Race and National Origin Discrimination In The American Workplace
Discrimination based on race and national origin are both prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”), which states in part: “It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .” Title VII also establishes the Equal Employment Opportunity Commission (“EEOC”), a federal agency charged with enforcing the provisions of Title VII. The EEOC has 53 offices in the United States and conducts investigations into allegations of discrimination in violation of Title VII, with authority to file lawsuits in certain cases.
What is race and national origin discrimination?
The EEOC defines race discrimination in an employment context as “treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features).”
In contrast, the EEOC defines national origin discrimination as “treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).” Unlike race discrimination, national origin is very broad, and “embrace[s] a broader class of people, and that the term is better understood by reference to certain traits or characteristics that can be linked to one’s place of origin, as opposed to a specific country or nation.” This can include the employee’s appearance, behavior, and other traits from an objective perspective, and is not limited to the employee’s actual country of origin or physical characteristics. National origin cases are increasing because of the seemingly less stringent requirements on the part of plaintiff employees. Additionally, the disparate impact required to prove national origin discrimination could extend to protections involving religion. For example, the Supreme Court recently held that a retail fashion employer’s refusal to hire a job applicant because she wore a hijab, or head scarf, constituted unlawful discrimination based on national origin. The employer’s dress policy for customer facing roles, although not discriminatory on its face, failed to accommodate the religious practices of particular job applicants, and was therefore held to be unlawful.
Both types of discrimination apply to most employers with 15 or more employees, and apply to a wide range of work situations.
How to determine whether race or national origin discrimination has occurred?
Without direct evidence of race or national origin discrimination, courts employ the four-pronged burden-shifting analysis first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Both race and national origin employment discrimination lawsuits typically require alleging and proving that the employee:
(1) is in a protected class;
(2) adequately performed an employment function or qualified for a job;
(3) was subjected to an adverse action; and
(4) the circumstances give rise to an inference of discrimination.
If these elements are established, the employer must then prove that the allegedly discriminatory action was legitimate and, in fact, nondiscriminatory. If the employer satisfies this burden, the burden of proof shifts back to the employee to establish that the employer’s action was a “mere pretext” for discrimination in violation of Title VII. Although courts do not interpret the initial prima facie burden strictly, it is historically very difficult for plaintiffs to establish the third McDonnell element of mere pretext, since it can be impossible to find evidence of this type of claim.
What procedural requirements must a plaintiff follow?
To sue in court, plaintiffs must follow strict procedural requirements. First, the employee must file a complaint through the EEOC within 45 days “of the date of the matter alleged to be discriminatory.” Although this might seem straightforward, it is often unclear what event constitutes the “matter” and starts the ticking of the clock. In one example, the U.S. Supreme Court recently held that, in the context of a constructive discharge claim where the employee resigns, the “matter” is the employee’s resignation, not before, because there is no discharge until the employment relationship has ended.
Despite the existence of substantial case law on race and national origin discrimination, courts continue to struggle to interpret and apply applicable laws on these topics as the modern American workplace becomes more complex and the lines between legitimate business needs and employee rights continue to blur. In all aspects of local, state, and federal government, legislation will affect the development of judicial precedent. The addition of new statutes at the state level will ensure that this area of legal practice will evolve at both the state and federal levels and keep civil rights attorneys busy for years to come.
 Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352), as amended, 42 U.S.C. 2000e.
 Espinoza v. Farah Mfg. Co., Inc. 94 S. Ct. 334 (1973).
 Bennun v. Rutgers State Univ., 941 F.2d 154, 173 (3d Cir.1991)
 EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015)
 Fisher v. Vassar College, 114 F.3d 1332, 1344 (2d Cir.1997); Hannoon v. Fawn Eng’g Co., 324 F.3d 1041, 1046 (8th Cir.2003).
 See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993)
 Green v. Brennan, 578 U.S. (2016).