National Origin Discrimination: Whom Does It Affect?
Although not as well understood as discrimination based on race, age or disability, national origin discrimination is becoming more prevalent in the judicial system. This form of discrimination is based on a person’s country of origin for themselves or ancestors, and related language, culture, customs and even accents. Although a separate form of discrimination from that based on race, these two forms of discrimination can be interlinked. As will be discussed, the issue of national origin discrimination is a global issue and not one that is restricted to the United States. There is also evidence of origin discrimination within the same race and ethnic groups. Specific times and situations where it is legal to discriminate based on national origin will be discussed.
Basis of National Origin Discrimination
Confusion often surrounds discrimination based on national origin due to the belief this is the same as racial discrimination. Where racial discrimination is based on whether a person is Black, Asian or Latino, national origin is based on a person’s ancestry, culture, customs and language (Smith, 2009). Although a person’s race may also reflect national origin i.e. Latino from Mexico, the discrimination has to be based on the national origin aspect and not their race to substantiate an issue of national origin discrimination. Therefore, the discrimination has to be tied to an aspect of being from Mexico, not being Latino. Such an aspect might be how they speak (limited English or no English), how they dress or how they might greet someone based on how it is done in their nation of origin.
If a person files a charge of discrimination based on national origin, they must meet the following criteria to establish a prima facie case of discrimination:
- He/she is a member of a protected class (state national origin)
- He/she is qualified for the position for which they applied and/or was employed.
- Employer made an employment decision against this employee or applicant.
- The position was filled by someone who was not a member of the protected class (Bennett-Alexander & Hartman, 2012).
As a basis of employment, there have been three requirements that usually influence discrimination based on national origin: 1) height and weight, 2) English fluency and 3) training and education (Ornati, 1981). Although these requirements have been addressed by defendants as bona fide occupational qualifications (BFOQ), the courts have ruled that these requirements are not required to perform most jobs. They do, however, have a disparate impact on persons of Latino and Asian national origins since these individuals tend to be smaller in build and weight than non-protected groups (Smith, 2009).
Same Race Discrimination Based on National Origin
When national origin discrimination is discussed, most think of white Americans discriminating against Latinos or Asians. Although this is typical, research has shown that discrimination can exist among the same ethnic group. According to Monforti and Sanchez (2010), discrimination of Latinos by other Latinos is based on the same aspects as it would be between two different nationalities: language, customs and knowledge or assimilation into this country. The study also indicates that discrimination varies from nationality to nationality among Hispanics and the perceptions of discrimination are varied among different Latino groups.
The discrimination within the 22 different Latino communities can be viewed as socio- economic and politically based on origin. Mexican-Americans view immigrants from Mexico as negative stereotypes of all Mexicans: they compete for jobs and wages and they increase discrimination views by others. (Monforti & Sanchez, 2010). From the political standpoint, the immigration status of Cuban and Puerto Ricans is completely different from that of Mexican, Dominican and Central/South Americans. Since Puerto Rico is a United States territory, Puerto Ricans are born American citizens and Cubans can apply for a Green Card after a year in the United States due to the Cuban Adjustment Act (Monforti & Sanchez, 2010).
Language issues can also be a source of discrimination with Mexican-Americans resenting non-English speaking immigrants, while Spanish speaking individuals may discriminate against those that cannot speak Spanish (Monforti & Sanchez, 2010). According to Monforti & Sanchez (2010), the less English spoken by a Latino, the more they feel discriminated against by their own ethnic group.
Although no case law reflects litigation between Hispanics for discrimination for national origin, the study reflects some compelling evidence of such cases in the future. As described by Smith (2009), the Estenos case was reversed on appeal even though the majority of employees were Hispanic in the credit union he was suing for discrimination of national origin. Estenos was fired for limited English speaking skills after eight months and positive performance evaluations (Smith, 2009). Although there were other Spanish speaking people working in the credit union, Estenos filed for discrimination based on being from Peru.
Treaties and Title VII
National origin discrimination applies not only in the United States, but also overseas with U.S. citizens working for American companies overseas. Depending on the country and if the company is an American contractor or a Federal Government entity, Title VII might be over ruled by a Treaty between the United States and the host country. If the person is American and is discriminated against by an American company/entity, he or she may still have the right to sue under Title VII, regardless of any Treaty with the host country.
As stated by Cherian (1990) in the case of Chester J. Cole v. The Army, an American citizen filed a complaint of national origin discrimination against the U.S. Army for not being hired in Germany because he was an American. The Army’s defense was that because of a treaty with Germany, they could not hire an American living in Germany. Commissioner Cherian and the other board members of the United States EEOC rejected this defense and remanded the case for investigation.
