Employers Must Remain Vigilant To Prevent National Origin Discrimination

Lisa M Lamm Bachman

By Lisa M. Lamm Bachman

President Trump’s controversial Executive Order relative to immigration coupled with renewed efforts to strengthen immigration enforcement highlights the immediate importance of implementing and maintaining measures to prevent national origin discrimination in the workplace. Considering the fact that the current political climate continues to polarize general beliefs about national origin and immigration, now is the time for employers to focus on the prevention of discrimination claims, including claims related to national origin. Employers are encouraged to consider a recent updated enforcement guidance issued by the Equal Employment Opportunity Commission (EEOC).

Coincidentally, within days of the presidential election, the EEOC issued an updated enforcement guidance Nov. 18, 2016, on national origin discrimination replacing the 2002 compliance manual section on that subject. In conjunction with the updated enforcement guidance, the EEOC issued a question and answer publication and small business fact sheet which employers should consult as a helpful resource in bolstering efforts to prevent and/or eliminate national origin discrimination claims. Such claims include harassment if an individual perceives that the work environment is hostile due to ethnic slurs, physical violence, intimidation, or other offensive conduct directed toward the individual because of his or her birthplace, ethnicity, language, dress, foreign accent or culture.

No. 1 – What is national origin discrimination and is this something that could impact my business? Title VII of the Civil Rights Act of 1964 prohibits discrimination against an individual based on their national origin which includes being from a certain country, former country, or place associated with a particular ethnic group. Likewise, an individual’s national origin may also include sharing physical, cultural or language characteristics of a particular national origin group or ethnic group. Notably, national origin does not include or refer to citizenship or immigration status. Title VII applies to employers with 15 or more full- or part-time employees, protects both employees and applicants, and is applicable to all employment decisions including recruitment, hiring, promotion, work assignments, segregation and classification, transfer, wages and benefits, leave, training and apprenticeship programs, discipline, layoff and termination, and other terms and conditions of employment.

No. 2 – The majority of our customers are English speaking, is it national origin discrimination to require that our employees speak English when communicating with the customer? If there is a business reason for requiring employees to speak English while interacting with customers, then this may not amount to national origin discrimination. However, employers should avoid broad blanket policies relative to language restrictions. This means that the language restriction should be one that does not apply to all jobs or at all times, locations or workplace situations.

Restrictive language policies may be appropriate if the employer can demonstrate that certain employment situations require English-only if necessary for promoting a safe work environment (i.e., working with certain equipment or a certain process) or for efficiency of overall business operations or an employee’s job performance. However, the ability to speak English does not mean that an individual must be free of an accent or have a specific fluency level. Employers imposing an English-only rule may be creating an adverse work environment for those employees who are bilingual or whose primary language is not English because they are prevented from communicating at work in their most effective language. Restrictive language policies that apply at all times including lunch, breaks and other personal time at the employer’s premises are considered presumptively unlawful.

No. 3 – How does national origin discrimination relate to an employer’s obligation to obtain documentation to complete the I-9 form? An employer is required to verify the identity and work authorization for all new hires. Yet, employers may not treat such individuals differently due to information concerning their national origin. Instead, employers must apply the same requirements to all new hires regardless of the individual’s national origin. This means that if a new hire has not yet obtained a social security number or is not a U.S. citizen, they must not be required to provide any more documents than necessary to verify employment eligibility. Such a requirement is prohibited by the Immigration and Nationality Act (INA), which prohibits employers with four or more employees from discriminating because of citizenship or immigration status against U.S. citizens and certain classes of foreign nationals authorized to work in the United States with respect to hiring, firing or recruitment.

Additionally, a practice of requiring all new hires to provide a social security card for purposes of the I-9 form may amount to national origin discrimination if it results in affecting a disproportionate number of work-authorized individuals who are of a particular national origin. Similar reasoning applies to requiring citizenship of all new hires. If the individual can establish his or her authorization to work, then immigration status is irrelevant and Title VII will prohibit any form of national origin discrimination or harassment.

No. 4 – As an employer, is there anything that can be done to prevent national origin claims of discrimination? There are steps that employers should implement to either eliminate or limit liability if an employee asserts a national origin discrimination claim. Such steps include adopting fair and impartial anti-harassment policies and procedures, implementing discipline for employees who violate any prohibition against harassment, and clear communication that harassment based on national origin will not be tolerated in the workplace. Due to potential language barriers, employers should consider providing training on policies in the languages spoken by their employees so that employees understand the process for reporting harassment incidents. Likewise, employers are encouraged to translate written policies into the languages spoken by their employees to ensure that all employees understand the policies and procedures prohibiting national origin discrimination.


Lisa Lamm Bachman, a partner at Foley & Mansfield, focuses her practice in employment law and litigation. In her more than 20 years of practice, Lisa has tried numerous cases before both bench and jury, and has handled more than a dozen appellate proceedings. She can be reached by email at lbachman@foleymansfield.com.