On the third day of Christmas I am the recipient of more birds, but not just any bird—French hens to be specific. And it’s the origin of the hens that could be causing HR some headaches. While we talk often about race and gender discrimination, national origin discrimination oftentimes is lumped under the race subject when we talk about anti-discrimination so it is important to have a quick brush-up on what national origin discrimination includes, because really, does it matter if the hens are French or Chinese Silkie?
The EEOC identifies national origin discrimination as including “discrimination because a person (or his or her ancestors) comes from a particular place. The place is usually a country or a former country,“ and “in some cases, the place has never been a country, but is closely associated with a group of people who share a common language, culture, ancestry, and/or other similar social characteristics, for example Kurdistan.” Discrimination against a national origin group can include discrimination based on ethnicity, physical, linguistic, or cultural traits, as well as perception of a trait.
With regard to ethnicity, the discrimination will occur because an individual is or is not a member of an ethnic group. When discussing cultural traits, discrimination can occur when behavior is based off of cultural characteristics that are closely associated with a national origin group, such as discrimination against someone based off of traditional cultural styles of dress. Finally, discrimination can occur based off employer perception, in that liability can attach based off of an employer’s belief an employee is a member of a particular national origin group, without regard to whether this is true. The EEOC uses as an example, “discrimination against someone perceived as being Arab based on his speech, mannerisms, and appearance, regardless of how he identifies himself or whether he is, in fact, of Arab ethnicity,” as being national original discrimination as a result of perception.
The EEOC identifies one area within national origin discrimination that has received hightened attention—language issues. Employers have argued that in certain situations, employers have a legitimate business reason for basing employment decisions on linguistic characteristics. The problem becomes, linguistic characteristics are closely associated with national origin. While Title VII does permit employers to adopt English-only rules in certain limited circumstances, we do not recommend the policy and in evaluating whether such a rule is appropriate for your workplace suggest you analyze a number of issues including: 1) evidence of safety justifications for the rule; 2) evidence of other business justifications for the rule, such as supervision or effective communications with customers; 3) likely effectiveness of the rule in carrying out objectives; and 4) the English proficiency of workers who are affected by the rule. Companies should also be cautious when employment decisions are based on accent and/or fluency requirements.