National Origin Discrimination – A New Frontier?
By Ruder Ware Alumni
January 3, 2017
Immigration law is said to be the next major debate in both state legislatures and Congress. While that debate will focus on the rights of immigrants to gain legal status in our country, employers can anticipate many new issues arising under national origin discrimination.
I wrote about this topic several weeks ago, but now see it being played out in the courts. A recent lawsuit was filed in the Federal District Court of the Middle District of Pennsylvania in which an employee has accused Verizon of violating workplace discrimination laws because she was terminated from employment allegedly due to her accent. The employee received positive evaluations, but it was noted on several occasions that the Company was fearful customers would think their calls were being handled by someone in the Philippines or India because of her accent and then would assume that they would not receive proper service from the Company. The accent of the employee was noted at various times with a directive that she eliminate the accent in order to continue employment with the Company. This is just one version of how litigation may likely unfold regarding national origin discrimination.
I am also very concerned about potential harassment in the workplace based on national origin. The recent Guidance by the EEOC spells out various ways that a company can be subject to national origin discrimination claims. The Guidance updated the definition of national origin discrimination to add language that suggests treating someone differently because they have a physical, cultural or linguistic characteristic of a different national origin group would constitute discrimination. In other words, if employees or managers perceive an employee to be of a different national origin because of various characteristics, the employee will become protected and the employer can be subject to a national origin discrimination claim if differential treatment is allowed to occur.
The new EEOC Guidance also suggests that a claim could be brought against an employer if the employer is found to have discriminated against an employee because of a “relationship” with a person of a different national origin. This “relationship” concept comes from disability discrimination law and expands the area of potential claims based upon one’s known relationship or contact with someone of a different national origin. Harassing conduct based upon a connection to another person of a different national origin would again form the basis for a claim under this line of argument.
Employers need to recognize the potential for increased activity in the workplace based upon one’s national origin. Educating managers about the potential liability and the need to exercise greater control over conduct in the workplace will be important to avoid the potential for heightened activity in this area.
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The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.
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