National origin or nationality discrimination in the workplace refers to the unfavourable treatment of individuals based on their country of origin or because they are from a particular part of the world. Equal employment opportunity should be granted to everyone regardless of birthplace, ancestry, linguistic characteristics or culture.
Employment discrimination based on national origin can occur in numerous ways, from refusal to hire someone because of their nationality to offensive interview questions. Nationality discrimination may also be subtle.
The U.S. federal law, Title VII of the Civil Rights Act of 1964, prohibits this kind of discriminatory behavior in all aspects of employment such as promotions, job assignments, layoffs, training, fringe benefits and salaries. According to the Immigration Reform and Control Act of 1986 (IRCA), it is unlawful for an employer to discriminate employees or job applicants based on their citizenship or immigration status.
Some examples of nationality discrimination covered under Title VII include:
The law prohibits employment decisions such as recruitment, hiring, promotion, layoffs, trainings, paid leaves and job assignments that might be discriminating based on national origin.
Harassment refers to any unwelcome verbal or physical behavior that creates a hostile work environment and unreasonably interferes with an employee’s work performance. Harassment based on national origin may include ethnic slurs, physical violence, workplace graffiti, name calling, threats, and circulating offensive media.
An employer may require their employees to be able to speak and understand a language if the requirement arises out of a business necessity. For example, a retail company targeting English speaking customers may choose fluent English speakers as salespeople over other applicants that do not speak English well.
An employer may not make an employment decision based on an employee or job applicant’s foreign accent unless effective spoken communication is required to perform the job effectively.
A language fluency requirement is only lawful if it is required to perform the job effectively.
Citizenship discrimination is not lawful under Title VII. However, it prohibits citizenship discrimination when it has the purpose of discriminating on the basis of nation origin.
Bona Fide Occupational Qualification
There can be exceptions in some situations where an employer may be allowed to show a preference for an employee of a national origin over another national origin. For this, the specific national origin must be a “bona fide occupational qualification” for the job position.
Employers may also have English-only or language policies, which are lawful under limited circumstances. If an employer adopts such policy, they should be able to justify the business necessity and a non-discriminatory reason for it.
The bona fide occupational qualification provision of Title VII reads,
“[I]t shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise…”
It is also unlawful for employers to retaliate against an employee or job applicant who complains or assists a colleague in complaining of nationality discrimination.
Prevent national origin discrimination
- An employer should avoid national origin bias in all aspects of employment, beginning with pre-employment inquiries and hiring processes.
- A diversity training program can help communicate an established policy against nationality discrimination to all employees and inform them of their right to complain to management.
- Employers should proceed carefully when it comes to ethnic jokes and stereotypes and speak directly the employee who is engaging in discriminatory conduct. They should not hesitate to take immediate steps to stop any discriminatory conduct in the workplace.