What employers need to know about national origin discrimination
While the #MeToo movement has highlighted the issue of sexual harassment in the workplace, employers are responsible for maintaining workplaces that are free from harassment based on any protected category. Given the current political climate around immigration, employers should be particularly vigilant about ensuring that their workplaces are free from discrimination and harassment on the basis of national origin.
National origin discrimination involves treating 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 even if they are not. Unlawful national origin discrimination may include discrimination because of a person’s looks, dress, customs, or language.
As the Equal Employment Opportunity Commission (EEOC) states on its website, “Ethnic slurs and other verbal or physical conduct because of nationality are illegal if they are severe or pervasive and create an intimidating, hostile or offensive working environment, interfere with work performance, or negatively affect job opportunities.” According to the EEOC, examples of discriminatory behavior, based upon national origin, may include:
- Insults, taunting, or ethnic epithets, such as making fun of a person’s foreign accent or comments like, “Go back to where you came from,” whether made by supervisors or by co-workers.
- Rules requiring employees to speak only English in the workplace, unless the employer can show that they are justified by business necessity.
- Discrimination against an individual because of his/her association with someone of a particular national origin. For example, it is unlawful to discriminate against a person because he/she is married to or has a child with someone of a different national origin or ethnicity.
- Discrimination based on citizenship status if it has the purpose or effect of discriminating based on national origin.
As a good legal and business practice, employers should make every effort to promote a positive workplace culture and an environment that is free from harassment. Establishing such a workplace begins with the consistent and demonstrated commitment of management to create and maintain a culture in which harassment simply will not be tolerated. As the EEOC has stated, executive leadership can show that commitment by, among other things, ensuring that the organization:
- Has in place an anti-harassment policy that is comprehensive, easy to understand, and regularly communicated to all employees;
- Maintains a harassment complaint procedure that is accessible to all employees, has multiple avenues for raising complaints, and is regularly communicated to all employees;
- Regularly and effectively trains supervisors and managers about how to prevent, recognize, and respond to conduct that, if left unchecked, may rise to the level of prohibited harassment; and
- Imposes discipline that is prompt, consistent, and proportionate to the severity of the harassment and/or related conduct, such as retaliation, when it determines that such conduct has occurred.
In addition to promoting a healthy work environment, these steps can prevent legal claims and ultimately provide a defense to any claim that may be asserted. Employers should consult with experienced human resources professionals and/or labor and employment counsel about implementing effective policies and complaint procedures and conducting anti-harassment training on a regular basis. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
About the Author
Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.