sensitive positions. Finally, release of personnel records in accordance with the USA PATRIOT Act does not violate Title VII.
When does harassment violate Title VII?
Harassing conduct, such as ethnic epithets or other offensive conduct toward an individual's nationality, violates Title VII when the conduct unreasonably interferes with the affected individual's work performance or creates an intimidating, hostile, or offensive work environment for the affected individual, as illustrated below:
Muhammad, an Arab-American, works for XYZ Motors, a large automobile dealership. His coworkers regularly call him names like "camel jockey," "the local terrorist," and "the ayatollah," and intentionally embarrass him in front of customers by claiming that he is incompetent. Muhammad reports this conduct to higher management, but XYZ does not respond. The constant ridicule has made it difficult for Muhammad to do his job. The frequent, severe, and offensive conduct linked to Muhammad's national origin has created a hostile work environment in violation of Title VII.
What steps should an employer take to prevent unlawful workplace harassment?
The most important step for an employer in preventing harassment is clearly communicating to employees that harassment based on national origin will not be tolerated and that employees who violate the prohibition against harassment will be disciplined. Other important steps include adopting effective and clearly communicated policies and procedures for addressing complaints of national origin harassment, and training managers on how to identify and respond effectively to harassment. By encouraging employees and managers to report harassing conduct at an early stage, employers generally will be able to prevent the conduct from escalating to the point at which it violates Title VII.
May an employer ever base an employment action on an individual's foreign accent or limited English proficiency?
An employer may consider an employee's foreign accent if the individual's accent materially interferes with the ability to perform job duties. 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. Similarly, an English fluency requirement should reflect the actual level of proficiency required for the position for which it is imposed. The following example illustrates these principles:
Jorge, a Dominican national, applies for a sales position with XYZ Appliances, a small retailer of home appliances in a non-bilingual, English-speaking community. Jorge has very limited skill with spoken English. XYZ notifies him that he is not qualified for a sales position because his ability to effectively assist customers is limited. However, XYZ offers to consider him for a position in the stock room. Under these circumstances, XYZ's decision to exclude Jorge from the sales position does not violate Title VII.
May employers adopt policies that require employees to speak only English in the workplace?
An English-only rule may be used if it is needed to promote the safe or efficient operation of the employer's business. Some situations in which business necessity would justify an English-only rule include: communications with customers, coworkers, or supervisors who only speak English; emergency situations in which workers must speak a common language to promote safety; and cooperative work assignments in which a common language is needed to promote efficiency. An employer's use of an English-only rule should relate to specific circumstances in the workplace.
What types of dress codes may an employer adopt?
A dress code must not treat some employees less favorably because of their national origin. For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional African or Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin. An employer may require all workers to follow a uniform dress code even if the dress code conflicts with some workers' ethnic beliefs or practices. However, if the dress code conflicts with religious practices, the employer must modify the dress code unless doing so would result in undue hardship.
May an employer require U.S. citizenship?
Citizenship requirements generally do not violate Title VII. Like other employment policies, however, citizenship requirements may not be adopted for discriminatory reasons. Citizenship requirements also must be enforced evenhandedly. For example, an employer may not refuse to hire Egyptian citizens for certain positions based on their lack of U.S. citizenship while hiring British citizens for the same positions. In addition, while Title VII does not prohibit citizenship discrimination, the Immigration Reform and Control Act of 1986 (IRCA) prohibits employers with four or more employees from discriminating because of citizenship status with respect to hiring, referral, or discharge. IRCA's nondiscrimination requirements are enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, at the Department of Justice.
Does Title VII's prohibition against national origin discrimination also apply to American-born employees?
Title VII protects every employee or applicant against discrimination based on his or her own national origin, including people born in the United States.
Are foreign nationals protected by Title VII?
Foreign nationals employed in the United States are protected by Title VII to the same extent as U.S. citizens. However, because of immigration policy, the remedies available to an individual without proper work authorization may be limited.
What should an employer do when someone has complained about national origin discrimination?
Employers should investigate and seek to resolve any complaint of discrimination by a worker. Employers should remember that in all cases, it is unlawful to retaliate against a worker who makes a complaint of discrimination in the workplace.