Understanding National Origin Discrimination – Part 2
Last week, we discussed the definition
of national origin discrimination and the requirements imposed on employers by
state and federal law. Today’s post provides examples of workplace issues involving
workers’ national origin, and provides points for employers to consider as they
manage national origin issues in the workplace.
National origin discrimination
claims can arise from lots of different circumstances. A fairly classic set of
facts is presented in a November 2016 suit brought by the EEOC.The agency alleges that a temporary
staffing firmsegregated Latino workers in less desirable, more hazardous
positions, paid them less, and provided fewer hours than their non-Hispanic
counterparts. When the Latino workers complained about ongoing harassment
including ethnic slurs, threats, and verbal abuse, the staffing firm did
In 2015, theEEOC brought suit against National Tire & Batteryin a case involving facts that have become more common
since 9/11.The suit alleged that
managers and coworkers regularly called an Arab Muslim mechanic “Taliban,”
“al-Qaeda,” “bin Laden,” and “terrorist” and accused him of making bombs. The
mechanic complained repeatedly to management, but the company did nothing to
stop the harassment. The case eventually settled for $22,500.In a similar case, the EEOC charged
that a car dealership in Illinois subjected three Arab Muslim employees to a hostile
work environment, alleging that the dealership’s managers used offensive slurs
such as “terrorist” and “Hezbollah” and made mocking and insulting references
to the Qur’an and the manner in which Muslims pray. That case was settled for $100,000.
Many claims of discrimination
based on national origin involve allegations that an employee was instructed to
speak—or not speak—a particular language. Just a few weeks ago, the EEOCannouncedthat Kevothermal, a
manufacturer of vacuum insulation panels, agreed to pay $60,000 and change its
practices in order to settle a lawsuit in which it was alleged that a Hispanic
employee was instructed not to speak Spanish on the production floor, although
it was part of her job to translate for other employees who only spoke Spanish.
In another case,the EEOC sued a Wisconsin plastics companyfor firing a group of Hmong and Hispanic employees based
on 10-minute observations that marked them down for English skills, even though
those skills were not needed to perform their jobs.
In aparticularly interesting case, Hispanic employees sued Target for national origin discrimination based
in part on the company’s distribution of an internal memo with “Multi-Cultural
Tips” for managers, which included reminders that not all employees eat tacos
and wear sombreros. The suit also alleged that supervisors, who were nearly all
Caucasians, frequently used racial slurs with Hispanic employees. Targetapologizedfor the tip sheet, but we
can’t find any reports on the outcome of this litigation.
National origin discrimination
claims can result in significant financial consequences for employers. In 2015,
Patterson-UTI Drillingagreed to pay $14.5 millionto settle a class-action suit alleging a nationwide pattern of
discrimination on the company’s oil rigs. The drilling company was accusedof assigning minorities to the
lowest level jobs, failing to train and promote minorities, and disciplining
and demoting minority employees disproportionately. Hispanic employees said
they were subject to racial slurs that escalated to physical harassment.
The EEOC has made national
origin discrimination a particular priority. In 2016, EEOC chair Jenny Yangsaidthat the EEOC “has identified
protecting immigrant, migrant, and other vulnerable populations as a national
strategic priority.” In addition to its recently publishedenforcement guidance, the EEOC recently published
anotherguidance tooltitled “What You Should Know
About Religious and National Origin Discrimination Against Those Who Are, or
Are Perceived to Be, Muslim or Middle Eastern.” The agency included in itsStrategic Enforcement Plan for Fiscal Years 2017-2021the emerging priority of addressing backlash
discrimination against those who are Muslim or Sikh, or persons of Arab, Middle
Eastern or South Asian descent, and persons perceived to be members of these
groups.If the EEOC is concerned about this, employers
should be too. Here are some suggestions for employer action:
Educate HR professionals, managers and supervisors about legal requirements and the definition of national origin discrimination.They are an employer’s eyes and ears in the workplace, and can recognize issues before they escalate into problems.
Establish and enforce a zero-tolerance policy for harassment based on national origin. Investigate claims and discipline offenders.
Scrutinize hiring policies and practices to identify and eliminate those which discourage, screen out, or segregate applicants and employees based on national origin.
Be extremely wary of English-only policies and English fluency requirements, adopting only those that are based on verifiable business necessity.
Never allow customer preference to result in discriminatory policies and practices.