NATIONAL ORIGIN DISCRIMINATION LAWYERS IN OCALA SERVING CENTRAL FLORIDA

National origin discrimination means that employees are discriminated against because they were born in a particular country or their ancestors came from a particular county. The scope of protection against national origin discrimination is not limited to discrimination against employees because they are “non-American” or “foreign born,” the protection from national origin discrimination also extends to discrimination against employees because their parents or ancestors are from a certain county. National origin discrimination most commonly occurs when an employer treats you differently or less favorably from other employees because of where you were born or from where your ancestors came. Employees also endure national origin discrimination based on negative stereotypes about the country where they were born or from where their ancestors came. If you are a victim of national origin discrimination in the workplace, our Ocala based national origin discrimination attorneys will fight aggressively for your rights as an employee to fair and equal treatment.

Laws Prohibiting National Origin Discrimination

Under Title VII of the Civil Rights Act of 1964 (Title VII), which is federal law, and the Florida Civil Rights Act (FCRA), which is Florida law, individuals are protected against discrimination with respect to their compensation, terms, conditions, or privileges of employment on the basis of national origin. The protection against national origin discrimination extends to all employees and applicants for employment. Title VII and the FCRA prohibit national origin discrimination with respect to all aspects of employment, including hiring, pay, work assignments, leave, transfer, promotion, discipline, and termination.

What Is An Individual’s National Origin

Because the term “national origin” is not defined in Title VII or the FCRA, uncertainty sometimes may exist as to what constitutes an individual’s national origin for purposes of discrimination protection. In Espinoza v. Farah Manufacturing Company., Inc., 414 U.S. 86 (1973), the U.S. Supreme Court defined a national origin as the “country where a person was born, or, more broadly, the country from which his or her ancestors came.” This means that individuals are protected against national origin discrimination because of where they were born or from where their ancestors came. Thus, as explained by the U.S. Ninth Circuit Court of Appeals in Pejic v. Hughes Helicopters, Inc., 840 F.2d 667 (9th Cir. 1988), the term “national origin” includes the “country of one’s ancestors.” Under Title VII and the FCRA therefore, whether individuals or their ancestors are from Cuba, Mexico, or India, they are protected from national origin discrimination on that basis.

Protection Extends To Individuals Born In U.S.

When an individual was born in the United States, his or her national origin includes the United States. Thus, an individual born in the United States is protected against national origin discrimination based on his or her American national origin. Because Title VII and the FCRA forbid employment discrimination against any individual on the basis of national origin, employers are prohibited from discriminating against job applicants or employees born in the United States in favor of foreign workers. For example, an employer cannot refuse to hire or terminate an individual born in the United States because it believes that an individual born outside of the United States is more desirable or better suited for the position. Likewise, an employer is prohibited from refusing to hire or terminating an individual of American national origin because its customers prefer persons who sound or look “foreign” in the position. As explained by the court in Thomas v. Rohner-Gehrig & Co., 582 F.Supp.2d 669 (N.D. Ill. 1984), employment discrimination “based merely on country of birth, whether that birthplace is the United States or elsewhere, contracts the purpose and intent of Title VII, as well as notions of fairness and equality.”

Scope Of Protection Against National Origin Discrimination

Protection against national origin discrimination extends beyond discrimination against individuals because of where they were born or from where their ancestors came. National origin discrimination also includes discrimination based on other factors including:

• * The employer’s belief or perception that the individual is a member of a particular national origin. For example, an employer refuses to hire an individual because the employer believes or perceives the individual to be from Puerto Rican. Similarly, an employer terminates an employer because the employer believes or perceives the individual to be Russian.
• * The individual’s marriage to or association with a particular national origin group. For example, an employer discriminates against an employee because his wife is from Iran.
• * The individual has the physical, cultural, or linguistic characteristics of a particular national origin group. In its regulations enforcing Title VII, the U.S. Equal Employment Opportunity Commission (EEOC) defines a “national origin group” or “ethnic group” as a group of people sharing a common language, culture, ancestry, race, and/or other social characteristics.

What Is An Individual’s Protected National Origin Class

When bringing an employment discrimination case under Title VII or the FCRA, the individual claiming discrimination must show that he or she is a member of a protected class. For purposes of national origin discrimination, an individual’s protected class is the country where he or she was born or the country from where his or her ancestors came. For example, the protected national origin class for an individual born in Mexico is Mexican and for an individual born in India is Indian. Likewise, the protected national origin class for an individual whose parents came from China is Chinese or whose parents came from Puerto Rico is Puerto Rican.

