National Origin Discrimination

Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act (PHRA) prohibit discrimination based upon an employee’s national origin. It is unlawful for an employer to fail or refuse to hire or to discharge any employee, or otherwise to discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment, because of the employee’s national origin. National origin discrimination can occur in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, or when a decision in any other term or condition of employment is based upon an employee’s national origin.

National origin discrimination involves treating employees in the United States of America unfavorably because the employee is originally from another country, because of an employee’s ethnicity or accent, or even where the employee appears to be of a certain ethnic background, even if the employee is not. National origin discrimination also can involve treating employees unfavorably because the employee is associated with or married to a person of a certain national origin, or when the employee is connected with a group or organization associated with a particular national origin. Discrimination based upon national origin can occur even in a situation when the employee and supervisor or manager of the employer who discriminate against the employee is of the same national origin. An employer also cannot base any employment decision upon an employee’s foreign accent, unless the accent is proven to seriously interfere with the job performance of the employee.

National Origin Discrimination – Standard of Proof

To establish what the law calls a prima facie case of national origin discrimination an employee must demonstrate that (1) the employee belongs to a protected class (i.e., the employee is originally from another country); (2) the employee was qualified for the job; (3) the employee was subject to an adverse employment action (i.e., termination of employment or demotion to another job) despite being qualified; and (4) the action took place under circumstances that raise an inference of discriminatory action, such as when a similarly situated person not of the protected class (i.e., a person born in the United States) is treated more favorably. While the employee need not show a precise kind of disparate treatment by comparing the employee to a similarly situated employee from outside the employee’s protected class, the employee must establish some causal nexus between the employee’s national origin and the adverse employment decision. If the employee establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse employment decision (i.e., work performance). If the employer meets its burden, the employee then must offer evidence that is sufficient to allow a reasonable finder of fact to find by a preponderance of the evidence that the employer’s proffered reason is false or pretextual.

National Origin – Hostile Work Environment

It is illegal to subject an employee to a hostile work environment based upon an employee’s national origin. Harassment based upon national origin can include offensive or derogatory remarks about a person’s national origin, accent or ethnicity. Harassment based upon an employee’s national origin is illegal when it is so frequent or severe that it creates a hostile or offensive work environment, when it results in an adverse employment decision such as the employee being fired or demoted based upon national origin. In the context of national origin discrimination, the harasser can be the employee’s supervisor, another supervisor or manager, a coworker, or even a client or customer of the employer. Analysis of hostile work environment claims requires an assessment of the totality of the circumstances. To prove a hostile work environment claim based upon national origin, an employee must establish what the law calls a prima facie case of a hostile work environment claim; an employee must meet a five part test.

1. The employee suffered intentional discrimination because of national origin;
2. The discrimination was severe or pervasive considering the totality of the circumstances. This can be demonstrated by showing the frequency of the discriminatory conduct, its severity, whether the conduct was physically threatening or humiliating, and whether the conduct unreasonably interferes with an employee’s work performance;
3. The discrimination detrimentally affected the employee;
4. The discrimination would detrimentally affect a reasonable person in that position;
5. Existence of “respondeat superior liability” – circumstances which would make the employer responsible for the conduct of its employees (such as the offending party being a member of management).

Citizenship and Immigration Status Discrimination

A federal law, The Immigration Reform and Control Act of 1986 (IRCA) prohibits an employer from discriminating against an employee or employment applicant based upon an individual’s citizenship or immigration status with respect to hiring or firing an employee. Employers may not have policies in which they only hire United States citizens or lawful permanent residents unless there is a specific law, regulation or government contract which permits citizenship or immigration status to be a job criterion.

Employers may also not refuse to accept lawful documentation that establishes the eligibility of an employee, or demand additional documentation beyond what is legally required, when verifying the employment eligibility of a prospective employee.

The Immigration Reform and Control Act (IRCA) also prohibits retaliation against employees for asserting their rights, such as filing a charge of discrimination based upon citizenship or immigration status, or assisting in an investigation or proceeding involving allegations of discrimination based upon citizenship or immigration status. Employers cannot intimidate, threaten, coerce, or retaliate against any individual because the individual intends to file or has filed a charge or a complaint. Under IRCA an employee may have a valid retaliation claim even where the employee’s underlying discrimination claim was not actionable.

Employers who violate IRCA are subject to fines, back pay (lost wages) and reinstatement of the employee to the job, costs and reasonable attorneys’ fees.

We represent employees who are discriminated against based upon their national origin. Call Abramson Employment Law at 267-470-4742 or contact us online to discuss your legal options for any claim for national origin, citizenship or immigration status discrimination.