In the fourth part of this blog series, we will discuss discrimination in the workplace based on national origin. Although national origin is similar to race discrimination, it is not the same. National origin discrimination means treating someone less favorably because they are from a certain country or part of the world. This can be based on ethnicity, an accent, or simply the appearance of ethnicity even if the person is not from a perceived ethnic background. Discrimination based on an employee’s association or relationship with someone of a certain ethnic background or discrimination at the hands of someone of the same national origin are both actionable as well.
Unlawful Harassment Based on National Origin
Harassing an employee because of his or her national origin or ethnicity is illegal. Harassment includes making derogatory remarks about an individual’s ethnicity, national origin, or accent. It does not include isolated incidents of simply teasing someone or making offhand comments that are not serious. Instead, the harassment must be sufficiently severe or frequent to create a hostile work environment. It is also considered harassment when it results in the employee being terminated or some other adverse employment decision being taken against that employee. Harassment can come from a supervisor, a co-worker, or clients and customers.
“English-Only” Policies in the Workplace
Workplace policies that have a negative impact on employees of a certain ethnicity or national origin may be discriminatory and, therefore, illegal. This may be true even when the policy is applied equally to everyone but actually has more of an impact on certain employees. Another important fact to consider is whether the policy in question is actually job-related and necessary to the business and its successful operation.
One very common issue that arises is the legality of an “English-only” policy. The only time that such a policy is allowed is when English fluency is required in order for an employee to perform their job effectively. For instance, an employee who works in customer service would need to be able to speak English sufficiently to perform their jobs satisfactorily. Additionally, employment decisions cannot be based on the fact that an employee’s foreign accent unless it seriously affects job performance.
The Immigration Reform and Control Act
The Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful for employers to discriminate in hiring, terminating, or recruiting or referring individuals for a fee, based on an individual's citizenship or immigration status. It is also against the law for employers to only hire U.S. citizens or lawful permanent residents unless the law or a government contract requires them to do so.
Also related is the fact that employers cannot refuse to accept legal documentation that establishes the eligibility of an employee to work. Nor can they require additional documentation beyond what the law requires. It is up to the employee to decide which acceptable documentation to provide in order to establish employment eligibility.
If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel Allen & Sinor . You can contact us either online or by calling us at (205) 319-9724. We are here to serve you!