As reports of tense situations related to national origin flood the news—everything from slurs directed toward people from countries included in President Donald Trump’s travel ban to insults aimed at Hispanic people trying to enter the U.S.—employers need to be on notice of the dangers of national origin discrimination.
Reports of people making assumptions about others based on national origin are so frequently going viral, at least some of the inflammatory rhetoric is bound to find its way into the workplace. Besides its effect on morale, such language presents a serious legal danger.
Discrimination and harassment based on national origin is prohibited by Title VII of the Civil Rights Act of 1964 just as discrimination and harassment based on race, color, religion, and gender are prohibited.
Jacob M. Monty, an attorney with Monty & Ramirez LLP in Houston, Texas, points to a recent case in which the Equal Employment Opportunity Commission brought a suit against Halliburton Energy Services, Inc. The suit, announced on July 3, claims the company subjected two employees to national origin and religious discrimination and that Halliburton unlawfully retaliated against one of the employees by firing him for reporting mistreatment.
The employees, one of Syrian national origin and the other of Indian national origin, claim they were called names such as “camel jockey” and were accused of being associated with ISIS.
“Sometimes national origin gets treated as the stepchild in the Title VII arena,” Monty says, since race discrimination is what gave rise to the civil rights movement. But employers must remember, particularly as the workforce has become more global, that the same prohibitions that apply to race also apply to national origin.
As in the case of the Halliburton lawsuit, employees sometimes accuse coworkers of Middle Eastern origin, or those perceived to be of Middle Eastern origin, of having ties to terrorism. That can constitute national origin discrimination unless there’s a basis for the claim.
Sometimes people bemoan what they see as an overemphasis on political correctness, but Monty stresses that if employees actually make threats or openly advocate support for ISIS or other terror organizations, those employees should not only be reported to human resources but also to law enforcement.
“You don’t have to check your common sense at the shop door,” Monty says.
In addition to discrimination worries related to Title VII, Monty says employers must take the Immigration Reform and Control Act into account. When employees or supervisors resort to name calling, such as calling Hispanic workers illegals, the behavior could carry immigration consequences, since tolerating that kind of talk might signal immigration authorities that the employer employs someone not authorized to work in the U.S.
What Employers Should Do
Strong policies will help employers avoid trouble. Allison L. Feldstein, an attorney with Saul Ewing Arnstein & Lehr LLP in Philadelphia, Pennsylvania, says an employer’s antiharassment policy should state that certain types of conduct are not acceptable and can be cause for discipline up to and including termination. It’s important for employers to create and follow policies and then make sure employees are trained on them.
Feldstein points out that with so many people getting caught on camera using slurs or calling police on minorities because of unsubstantiated suspicions, it’s understandable that the same tension can spill into the workplace. She suggests that employers acknowledge what’s going on in society but also make clear that harassment and discrimination won’t be tolerated in the workplace.
Feldstein urges employers to walk employees and managers through the employer’s policies to make sure they understand acceptable conduct and their obligation to report unacceptable conduct.
Employers also need to make sure customers and vendors aren’t subjecting employees to national origin discrimination since laws also protect employees from discrimination from third parties, Feldstein says. For example, if a vendor uses slurs against a worker, the employer needs to take steps so that the vendor won’t have contact with that worker anymore. Likewise, the law is clear that a customer’s preference to not work with a particular race or national origin isn’t a defense to a discrimination claim.
Although employer policies can go a long way toward preventing legal trouble based on national origin, the wrong kind of policy can actually trigger trouble. For example, having a policy that prohibits employees from speaking any language other than English can be problematic.
Michael P. Cianfichi, of Saul Ewing Arnstein & Lehr LLP in Baltimore, Maryland, reminds employers that someone’s native language is an essential characteristic of national origin. Blanket English-only policies are going to be presumptively unlawful unless a business necessity can be shown.
The U.S. Department of Labor has regulations and guidance documents spelling out what employers can and cannot require related to language. Cianfichi says it’s acceptable for employers to require that employees be able to communicate with customers, supervisors, or coworkers and in emergency situations such as evacuations. But it’s not legally defensible to require off-duty employees talking in the break room to converse in English only.
|Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.|