One of the greatest benefits of our nation’s growth is the diversity that comes with growth. It is undisputable that more and more individuals are calling America home. As a result, the workplace is becoming more diverse and more employees are speaking other languages than English. According to the Center for Immigration Studies (“CIS”), more than 67.3 million residents in the United States now speak a language other English at home. CIS found that this number more than doubled since the 1990s. Texas ranks among the leading states that has a large share of residents speaking a foreign language at home. I expect these numbers to continue to increase exponentially in the decades to come.
Discrimination at work is one of the hottest topics of employment law. There are a number of federal and state laws that prohibit discrimination on the basis of specific protected characteristics. Almost all of these laws protect not only employees, but also applicants for employment and sometimes even former employees who are retaliated against after their employment ends.
The Immigration and Nationality Act (the Act) provides U.S. citizens, permanent residents, asylum seekers, and refugees protection against employment discrimination based on their immigration status. The Act applies if an employer has more than four employees.
Discrimination under the Act occurs when an employer treats a person differently based on their immigration or citizenship status. The law requires Texas employers treat people equally when they announce a position, solicit applications, conduct interviews, make job offers, hire an individual, or terminate employment. Moreover, employers cannot retaliate against an employee if they file a claim of discrimination, participate in an investigation, or assert their rights under any anti-discrimination law. However, this rule does not apply to permanent residents who fail to file for naturalization within six months of eligibility.
If a prospective or current employee suffers any type of adverse employment action based on their immigration status, their employer may face liability. Some common forms of discrimination based on immigration status are when an employer only hires U.S. citizens, if an employer does not want to hire a person because of the paperwork involved in hiring a temporary resident, or demanding to see specific un-required documents.
As we’ve discussed in previous posts, federal discrimination laws prohibit employers from engaging in discriminatory conduct during employment. This also includes the pre-employment interview process. Employers cannot make a hiring decision based on a person’s age, race, religion, sex, national origin, or disability.
Sometimes, employers trying to gather as much information as possible about an applicant will rely on preconceived notions and stereotypes in doing so.
A few of the problematic questions employers routinely ask are:
- whether an applicant is married, engaged, single, or divorced;
- whether an applicant has any children and, if so, how old they are;
- whether an applicant plans on becoming pregnant;
- what an applicant’s spouse or boyfriend does for a living;
- whether an applicant attends religious services and, if so, what days; and
- the origins of an applicant’s last name.
Those who have immigrated to the United States have played a pivotal role in our nation’s success. Indeed, the goal of encouraging immigrants to assist in growing the United States’ economy was one of the reasons that Congress enacted the Civil Rights Act of 1964, specifically Title VII. Similarly, the Equal Employment Opportunity Commission (EEOC) was enacted as an omnibus bill designed to address discrimination beyond employment, focusing on voting, education, and public accommodations.The purview of Title VII and the EEOC intersect in many ways. Most recently, the EEOC has issued clarification regarding the scope of national origin discrimination when accent discrimination is alleged.
Title VII National Origin Discrimination
Title VII prohibits qualifying employers from discriminating against an individual because of their race, color, religion, sex, or national origin. Discrimination can take many forms, including failure to interview or hire, disparate compensation or benefits, or terminating an employee because of those enumerated characteristics. A Texas national origin discrimination claim can be appropriate in these situations.
Both Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act of 1964 guard against workplace discrimination that occurs on the basis of an employee’s national origin. National origin is a characteristic that refers to one’s birthplace, ancestry, culture, or linguistic characteristics. Often, national origin discrimination overlaps with race, religion, or color, which are also protected characteristics. For example, discrimination against those from Middle Eastern countries can be motivated by both national origin and the assumption that they subscribe to particular religious practices. Accordingly, a complaint we file on your behalf may assert multiple causes of action or grounds of discrimination.
Often, one’s national origin is revealed through accent. For example, if you grew up in Iran and immigrated to the United States as a young adult, you may still have traces of an Iranian accent. Similarly, if you grew up in Mexico and lived mostly among Mexican immigrants after immigrating, you may speak English with an accent.
You cannot be treated differently in a workplace due to your accent or due to a spouse’s or an associate’s accent. National origin discrimination occurs if an employer makes an adverse employment decision based on your accent. For example, an employer is not supposed to refuse to allow you to work in a customer-facing position due to your accent because he wants to create a more wholesome American image for his restaurant. Similarly, an employer is not supposed to turn down a job applicant for a teaching job because he has an Indian accent.