Workplace & Job Segregation

Under Title VII and the FCRA, employers are forbidden from segregating the workplace, segregating employees into certain positions, assigning employees job duties, or isolating employees on the basis of national origin. For example, an employer cannot make employees of Puerto Rican origin do the least desirable or most burdensome positions or job assignments. Similarly, an employer is forbidden from giving workers of Vietnamese origin a disproportionately heavy workload. Nor can employer force individuals of Indian origin to work alone and allow white employees to work in groups. Likewise, an employer is not allowed to require restaurant servers of Mexican origin to serve predominately Hispanic customers. Moreover, an employer is prohibited from assigning employees to specific neighborhoods or geographical territories by national origin. For example, an employer cannot require employees of Cuban origin to work in stores or branches with a high percentage of Hispanic customers. These principles are illustrated in Paz v. Wauconda Healthcare and Rehab Centre, 464 F.3d 659 (7th Cir. 2006), where the court found that the employer’s “less favorable treatment of Hispanic employees with regard to job duties, breaks, and shift assignments” constituted circumstantial evidence of national origin discrimination.

Discriminatory Customer Preferences

Under Title VII and the FCRA, employers are forbidden from relying on the discriminatory national origin or ethnic preferences of customers as a basis for employment decisions. In other words, employers cannot justify employment decisions on grounds they are adhering or catering to customer preferences when those preferences are discriminatory. Thus, an employer is forbidden from making employment decisions based on the perceived preference of its customers for individuals who sound or look “American” or who do not sound or look “foreign.” For example, an employer cannot refuse to allow individuals of Turkish origin to work as salespersons because its customers are uncomfortable with “foreign-sounding” or “foreign-looking” salespersons. As the U.S. Seventh Circuit Court of Appeals observed in Chaney v. Plainfield Healthcare Ctr., 612 F.2d 908 (7th Cir. 2010), “it is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently.” The Chaney court’s characterization of the prohibition against reliance on the discriminatory racial preferences of customers applies with equal force in the context of national origin discrimination.

Accent Discrimination

An individual’s manner of speaking or accent sometimes may reflect that he or she was born or grew up in a country outside of the United States. Consequently, as pointed out by the U.S. Ninth Circuit Court of Appeals in Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185 (9th Cir. 2003), an individual’s accent and national origin are “obviously inextricably intertwined in many cases.” Courts have recognized that discrimination on the basis of an individual’s accent can constitute national origin discrimination. For example, the U.S. Sixth Circuit Court of Appeals in Berke v. Ohio Dep’t of Pub. Welfare, 628 F.2d 980 (6th Cir. 1980) held that an individual’s denial of a position because of a Polish accent, “which flowed from her national origin,” was unlawful national origin discrimination. In order to lawfully make an employment decision based on an individual’s accent, courts generally require an employer to establish: (1) effective English-speaking ability is required to perform the job duties; and (2) the individual’s accent materially interferes with his or her ability to effectively communicate in English.

English-Only Rules

An issue which has arisen in the context of national origin discrimination is whether employers can require bilingual employees to speak only English at work. Most courts to squarely address the issue have upheld limited English-only rules when justified by business necessity. However, in its regulations enforcing Title VII, the U.S. Equal Employment Opportunity Commission has determined that a “rule requiring employees to speak only English at all times” presumptively violates Title VII’s prohibition against national origin discrimination. Moreover, although “an employer may require employees to speak English only where there is a legitimate reason for doing so,” as explained by the court in Lopez v. Flight Servs. & Sys., Inc., 881 F.Supp.2d 431, 431 (W.D. N.Y. 2012), employers cannot forbid employees from speaking their native language “if the reason is because of discriminatory animus toward the employee’s national origin.”

Showing A Discriminatory Motive From Different Treatment

In an employment discrimination case, as explained by the U.S. Supreme Court in Hazen Paper v. Biggins, 507 U.S. 604 (1993), “proof of a discriminatory motive is critical.” In most employment discrimination cases, a discriminatory motive is proven under the disparate treatment discrimination theory. Disparate treatment means that an employer treats an employee differently or less favorably than others because of his or her race, color, national origin, sex, pregnancy, religion, disability, or age. In the national origin discrimination context, this means that the employer treats an employee differently or less favorably from other employees who are not members of the protected national origin class.

