An Ohio federal court in has held that a Mexican-American production supervisor who was born in Texas could not pursue a claim that he was discriminated against based on his belief that his employer him to be of Mexican national origin. Noting the “widespread failure” failure of similar claims under Title VII and the fact that Ohio courts generally follow Title VII when evaluating the analogous Ohio law, the court held that claims of perceived national origin discrimination are not cognizable under Ohio law. The court also rejected Longoria’s claims of race discrimination and retaliation on the merits.
“Perceived national origin” claim not permitted
Although he was of American origin, having been born in Texas, Longoria claimed he suffered discrimination based on the perception he was from Mexico. In support of his claims, Longoria argued that he was fired five months after complaining that someone in the workplace had changed the background on a shared computer to an ethnically offensive cartoon that depicted a caricature of a “Mexican man on a donkey with a sombrero and a poncho.” Thus, Longoria alleged that he was discriminated against because of his perceived national origin. The court rejected this claim, noting that no Ohio case law has validated, or even discussed, such a theory of liability. In reaching this outcome, the court recognized that Ohio courts generally look to Title VII precedent in instances when there is no established precedent under Ohio law. The court concluded Ohio courts would not recognize a perceived national origin discrimination claim “given its widespread failure in the federal district courts.” Because the claim did not state a valid theory of liability, the court granted the employer’s motion for summary judgment on the matter.
Although the Longoria decision finds a fair bit of support among the federal courts, it clearly is at odds with the EEOC’s position. According to the EEOC, “[n]ational origin discrimination involves treating people (applicants or employees) unfavorably because they are 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).” Similarly, the EEOC’s rules at 29 C.F.R. §1606.1 define “national origin” broadly to include:
The denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group. The Commission will examine with particular concern charges alleging that individuals within the jurisdiction of the Commission have been denied equal employment opportunity for reasons which are grounded in national origin considerations, such as (a) marriage to or association with persons of a national origin group; (b) membership in, or association with an organization identified with or seeking to promote the interests of national origin groups; (c) attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group; and (d) because an individual’s name or spouse’s name is associated with a national origin group.
Finally, the EEOC’s Proposed Enforcement Guidance on National Origin Discrimination, issued in June of this year, expressly states that “Title VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin.”
Employee charges of discrimination brought under Title VII on the basis of being perceived to be in a protected class must still be brought first before the EEOC, which clearly has indicated that it will find probable cause that discrimination occurred. Under Ohio law, employees have the option of pursuing discrimination claims at the Ohio Civil Rights Commission (OCRC) or filing a lawsuit in court. For those charges filed with the OCRC, it is likely that the investigator and the Commission itself will defer to the EEOC’s interpretation of the law. Regardless of how the employee chooses to proceed, it will be an expensive road for the employer to travel before possibly obtaining a favorable decision. Therefore, although the Longoria court held that Ohio law and Title VII do not recognize a cause of action for perceived national origin discrimination, Ohio employers still should take all reasonable steps to ensure that managers’ employment decisions are not based on any factors that can be associated with an individual’s national origin (or for that matter race, color, religion, etc.).