On-the-Job Discrimination: National Origin Discrimination
The Civil Rights Act of 1964, in combination with the Civil Rights Act of 1991, serves to protect the rights of various groups of people from discrimination in the workplace based on membership in a protected category. The Civil Rights Act of 1991 clarified the scope of protection and remedies available to victims of discrimination. Several federal agencies work closely with state governments and employers to prevent discrimination in the workplace. These include the Department of Labor and the Equal Employment Opportunity Commission. In recent years, the law has increasingly focused on the discrimination faced by workers on the basis of national origin. In light of the events of September 11, 2001, the increased attention on national origin discrimination cases is timely and appropriate. Workers of different nationalities are subjected to some very specific types of discrimination discussed more fully below.
- Under federal law it is unlawful to discriminate against an employee or potential employee on the basis of national origin. That means employers may not discriminate because the employee comes from a particular place, because she is a member of an ethnic group, because she has an accent, or because it is believed that the employee has some particular ethnic background.
- The ban on discrimination applies to hiring and firing practices, as well as promotion, pay, job training or any other term, condition or privilege of employment.
- Furthermore, one cannot be discriminated against on the basis of association with persons of some national origin, whether that association be through marriage, friendship, ethnic organizations or groups, or traditionally ethnic churches and schools.
- Similarly, employers may not discriminate on the basis of a condition that predominately affects a given ethnicity, unless it can be proven that the presence of the condition somehow affects the business adversely.
- Harassment of employees due to their national origin, whether by the employer, co-workers, or third persons at the worksite, is forbidden under federal laws.
- Businesses may not segregate employees on the basis of national origin.
- Accent discrimination is impermissible under most circumstances. Similarly, English fluency rules are permissible only if it can be demonstrated that they are required for the effective performance of the position for which they are imposed.
- English-only rules are acceptable only if they are adopted for non-discriminatory reasons, such as workplace safety.
- Protected Categories are groups of persons with characteristics in common, such as race, sex or nationality, that Congress has decided must be protected from discriminatory practices. Congress generally bases this determination on a history of discrimination.
- Accent Discrimination refers to basing an employment decision on the presence of a foreign accent. If an employer can prove that the accent interfered with job performance, then the presumption of discrimination may be rebutted.
- Harassment includes, but is not limited to, ethnic slurs, racial "jokes," offensive or derogatory comments, or any other verbal or physical conduct based on race or ethnicity. To rise to the level of harassment, the conduct must create an intimidating, hostile or offensive working environment, or interfere with the employee's work performance.
- Segregation is the practice of physically isolating minority group employees from other employees, prohibiting customer contact with minority employees, or assignment of minority workers to primarily minority establishments or geographic areas.
- Classification refers to the practice of coding applications for employment on the basis of national origin. While this practice is not prohibited under the law, it can be used as evidence against the employer when minorities are excluded from employment or from certain positions.
Filing Requirements and Limitations:
- Your claim must first be pre-filed with the EEOC within 180 days of the potentially unlawful action or within 300 days of the unlawful action if your state is a referral jurisdiction state. Tennessee is a referral jurisdiction state. The deadline will not be extended because of internal investigation of the incident within the company.
- A lawsuit must be filed within 90 days of the receipt of a right-to-sue letter from the EEOC.
- If you believe that you have been discriminated against on the basis of national origin, it is best to contact an attorney immediately, who will advise you of your rights and duties under the law.
- The federal law that governs race/color discrimination, the Civil Rights Act of 1964, also known as Title VII, only applies to companies and businesses with 15 or more employees.
- These laws also apply to foreign nationals working in the United States, regardless of citizenship. However, pursuit of a claim may be more difficult if the foreign national lacks a work permit.
Remedies and Damages:
- Back Pay
- This is the most common form of relief.
- It includes the value of wages, salary, and fringe benefits the claimant would have received during the period of discrimination from the date of termination/failure to promote to the date of trial.
- You have a duty to mitigate these damages by taking reasonable efforts to find comparable employment after you have been terminated.
- Compensatory Damages
- Awarded for emotional distress, pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life.
- Individual claim caps are placed on this type of damages based on the size of the employer.
- ·Attorney's Fees
- The court may choose to award attorney's fees to the prevailing, or winning, party.
- Punitive Damages
- These types of damages are limited to cases in which the employer's discrimination is intentional and was done with malice or reckless indifference to the individual's rights. Punitive damages are meant to punish the defendant for its behavior. Therefore, not every case will merit punitive damages.
- Claim caps also apply to these awards.
- Front Pay
- Designed to compensate the victim for anticipated future losses due to the discrimination when the employer refuses to reinstate the employer or the court determines that reinstatement is not feasible.
- Injunctive Relief
- Common examples of injunctive relief include reinstating a terminated employee or ordering the employer to prevent future discrimination.