For example, the employer terminates an employee from Puerto Rico because of a cash shortage, but the employer does not terminate employees who are not from Puerto Rico and were accused of the same or similar conduct. Likewise, the employer terminates an employee whose parents came from India because of performance deficiencies, but the employer does not employees who are not from India and have the same or even a worse performance record. Similarly, the employer terminates an employee who is from Mexico for violation of a company computer policy, but the employer does not terminate employees who are not from Mexico and have committed the same or more serious violations of company policy. As these examples are intended to illustrate the disparate treatment theory of discrimination, whether legal grounds exist for filing a national origin discrimination case would depend on the facts and circumstances in each particular case.

As the U.S. Supreme Court observed in Meritor Savings Bank, FSM v. Vinson, 477 U.S. 57 (1986), the phrase “terms, conditions, or privileges of employment” in Title VII manifests an intent by Congress “to strike at the entire spectrum of disparate treatment” in employment. Courts have consistently determined that a discriminatory motive can be proven from differences in treatment. Showing that an employer’s treatment of the employee claiming national origin discrimination differs from the treatment of employees who are not members of the protected national origin class is circumstantial evidence of the employer’s discriminatory motive.

Evidence Reflecting National Origin Discrimination

As discussed more fully in our section pertaining to discrimination, because an employer will rarely admit to a discriminatory motive when subjecting an employee to an adverse employment action, employment discrimination cases almost always must be proven by circumstantial evidence. In our section pertaining to discrimination, we identify some of the types of circumstantial evidence that can be used to prove that an individual’s race, color, national origin, sex, pregnancy, religion, age, or disability may have played a role in the challenged employment decision.

The circumstantial evidence identified in our section pertaining to discrimination applies with equal force in the context of national origin discrimination claims. However, some forms of circumstantial evidence arise more often or have heightened significance in the context of national origin discrimination. In the national origin discrimination context, the types of circumstantial evidence that also can be used to prove that an individual’s national origin may have played an impermissible role in the challenged employment decision include:

• * In a termination case, the employer replaces the employee claiming national origin discrimination with a person outside of the protected national origin class. In a failure to hire or promote case, the employer selects a person outside of the protected national origin class.
• * Remarks by supervisors or managers reflecting a desire to satisfy the national origin or ethnic preferences of customers.
• * The employer segregates jobs or job assignments by national origin.
• * Mocking the employee’s accent, manner of speaking, or language skills.
• * The employer customarily makes the employee claiming national origin discrimination to perform unwanted or burdensome job duties. Job duties that other employees seek to avoid doing and job duties other employees outside of the protected national origin class almost never do.
• * Derogatory national origin or ethnic based remarks, slurs, insults, or jokes by co- employees, supervisors, or managers.
• * The employer’s failure to end derogatory national origin or ethnic based remarks, slurs, insults, or jokes by employees despite a supervisor’s or manager’s knowledge of such comments. This shows that management condoned the discriminatory comments.
• * Evidence that the employer has discriminated against other employees who members of the protected national origin class. For example, evidence that the employer has discriminated against other employees of Puerto Rican origin in hiring, pay, promotion, or termination can be used as circumstantial evidence to support the claim by an employee of Puerto Rican origin that he or she was fired because of national origin.
• * Evidence that the employer has discriminated against customers who members of the protected national origin class.
  This list is not exclusive and there are no hard and fast rules as to what type of evidence is needed in order to prove a national origin discrimination claim. However, if any of these things have happened to you or occurred in the workplace, you may have suffered national origin discrimination depending on the facts and circumstances in your particular case.

Discriminatory Comments Reflecting National Origin Discrimination

Although not required to prove national origin discrimination, derogatory national origin or ethnic based remarks, slurs, insults, or jokes by supervisors or managers are the most powerful evidence of national origin discrimination. The derogatory national origin or ethnic based remarks, slurs, insults, or jokes can be about the employee claiming national origin discrimination or any person who is a member of the employee’s protected national origin class, including other employees and customers. The types of remarks that can be used in proving that an individual’s national origin may have played an impermissible role in the challenged employment decision include:

• * National origin or ethnic slurs made directly to the employee, about the employee outside of his or her presence, or about any person in the employee’s protected national origin class.
• * Remarks reflecting a bias, hostility, or negative attitude towards the employee because of his or her national origin.
• * Remarks reflecting a bias, hostility, or negative attitude towards other employees or individuals who are members of the protected national origin class.
• * Remarks reflecting national origin or ethnic stereotyping, such as referring to employees who are members of the protected national origin class as “one of them,” “another one,” “all of you,” “you guys,” or “you people.”

