BEWARE THE MANY FORMS OF NATIONAL ORIGIN DISCRIMINATION
By Shawn Smith, J.D.



In the wake of recent world events, the Equal Employment Opportunity Commission and state governments have expressed renewed concern about rising instances of national origin discrimination, particularly against individuals who are-or are believed to be-Muslim, Arab, South Asian or Sikh.

Most employers are aware that refusing to hire or promote an individual based upon the country that he is from or the fact that she shares a common ancestry with people from a particular place is a violation of Title VII of the Civil Rights Act of 1964 (Title VII). This type of blatant discrimination is usually easy to spot.

What many business do not fully understand, however, is that certain outwardly "neutral" policies, practices or decisions can have an unfair impact on specific categories of employees. Even if you do not intend to discriminate, you may be held liable for actions that have a disproportionate impact on one or more protected categories of worker if you cannot demonstrate that the requirement is job related and serves a legitimate business purpose. If your practices are challenged in court, it will generally be up to you as the employer to show that there were valid reasons for your decisions.

There are several components of national origin discrimination to which you should pay particular attention when setting rules or policies or making other employment decisions.

  • Foreign accents. You are restricted from making employment decisions based on a person's foreign accent unless the accent genuinely affects the ability to perform job duties. In other words, the accent must be such as to interfere with communications skills and effective communications skills must be necessary for the job. Teaching and telemarketing positions are among those that may require effective oral communications skills, but you must always look at individual circumstances to determine whether a worker's accent realistically bars this person from doing an effective job.
  • English fluency requirements. Similar to the rules regarding foreign accents, you can only require employees to be fluent in English if fluency is a real and reasonable requirement for the job. While English fluency may reasonably be required of a sales person, it is harder to argue that fluency is needed for a janitorial position.
  • English-only rules. Be careful before adopting policies requiring employees to speak English only at the workplace. These policies are allowable if they are not implemented for discriminatory reasons and the rule is needed in order for the business to run safely and efficiently. Allowable reasons may include communications with customers and co-workers who speak only English; emergencies where people must speak a common language to ensure safety; and co-operative work assignments where a common language will enhance efficiency. Therefore, while a policy requiring bank tellers to speak English to the bank's English-speaking customers is appropriate, a policy requiring the same tellers to speak only English during breaks is unacceptable. Policies that allow some foreign languages to be spoken and not others are likewise impermissible. If you adopt an English-only rule, you must notify employees of the rule, as well as the consequences for violation.
  • Citizenship reqirements. Title VII does not specifically outlaw discrimination based upon citizenship, but it does prohibit using citizenship as a pretext for discriminating on the basis of national origin. If you choose to adopt a rule excluding non-citizens, be sure to adhere to the rule consistently, and not keep one group out while admitting another.
  • Height and weight requirements. Establishing specific height and weight requirements for designated positions may violate the national origin provisions of Title VII if the standards imposed impact specific ethnic groups. Height and weight requirements must bear a legitimate relationship to successful performance of the job.