Trial Magazine

Animus toward foreign-born people has long generated divisions in American politics and society. However, foreign-born workers who are discriminated against in the American workplace have legal protections available to them: Employers covered by Title VII of the Civil Rights Act of 1964 cannot discriminate based on national origin.¹

Title VII expressly prohibits workplace discrimination based on an employee’s national origin by private sector and state and local governmental employers with 15 or more employees, as well as by the federal government, employment agencies, and labor organizations.² The U.S. Equal Employment Opportunity Commission (EEOC) defines national origin discrimination broadly as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”³

While place of origin is often associated with a specific country, it need not be—it can be based on a geographic region that has never been a country but is closely associated with a particular national origin group. For example, an Illinois federal district court found that discrimination based on an employee’s status as a Roma—the name used by the group of people who have in the past been referred to as “Gypsies”—constituted national origin discrimination under Title VII.⁴

Note that the place of origin forming the basis of the discrimination does not need to be a foreign country—it also can be the United States. Courts have recognized Native American tribal membership as falling within the definition of national origin.⁵

Title VII protection also extends to an employee’s perceived national origin. In one case, the Fifth Circuit found that a plaintiff who was born in India had submitted sufficient evidence for his hostile work environment claim by alleging that he was called “Arab.”⁶ In addition, the protection applies when the discriminatory behavior is based on the employee’s association with someone of a particular national origin, such as when an employer makes disparaging remarks about the employee’s ­foreign-born spouse.⁷

As with other protected categories under Title VII, national origin discrimination includes tangible employment actions such as failure to hire, failure to promote, and termination, as well as harassment.⁸

Many ethnic, racial, and religious groups overlap, and people from these groups often face discrimination because of some or all of those protected categories. Disentangling them usually is an academic exercise at best. For example, people of Arab origin also may face discrimination for their Islamic religious affiliation. Likewise, Haitian nationals may face discrimination based on their national origin and their race.

Remember that national origin discrimination claims are often intertwined with discrimination based on race, religion, and sex. Understanding when and how to bring overlapping claims can lead to a stronger and more successful case.

National Origin and Race

In cases with race and national origin discrimination, a plaintiff may be able to assert a claim under 42 U.S.C. §1981, not just Title VII. Section 1981 prohibits race discrimination in the making and enforcement of contracts, which includes the employment ­relationship.⁹ Section 1981 claims have certain features that are not available under Title VII, including

• uncapped damages¹⁰
• a longer statute of limitations¹¹
• the ability to go straight to court without first filing an EEOC claim¹²
• applicability to all private employers regardless of size.¹³

Asserting national origin and race discrimination also allows plaintiffs to use both types of discriminatory animus to prove their case.¹⁴ For example, ­plaintiffs can present evidence of racially offensive comments, as well as pejorative comments about their accent or ethnic culture. They also can present “me too” evidence that shows a pattern of mistreatment of other people in their workplace who share their protected characteristic, regardless of whether that characteristic is based on race, national origin, or both.

Given how intertwined race and national origin discrimination can be, pleading both claims can provide for broader discovery. In these cases, you typically will request information about any reports or discrimination complaints that defendants have received. Defendants frequently attempt to limit production to only reports or complaints about the same type of discrimination alleged by the plaintiffs. When only national origin discrimination has been alleged, some courts prohibit plaintiffs from obtaining information about other categories of complaints, such as race.¹⁵ This limits your access to reports or complaints from other employees who characterized discriminatory conduct as racist, even though it was also xenophobic.

Not all courts have taken this stance. In a discovery dispute in a recent national origin case, a Louisiana federal district court compelled production of disciplinary information in an employee’s file regarding actions involving “Muslims” because, according to the court, religion, race, and national origin discrimination are often “intertwined.”¹⁶ However, pleading all possible forms of discrimination ensures the production of relevant past reports regardless of how prior complainants characterized the misconduct.

Courts agree that §1981 claims are not available when only national origin discrimination has been alleged.¹⁷ But some courts have refused to dismiss §1981 claims despite the plaintiffs’ failure to explicitly plead race discrimination when the complaints contain references to discrimination based on national origin and the country or ethnic group is predominantly one race or ethnicity.¹⁸ The Fourth Circuit recently held that a plaintiff adequately pleaded race discrimination, despite not expressly referencing race or color, by including allegations of stereotypes of Africans, including their use of “voodoo.”¹⁹

Other courts, however, dismiss §1981 claims when they articulate the basis as national origin only.²⁰ Given the important advantages of §1981 claims, when applicable, plaintiffs should identify that the discrimination is based on race and national origin—and specifically identify each protected category.