A similar case involved American women married to Turkish nationals working for an American defense contractor who were fired and rehired under the guise of a treaty with Turkey. These women were rehired but under the less favorable terms of the treaty. Their original pay was in U.S. dollars but under the new terms of the treaty, they were now paid in Turkish currency. This change in currency was a financial loss for the plaintiffs. Again, the defense contractor cited the treaty with Turkey as a defense and again this was overruled by the EEOC; plus the EEOC General Counsel took legal action on behalf of the plaintiffs (Cherian, 1990).
Some treaties that the United States has with other countries actually allow national origin discrimination as a BFOQ. Fealy & Saban (1995) point out that the Friendship, Commerce and Navigation (FCN) Treaties with countries such as Japan, allow these countries to place personnel from their country in management positions within the United States. Not only have these treaties protected parent companies from other countries, but may also apply to subsidiaries as well.
The question of subsidiaries afforded protection under FCN treaties has been addressed in the courts. For example, the Second Circuit court in Sumitomo v. Avigliano upheld that the subsidiary can be protected by FCN treaty and not be in violation of Title VII discrimination because the case was based on citizenship and not national origin. The Supreme Court reversed this decision stating that only the foreign company operating in the U.S. and not its subsidiary can assert FCN protection. Then the Seventh Circuit addressed the question again in Fortino v. Quasar but allowed the FCN defense since the parent company of Quasar, a subsidiary of a Japanese firm, dictated the employment and business operations of Quasar. In this instance, Quasar was operated as an extension of the parent company in Japan and FCN protection applied (Fealy & Saban, 1995).
The Second Circuit has limited the BFOQ of the FCN defense by requiring the parent company to prove the necessity. Such necessary requirements include: 1) Linguistic and cultural skills, 2) knowledge of the products, markets, customs and business practices of that country, 3) familiarity with the personnel and workings of parent company and 4) accessibility to persons with whom the branch or company does business (Fealy & Saban, 1995). These limitations by the Second Circuit made it necessary for a company to show that foreign management is a legitimate BFOQ. Division among the Circuit courts in regards to FCN treaties is evident in case law, with the Second Circuit being more difficult for an employer to claim a FCN defense.
Although difficult, it is not impossible for a company to claim FCN protection and avoid Title VII discrimination charges. A foreign company can take the following steps to claim FCN protection and avoid discrimination charges:
- Subsidiaries do not set the employment terms or conditions of employment for foreign employees.
- Limit the time foreign employees are in the United States
- Job descriptions reflect the need for the foreign employee in hired position
- Limit favoritism of or related to foreign employers home country
- Rotate American employees to the Head Office.
- Adopt and consistently apply a written foreign employee compensation policy that ties benefits to the employee residence location and not their national origin.
- Indentify justification for Foreign Service allowances and incentives.
- Document distinctions between salary and extra foreign service allowances and incentives
- Train managers to avoid making comments that the company favors employees from the company’s home country. (Fealy & Saban, 1995).
Title VII still applies to foreign companies that operate in the United States but by following the above steps, a company can assert a successful Treaty Defense to limit claims of discrimination based on national origin.
Courts and National Origin Discrimination
National origin discrimination cases have figured prominently in recent cases involving mortgage lending by companies such as Countrywide, C&F Mortgage, Sun Trust and Wells Fargo. These investigations were not initiated by the EEOC, but by the Civil Rights Division of the Department of Justice. These lenders were found to have placed applicants of African-American and Hispanic backgrounds into subprime mortgages while placing whites with similar credit profiles into prime rate mortgages (Naveja, Noonan & Ropiequet, 2013).
National origin discrimination has also had an effect on the U.S. jury system. During jury selection prosecutors and defense attorneys can challenge potential jury members and have them removed from the process if the juror shows bias or incompetence (Hurwitz, 2008). The attorneys also have a limited number of peremptory challenges that allow them to remove a juror for no reason or cause. The only restriction to the use of peremptory challenges is that they cannot be used to exclude a juror based on race; this is called the Batson rule. Originally used to protect jurors from being discriminated against based on race, the case of Watson v. Ricks extended this rule to prohibit peremptory challenges to be used based on national origin.
The case involved a West Indian Jamaican, Mark Watson, who was convicted of several felonies in New York after the prosecutor used peremptory challenges to remove all five potential jurors that were born in the West Indian countries of Jamaica and Trinidad (Hurwitz, 2008). The Batson rule was raised by the defendant at trial and denied by the judge because the defendant had not made a prima facie case of racial discrimination, so the Batson rule did not apply.
