Title VII of the Civil Rights Act of 1964 protects employees or applicants from discrimination based on his or her national origin,including Americans.
National origin discrimination involves treating workers (applicants or employees) unfavorably or favorably 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).
National origin discrimination can includepreferring foreign workers, includingworkers with a particular visa status, over American workers.
National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin.
Discrimination can occur when the victim and the person who inflicted the discrimination are of the same national origin.
You can report national origin discrimination to the EEOC via theEEOC Public Portal. Depending on the facts, the same conduct giving rise to a potential violation of Title VII also may violate other laws enforced by other U.S. government agencies –see below.
National Origin Discrimination & Work Situations
Title VII forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Pay discrimination related to national origin can include an employer paying employees who are visa guest workers (including workers on H-1B visas, H-2A visas, etc.) less than similarly situated American workers.
Discriminatory Job Advertisements
Title VII bars discriminatory job advertisements. This can include job ads that say the employer prefers or requires applicants from a particular country or with a particular visa status (for example,“H-1B preferred” or “H-1B only”).
National origin-related disparate treatment in hiring related to job advertisement also can include an employer making it more difficult for applicants from one national origin to apply for positions (for example, subjecting U.S. workers to more laborious application methods than H-1B visa holders during the PERM labor certification process).
National Origin & Harassment
It is unlawful to harass a person because of his or her national origin. Harassment can include, for example, offensive or derogatory remarks about a person's national origin, accent, or ethnicity. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Common Business Reasons Do Not Justify National Origin Discrimination
The following considerations do not excuse an employer’s preference for workers from one national origin group over another (including preferring foreign workers over American workers):
- Lower cost labor (whether due to payment “under the table,” or abusing rules around certain visa-holder wage requirements, etc.);
- Customer or client preference;
- Beliefs that workers from one or more national origin groups are more productive or have a better work ethic.
Misconduct Involving National Origin Discrimination Also May Violate Other Laws
- You can report discriminatory job advertisements preferring visa workers over U.S. workers to bothEEOC (for a violation of Title VII) and theDepartment of Justice’s Civil Rights Division (for a violation of the Immigration and Nationality Act (INA)).
- For other disparate treatment in hiring, firing, recruitment, or other terms or conditions of employment involving both national origin and citizenship status, visa status, or immigration status, you can report this to bothEEOC (for a violation of Title VII) and theDepartment of Justice’s Civil Rights Division (for a violation of the INA or the Immigration Reform and Control Act of 1986 (IRCA)).
- You can report under-payment of visa workers compared to comparable U.S. workers (including via wage-level misclassification) to three agencies:
- You can report an employer for not following other visa program requirements including those for D-1, E-3, H-1B, H-1B1, H-1C, H-2A, and H-2B visas, by contacting the Wage and Hour Division of the U.S. Department of Labor.
- You can report fraud in the visa procurement process by contacting the Fraud Detection and National Security Directorate of U.S. Citizenship and Immigration Services within the Department of Homeland Security.
- You can direct claims that a business employs workers who do not have permission to work in the United States to U.S. Immigration and Customs Enforcement.
- You can report human trafficking tothe National Human Trafficking Hotline if you or someone else is being forced or coerced to do work, including as part of a temporary visa program.