National Origin and Religion

In cases that involve both national origin and religious discrimination, but not race discrimination, plaintiffs cannot assert a §1981 claim, so they do not have access to the additional benefits of that claim. Pleading both national origin and religious discrimination, however, continues to be advantageous, even though only Title VII provides protection. In particular, it ensures access to broader discovery into discriminatory conduct or complaints of conduct that could be characterized as either national origin or religious discrimination.

Specifically state in a complaint the plaintiff's national origin and religion, the evidence that supports each form of discrimination, and that the plaintiff is asserting both types of discrimination.

Additionally, Title VII requires an employer to accommodate an employee’s religious practice unless it is an undue burden on the employer.²¹ Depending on the facts, a plaintiff may have a failure-to-accommodate claim, as well as a national origin discrimination claim. For example, let’s say a supervisor of a Muslim employee who had emigrated from the Middle East insulted the employee daily about her accent and called her “terrorist.” The supervisor then fired her when she refused to remove her hijab, a religious head covering.

As with national origin and race, it is critical to specifically plead facts and claims alleging both national origin and religious discrimination. Courts have been willing to acknowledge that certain countries are predominantly one religion and to allow plaintiffs to rely on references to that nationality to establish religious discrimination and vice versa.²² The Tenth Circuit recently held that evidence of animus based on a plaintiff’s Islamic faith was intertwined with animus based on a national origin of Turkey, given that Turkey is a predominantly Muslim country.²³ However, don’t rely on a court’s willingness to infer religion from national origin or vice versa, particularly since not all countries are overwhelmingly monoreligious. It is a far better practice to specifically state in a complaint the plaintiff’s national origin and religion, the evidence that supports each form of discrimination, and that the plaintiff is asserting both types of discrimination.

National origin and sex discrimination can join together to create an intersectional discrimination claim. These claims are distinct because they constitute discrimination against a subcategory of protected individuals.

Intersectional National Origin and Sex Discrimination

National origin and sex discrimination also can join together to create an intersectional discrimination claim. While similar to discrimination based on overlapping protected categories, intersectional claims are distinct because they constitute discrimination against a subcategory of protected individuals. One of the primary benefits of asserting an intersectional national origin and sex claim is that a plaintiff can overcome evidence that an employer did not subject other employees who are only of the same national origin as the plaintiff (or, alternatively, of the same sex) to discriminatory treatment. For example, the Ninth Circuit has held that “[Asian women] may be targeted for discrimination ‘even in the absence of discrimination against [Asian] men or white women.’” ²⁴

Or in the hostile work environment context, if a Latina woman is subjected to unwelcome sexual comments and pejorative statements about her national origin group, she can assert both national origin and sex harassment claims. By asserting intersectional claims, she can combine all the evidence of discrimination—based on sex or national origin—to meet Title VII’s exacting “severe or pervasive” standard, which requires that a plaintiff show that the misconduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.²⁵ The other benefit to an intersectional claim—similar to overlapping race, religion, and national origin claims—is broader discovery.

In intersectional sex and national origin cases, it is even more critical that plaintiffs assert both types of discrimination in their EEOC charges to exhaust their administrative remedies as required under Title VII. In many national origin and race or religion cases, courts have held that the plaintiffs exhausted their administrative remedies even when they expressly cited only national origin discrimination or race or religion as the basis for discrimination.²⁶

In contrast, at least some courts have not extended that leniency to intersectional claims of sex and national origin discrimination. These courts have found that sex and national origin are insufficiently intertwined for the investigation of one claim to lead to the investigation of the other.²⁷

Because national origin discrimination is so often closely tied with other types of discrimination, it is essential to carefully review the facts of the case to determine whether there are intertwining elements of race, religion, and sex discrimination. If there are, use this to strengthen your client’s discrimination case and broaden discovery.

To avoid common pitfalls, you should expressly identify each protected basis in the EEOC charge and carefully develop the facts supporting each claim to ensure administrative exhaustion of all Title VII claims. In cases involving race discrimination, remember to plead a §1981 claim, as well as Title VII claims, given the benefits available under that statute. Finally, courts and juries recognize that national origin, race, religion, and sex discrimination are often inextricably entangled, so don’t shy away from this connection when presenting your evidence.

Alexis Ronickher is a partner with Katz, Marshall & Banks in Washington, D.C. She can be reached at ronickher@kmblegal.com.

