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4477
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The Rules Surrounding National

Origin Discrimination

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When it comes to employment discrimination based on national origin, the
Equal Employment Opportunity Commission (EEOC) plays a key role in
enforcing the related civil rights laws. This type of discrimination, says the
EEOC, "involves treating people applicants or employees unfavorably
because they're from a particular country or part of the world, because of
ethnicity or accent, or because they appear to be of a certain ethnic
background even if they are not."

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 An Example
In a recent case, the EEOC accepted a $60,000 settlement agreement with an
employer that the EEOC said was guilty of pay discrimination based on national
origin. A Hispanic supervisor for a New Mexicobased manufacturer complained
to the EEOC that a newly hired white supervisor was paid more than she was.
The Hispanic supervisor had even trained the white employee when he came on
board.

Contributing to the charge of national origin discrimination was the fact that the
Hispanic employee had been instructed not to speak Spanish on the production
floor, even though it was part of her job to do so, said the EEOC. That is, her job
involved translating for other employees who only spoke Spanish.

In addition to being ordered to pay $60,000 to the plaintiff, the manufacturer in

this case agreed to the EEOC's demand that it implement changes. That is, the
company agreed to adopt a new policy that prohibits discrimination and
"includes an explanation [for employees] of how to report discrimination and an
assurance of non-retaliation to employees who complain."

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 Reverse Discrimination?
Occasionally anti-discrimination litigation takes an interesting turn. For
example, a California-based distributor of Mexican-style food was recently
charged with discriminating against non-Hispanic job applicants.

According to the EEOC complaint, the company discouraged non-Hispanic

applicants from seeking open positions, asking them if they spoke Spanish
"even when speaking Spanish was not a job requirement." (A resolution has
not yet been reached.)

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 National Origin Discrimination Has a Long Reach
In its basic explanation of the nature of national origin discrimination, the
EEOC notes that it covers not only hiring and pay practices, but "any aspect of
employment," including job assignments, training opportunities and fringe
benefits.

A national origin discrimination case can also arise from charges of

harassment. Where does the EEOC draw the line? Harassment doesn't include
"simple teasing, offhand comments, or isolated incidents that are not very
serious." But the line is crossed "when it is so frequent or severe that it
creates a hostile or offensive work environment, or when it results in an
adverse employment decision."

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 "English-Only" Rule
As indicated in the two cases cited above, language requirements can be
taken as evidence of illegal discrimination. Employers can require English
language fluency only "if it is necessary to perform the job effectively," states
the EEOC.

Similarly, requiring employees to speak only English on the job is prohibited

unless this practice "is needed to ensure the safe and efficient operation of
the employer's business and is put in place for nondiscriminatory reasons."
Similarly, you cannot base a hiring decision on a prospective employee's
accent "unless the accent seriously interferes with the employee's job
performance."

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 Not Limited to Employer and Employee
According to the EEOC, discrimination also can be indirect, aimed at the
spouse or close associate of an employee if that person is "of a certain
national origin.

And not only can employers face discrimination charges when coworkers and
supervisors harass an employee, but they can face them if the perpetrators
are clients or customers of the business. For that reason, employees should be
instructed to report harassment from any source related to the company.

Handling discrimination is always a delicate issue, but if a customer is the

alleged perpetrator, a whole new layer of caution may be required. The
bottom line is that employers shouldn't simply look the other way if evidence
of discrimination is presented. While it might not always be possible to
prevent, demonstrating to the complaining employee that you take the matter
seriously can go a long way toward heading off more serious problems.

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Citizenship Status Discrimination Rules
The Immigration Reform and Control Act of 1986 declares it illegal for
employers to make hiring or firing decisions based on an individual's
immigration status, "unless required to do so by law, regulation or
government contract," according to the EEOC.

That means, for example, that you cannot limit your hiring to U.S. citizens and
permanent residents. In addition, "employers may not refuse to accept lawful
documentation that establishes the employment eligibility of an employee, or
demand additional documentation beyond what is legally required, when
verifying employment eligibility based on the employee's national origin or
citizenship status," the EEOC states. Job applicants may decide which of the
Form I-9 documents they wish to show to verify employment eligibility.

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