National Origin & Citizenship Status Under Title VII

In Espinoza v. Farah Manufacturing Company., Inc., 414 U.S. 86 (1973), Espinoza, a lawfully admitted resident alien who was a Mexican citizen, was denied employment as a seamstress because of the potential employer’s policy of hiring only United States citizens. The issue before the U.S. Supreme Court was whether a refusal to hire an individual because of lack of United States citizenship constitutes discrimination on the basis of national origin under Title VII. The Court held that Title VII does not protect against discrimination on the basis of citizenship status and an employer’s refusal to hire an individual because of lack of United States citizenship does not constitute national origin discrimination in violation of Title VII. In fact, the Court expressly stated that “nothing” in Title VII “makes it illegal to discriminate on the basis of citizenship or alienage.” Thus, national origin discrimination under Title VII does not encompass discrimination solely based on an individual’s citizenship status.

However, the Espinoza Court recognized that “there may be many situations where discrimination on the basis of citizenship would have the effect of discriminating on the basis of national origin.” For example, the Court explained, “an employer might use a citizenship test as a pretext to disguise what is in fact national origin discrimination” or “a citizenship requirement might be but one part of a wider scheme of unlawful national origin discrimination.” Thus, the Espinoza Court also held that Title VII “prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin.”

National Origin & Citizenship Status Under IRCA

The Immigration Reform and Control Act of 1986 (IRCA) addressed the lack of protection against discrimination on the basis of citizenship status created by Espinoza. IRCA forbids employers from hiring, recruiting, or referring for a fee any alien unauthorized to work in the United States. However, because Congress was concerned that employers might discriminate against individuals who sound or look “foreign” due to civil and criminal penalties under IRCA for employing unauthorized aliens, IRCA also prohibits employment discrimination on the basis of national origin or citizenship status. In particular, IRCA makes it an unlawful immigration-related practice for an employer to discriminate against any individual with respect to hiring, recruitment, referral, or discharge on the basis of national origin or citizenship status.

However, IRCA, unlike other federal employment discrimination statutes, does not cover all aspects of employment. Rather, IRCA only prohibits national origin and citizenship status discrimination with respect to hiring, recruitment, referral, and discharge. In contrast, Title VII prohibits national origin discrimination with respect to all aspects of employment, including hiring, pay, work assignment, transfer, promotion, discipline, and discharge. Moreover, an employer who employs more than 14 individuals is excluded from IRCA coverage with respect to national origin discrimination claims. Claims of national origin discrimination against employers who employ 15 or more employees are within the scope of Title VII. IRCA also does not provide for private causes of action in federal court and judicial review is only available after all administrative remedies have been exhausted. In order to bring claims of employment discrimination, IRCA first requires the claimant to file a charge of discrimination with the U.S. Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices.

National Origin Harassment

As discussed more extensively in our section regarding hostile work environment harassment, Title VII and the FCRA also protect employees against harassment on the basis of national origin. National origin harassment is a form of national origin discrimination. Prohibited national origin harassment includes derogatory national origin or ethnic based remarks, insults, or jokes, physical threats and violence, and disparaging comments about the employee’s place of birth or country of origin. National origin harassment which is sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create a hostile working environment violates Title VII and the FCRA. In many cases, an employee will experience a hostile work environment on the basis of national origin and suffer an adverse employment action, such as reduction in pay or discharge, on the basis of national origin. In such cases, an employee has a claim for national origin harassment based on the hostile work environment and a claim for national origin discrimination based on the adverse employment action.

Protection Against Retaliation

As discussed more fully in our section pertaining to retaliation, employees are protected against retaliation when they complain about national origin discrimination or harassment in the workplace. Under Title VII and the FCRA, employers are forbidden from subjecting an employee to an adverse employment action in retaliation for complaining about national origin discrimination or harassment. Prohibited retaliatory adverse employment actions include reduction in pay or hours, demotion, denial of promotion, suspension, and termination.

Employment Law Blog

We offer more information about national origin discrimination and harassment in our employment law blog.

Contact Us Today For A Free Initial Consultation

If you are experiencing or have experienced national origin discrimination in the workplace, please contact us for a free initial consultation with our Central Florida national origin discrimination attorneys. You will receive personalized and individual attention from our employment law attorneys. We have substantial experience litigating national origin discrimination cases in state and federal court. Our employee rights law firm takes national origin discrimination cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Based in Ocala, Florida and representing employees throughout Central Florida, we are ready to take your national origin discrimination case and fight for your employee rights.