Notes

1. Many states and local jurisdictions also have laws that prohibit discrimination on the basis of national origin. Those laws are outside the scope of this article, although many, if not the majority, also are analyzed using Title VII jurisprudence.  
2. 42 U.S.C. §§2000e–2000e17 (2018).
3. EEOC, EEOC Enforcement Guidance on National Origin Discrimination §2, No. 915.005 (Nov. 18, 2016), www.eeoc.gov/laws/guidance/national-origin-guidance.cfm#_ftnref15. 
4. Janko v. Ill. St. Toll Highway Auth., 704 F. Supp. 1531, 1532 (N.D. Ill. 1989). 
5. See, e.g., Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117, 1120 (9th Cir. 1998).
6. EEOC v. WC&M Enters., Inc., 496 F.3d 393, 400–01 (5th Cir. 2007).
7. See Roule v. Petraeus, 2011 WL 5914025, at *4 (N.D. Cal. Nov. 28, 2011); Chacon v. Ochs, 780 F. Supp. 680, 682 (C.D. Cal. 1991).
8. This article focuses on discrimination claims based on disparate treatment, which require that a plaintiff prove a discriminatory motive. Disparate impact claims based on national origin are also available under Title VII to challenge facially neutral policies, such as English-only policies, that adversely affect one group of people of a protected characteristic more than other employees. See EEOC v. Premier Operator Servs., Inc., 113 F. Supp. 2d 1066 (N.D. Tex. 2000). Such disparate impact claims, however, are outside the scope of this article.
9. 42 U.S.C. §1981 (2018), see Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018–19 (4th Cir. 1999).
10. 42 U.S.C. §1981a(b)(4).
11. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004).
12. Buntin v. City of Boston, 813 F.3d 401, 405 (1st Cir. 2015).
13. Lauture v. Int’l Bus. Machs. Corp., 216 F.3d 258, 264 (2d Cir. 2000). 
14. See, e.g., Butler v. MBNA Tech., Inc., 111 F. App’x 230, 233 (5th Cir. 2004) (per curiam), overruled on other grounds by Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731 (5th Cir. 2017).
15. See, e.g., Randleman v. La. Sugar Ref., LLC, 2018 WL 2045396, at *5 (E.D. La. May 2, 2018).  
16. Odeh v. City of Baton Rouge/Parish of E. Baton Rouge, 2016 WL 1254361, at *5 (M.D. La. Mar. 29, 2016).
17. See Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987); Nnadozie v. Genesis HealthCare Corp., 730 F. App’x 151, 157–58 (4th Cir. 2018); Torgerson v. City of Rochester, 643 F.3d 1031, 1052–53 (8th Cir. 2011) (en banc); El-Zabet v. Nissan N. Am., Inc., 211 F. App’x 460, 462 (6th Cir. 2006) (per curiam).
18. See, e.g., Oranika v. City of Chicago, 2005 WL 2663562, at *4 (N.D. Ill. Oct. 17, 2005); cf. Placide-Eugene v. Visiting Nurse Serv. of N.Y., 2013 WL 2383310 (E.D.N.Y. May 30, 2013).
19. See, e.g., Nnadozie, 730 F. App’x at 158–59.
20. See, e.g., Torgerson, 643 F.3d at 1053; Nnadozie, 730 F. App’x at 157.
21. 42 U.S.C. §2000e-2(j).
22. See Sasannejad v. Univ. of Rochester, 329 F. Supp. 2d 385, 391 (W.D.N.Y. 2004).
23. Unal v. Los Alamos Pub. Sch., 638 F. App’x 729, 737 (10th Cir. 2016).
24. See Lam v. Univ. of Haw., 40 F.3d 1551, 1562 (9th Cir. 1994) (quoting Jefferies v. Harris Cnty. Comm. Action Ass’n, 615 F.2d 1025, 1032 (5th Cir. 1980)).
25. See, e.g., Rodriguez v. Rupf, 2008 WL 11454790 (N.D. Cal. Jan. 22, 2008). 
26. See, e.g., Lopez v. Flight Servs. & Sys., Inc., 2008 WL 203028, at *6 (W.D.N.Y. Jan. 23, 2008), overruled on other grounds by Hintergerger v. Catholic Health Sys., 2012 WL 125270 (W.D.N.Y. Jan. 17, 2012); Quinones v. Kohler Mix Specialties, LLC, 2010 WL 1782030, at *3 (D. Conn. Apr. 30, 2010).
27. See, e.g., Gomez v. Serv. Emps. Int’l Union Local 87, 2010 WL 4704407, at *3 (N.D. Cal. Nov. 12, 2010).