Both federal and state laws prohibit employers from discriminating against employees or applicants on the basis of race. Racial discrimination includes discrimination based on skin color. This type of discrimination can exist where the employer and employee are of the same race or where an employer favors one employee over another employee on the basis of race.
What Is Nationality Discrimination?
The law also prohibits nationality discrimination. Nationality discrimination includes discrimination based on an employee's:
- Place of origin or birth
- Physical, cultural or linguistic characteristics, such as an accent
- Marriage to or association with person(s) of a national origin group
- Name or spouse's name associated with a national origin group
- Membership in or association with an organization identified with or seeking to promote the interests of a national origin group
- Attendance or participation in schools, churches, temples or mosques generally used by persons of a national origin group
What's the Difference between Race and National Origin?
Although national origin and race sound the same, the law treats the two separately. Race refers to a person’s physical characteristics, most typically skin color. National origin, on the other hand, refers to where a person was from, or where that person’s ancestors were from.
The confusion is easy to make since a person’s national origin is generally correlated with their race.
For instance, one may assume “White” people would be from Europe, “Asian” people would be from Asia and “Black” people would be from Africa. However, with global travel becoming easier and populations becoming more diverse, it is clear someone’s race and national origin is not as simple as skin color.
For example, in South Africa, twenty percent of the population is racially “white.” This would make their race “white” but their national origin African. Similarly, a man of Chinese ancestry living in Peru would be considered “Asian,” but their national origin would be considered “Peruvian.”
In the United States, discrimination because of race or national origin are both illegal.
Should I Claim Race or National Origin Discrimination?
It depends, and your attorney will be able to help you make that decision. Generally, issues in national origin deal with discrimination based on:
Racial discrimination does not cover any of the above. One of the most famous examples of racial harassment was co-workers putting a noose on the desk of the only African American employee in the office.
Is Citizenship Discrimination Illegal?
Mostly yes. The Immigration Reform and Control Act of 1986 (IRCA) expressly prohibits employers from discriminating on the basis of citizenship. The IRCA further prohibits employers from requiring more or different documents than for the purpose of verifying employment eligibility, or refusing to honor apparently genuine documents.
However, there are a few exceptions. The IRCA does not apply to aliens who fail to apply for naturalization within six months of being able to. The IRCA also does not apply when the alien fails to be naturalized within two years of applying, not including the time it takes the government to process the application. If the alien fails to be naturalized within two years, that person must be prepared to show that he or she is working towards naturalization.
Finally, the IRCA only covers lawful alien residents. Undocumented aliens are not afforded protection.
What Else Do Race or Nationality Discrimination Laws Prohibit?
The Civil Rights Act also prohibits discrimination in the following actions:
- Harassment - by your employer or coworkers because of your race or national origin
- Retaliation - against you for reporting discrimination, filing a lawsuit due to the discrimination or participating in an investigation
- Employment advertisements - excluding persons of a certain race or national origin or showing a preference for a particular race or nationality
- Promotions - offered or given only to persons with a certain preferred race or nationality
How Does The EEOC Respond To Cases of Discrimination?
The EEOC has a variety of methods it can use to address discrimination. If the discrimination came to the attention of the EEOC through an employee’s complaint, the EEOC, after an initial investigation, will offer to help mediate the dispute between the employee and the employer. If the mediation fails, the EEOC, the employee, or both, can bring a lawsuit against the employer. If the EEOC discovers discrimination through its own investigations, the EEOC has the power to either sanction the employer (monetary fines), or bring the employer to court.
What Steps Should I Take?
An employee that feels they have been discriminated against based on national origin has several options available. These include:
- Filing a charge of discrimination with the EEOC
- Charges should be filed within 180 days of the alleged discrimination
- In addition, the EEOC has a toll free hotline at 1-800-669-4000 that allows individuals that don’t have an EEOC office nearby to request assistance
- File a Civil Lawsuit of the EEOC does not pursue your claim after 90 days
Do I Need a Lawyer?
Pursuing a race or nationality discrimination claim is extremely complicated. Notwithstanding all of the above, the procedural laws vary depending on where and when you file your claim. An experienced employment lawyer can help you understand how the laws of your state affect your case. An employment attorney can also help you file the necessary paperwork and represent you in court.