After being denied appeals, Watson filed a writ of habeas corpus with federal district court in the Southern District of New York, which granted the writ. Judge Francis stated that national origin is subject to strict judicial scrutiny and that peremptory challenges should not be allowed to remove potential jurors based on national origin (Hurwitz, 2008). This decision by Judge Francis allowed Watson to receive a hearing to plead his case for a possible new trial. This case and others that followed have shown that national origin discrimination is even found in the judicial system.
The majority of national origin discrimination is based in the field of employment, but this discrimination can also influence other areas of life and business. As discussed above, national origin discrimination is found in financing, the judicial system, and in business, both foreign and domestic. Any nationality can experience discrimination regardless of country or culture. Americans discriminate against people that do not speak, act or have the same customs as a “typical” American. This includes Americans discriminating against other Americans based solely on how they speak, their customs, dress or other ethnical aspect that may contradict what is expected of other Americans.
Although a person that is being discriminated against due to national origin may also be a member of a protected race, such as black, Hispanic or Asian, it is not a purely racial form of discrimination. Confusion arises due to the belief that only persons of these ethnic backgrounds or who have ancestry from a foreign country are the ones to experience this type of discrimination. From the research and cases stated above, it is clear that this is not necessarily true. In Germany, an American was discriminated against for just being an American. Black, white, Asian, Latino had nothing to do with not being hired, but simply being an American in Germany was the reason. So no matter the race, a person can be discriminated against just by where they or their ancestors are from.
The research and cases discussed show that discrimination based on national origin affects everyone. Whether black, white, Latino or Asian, this discrimination can and does include all races as well as genders. This form of discrimination is not limited to the United States but is a global issue. As time progresses and immigration issues become subject of more laws, national origin discrimination will become more prevalent in the judicial systems of the United States and other countries as well.
Bennett-Alexander, D. & Hartman, L. (2012). National origin discrimination. Daryl Bruflodt, Employment Law for Business 7th Ed. (pp. 299-335) New York: McGraw-Hill Irwin
Cherian, J. (1990). National origin discrimination affecting civilian employees overseas. Labor Law Journal, 41(7), 387-393.
Fealy, E. A., & Saban, C. R. (1995, Winter). Making the most of the “FCN Treaty” and related national origin defenses. Employee Relations Law Journal, 21(3), 149-160. Retrieved from http://0-go.galegroup.com.athens.iii.com/ps/i.do?id=GALE%7CA17861930&v =2.1&u= athe65862&it=r&p=LT&sw=w
Hurwitz, M. S. (2008). Peremptory challenges and national origin: Watson v. ricks. Justice System Journal, 29(2), 210-VI. Retrieved from http://search.proquest.com.athens.iii.com/ docview/194776766?accountid=8411
Monforti, J. L., & Sanchez, G. R. (2010). The politics of perception: An investigation of the presence and sources of perceptions of internal discrimination among Latinos. Social Science Quarterly (Wiley-Blackwell), 91(1), 245-265. doi:10.1111/j.1540-6237.2010.00691.x
Naveja, C. S., Noonan, L. J., & Ropiequet, J. L., (2013, February). Fair lending developments: Enforcement intensifies, class actions diminish. Business Lawyer, 68(2), 637+. Retrieved from http://0-go.galegroup.com.athens.iii.com/ps/i.do?id=GALE%7CA328656796&v=2.1&u=athe65862&it=r&p=LT&sw=w
Ornati, O. A. (1981). Arbitrators and national origin discrimination. Arbitration Journal, 36(2), 30-34.
Smith, B. L. (2009, April). Tongue-ties: National origin discrimination suits are making waves – and law. ABA Journal, 95(4), 17+. Retrieved from http://0-go.galegroup.com.athens. iii.com/ps/i.do?id=GALE%7CA201030803&v= 2.1&u= athe65862&it=r&p=LT&sw=w
|Dale Lenahan was in retail management for over 20 years and worked for several retailers in several states before settling in Huntsville. He earned his Associates degree in Business Administration from American Intercontinental University in 2010 and enrolled at Calhoun Community College and Athens State in 2011. He originally enrolled with a Major in Business Management with a Minor in Information Systems management, but added a second major of Human Resource Management. He is a student member of Society of Human Resource Management (SHRM), American Society of Training and Development (ASTD) and Who’s Who among American College Students. He plans on acquiring a Masters in Human Resource management after completing his Bachelors at Athens State.|