It may come as no surprise that employers aren't allowed to discriminate among workers on the basis of national origin. Thanks to Title VII of the Civil Rights Act of 1964, that's been the law for the last half a century. However, it seems the finer points may be unfamiliar. The EEOC reports that national origin complaints have sharply climbed by 76 percent between 1997 and 2011.
Below we offer a primer to get you up to speed on the most important info related to national origin discrimination, so you can protect yourself and your business from unexpected lawsuits.
Q. What specifically does the law prohibit?
Under Title VII, it's illegal to treat a worker or job-seeker differently because of their ancestry, their culture or (this may be a surprise) their accent. The way a worker talks cannot factor into employment decisions unless it substantially interferes with their ability to do the job.
Q. What other laws may apply?
The Immigration and Nationality Act prevents employers from requesting "more or different documents than are required to verify employment eligibility and identity" based on a worker's ethnic traits, said Workplace Fairness, including their accent.
Q. What behavior qualifies as discrimination?
Discrimination can include paying a worker less because of their national origin, or choosing not to hire a qualified candidate because of the way they dress or talk. Also, teasing a worker about their accent can contribute to a hostile work environment, which is another form of discrimination.
Q. What are some examples of national origin discrimination?
Nolo gave a few useful examples in this article, quoted below:
- An airline won’t allow anyone who appears to be from the Middle East to work in any position that involves dealing with passengers.
- A hardware store that serves a predominantly white neighborhood refuses to promote an employee who has adopted a traditional African style of dress.
- A Chinese restaurant hires only people with Asian features and surnames to wait on customers.
- An automotive supply store disciplines Latino employees more severely than white employees for unexcused absences and tardiness.
Q. When does it make sense to consider a candidate's accent when making hiring decisions?
NOLO says that fluency and English-only requirements may be legal if they are required to perform the job. Of course, this isn’t a subjective call. You must have a documented job description and proof that an accent could materially interfere with job performance. Accent rules tend to be carefully scrutinized by the courts. For instance, here’s an example of a Filipino nurse who sued and won $975,000.
Q. What's the bottom line?
Hiring and salary decisions have to be based on the requirements of the job and the qualifications of the worker. If a particular trait doesn’t interfere with the job, it can’t be used to rule out potential workers or to pay existing workers less. The way workers are treated must be based on their experience and qualifications – not on their personal features.
For more information, see what the U.S. Equal Employment Opportunity Commission has to say on the subject. Also, reach out to our HR Consulting Services for assistance with difficult employment issues. Finally, make sure your company is protected by Employment Practices Liability Insurance. Even employers with great intentions make costly mistakes!