national origin discrimination, tab a - overview of

EEOC Training Institute Resource Guide National Origin Discrimination

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OVERVIEW OF NATIONAL ORIGIN DISCRIMINATION AND SELF-TEST MODULE

SELF-TEST ON NATIONAL ORIGIN DISCRIMINATION The eight questions below are a self-test of your knowledge concerning the prohibitions against national origin discrimination. Read each question carefully and think about how you would respond to each question. Part II of this section contains a discussion of each question.

1. Chen was born in China and now lives in the U.S. He has worked as a

salesperson at Value Department Store for eight years and applies for a job as manager. His application is rejected, and his co-worker, John Byrd, is awarded the promotion. Chen feels that his qualifications are superior to Byrd’s, and suspects that the true reason he failed to receive the promotion was his national origin. Chen therefore files a charge of discrimination. If there is evidence that supports his allegation, should a violation of Title VII be found?

2. Same as above, but it turns out that the selecting official at Value

Department Store is from Japan and there is evidence that he preferred not to promote Chinese people. This official has hired and promoted Asians from countries other than China. Will this defeat Chen’s Title VII claim?

3. Bill Aman was born in Syria, moved to the United States when he was

eleven years old, and now works for ABC Camping Equipment Company. His co-workers frequently call him names like “camel jockey” and “rug peddler.” A supervisor once told him, “You should go back to the desert you came from now that you’ve learned all about tents.” Mr. Aman complained about this conduct, but ABC failed to take any action. Can Mr. Aman establish a violation of Title VII?


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4. Acme Spool Company is hiring for a bolt tightener job, which is an unskilled entry level assembly line position. The selecting official rejects Yung-Mi Lee, a U.S. citizen born in Korea, asserting that Ms. Lee’s foreign accent makes it difficult to communicate with her. Can Ms. Lee show a violation of Title VII?

5. Cracklin Chiropractic Clinic employs a substantial number of

Russians. Cracklin decides to institute a speak-English-only rule that applies at all times in the workplace except during breaks or lunch or if an employee is asked to translate for a patient. Gregor and Andrei are “fined” a day’s pay for violating the rule. Gregor is a bilingual Russian American whose primary language is Russian, and Andrei recently arrived in the U.S. and speaks very little English. They believe that the rule discriminates against them based on their national origin. Does Cracklin’s English-only rule violate Title VII?

6. Carla is a Mexican citizen who lives in Houston, Texas, and is

authorized to work in this country. She applies for a job as a private school teacher, for which she has all the necessary qualifications, but is turned down based on the school’s requirement that all teachers be U.S. citizens. Does this constitute discrimination on the basis of national origin?

7. Mishimoto is incorporated in Japan, but makes electrical wiring at a

plant in Ohio. Mishimoto fires Arthur Green, an American employee who had been Vice President of Operations at the Ohio plant and replaces him with a Japanese citizen who had been an employee at its Tokyo headquarters. Mishimoto also gives special bonuses and additional vacation time to its executives in the United States, but only if they are citizens of Japan. Mr. Green and three current American employees file charges alleging national origin discrimination. Do special rules apply because Mishimoto is a foreign employer?


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8. Same facts as in Question 7 above, but Mishimoto is a U.S. incorporated subsidiary of a Japanese parent corporation. Does that change the analysis? Why?

INTRODUCTION TO NATIONAL ORIGIN DISCRIMINATION The discussion below defines national origin discrimination and presents a brief overview of the ways in which the basic theories of discrimination apply in the context of national origin. The primary focus, however, will be on particular employment policies that may specifically affect people on the basis of their national origin. These policies include employer requirements that employees speak only English on the job, and employer decisions made on the basis of an individual’s accent or appearance. We will also address special issues that can arise when a foreign employer prefers individuals from its country of origin and particular questions relating to immigration status. Note that the discussion often may refer to what a person claiming national origin discrimination must “show” in order to establish a violation of Title VII. This is in keeping with the manner in which the courts have articulated the order and burden of proof when the matter is being tried in a court of law. When a person files a charge with EEOC, the investigator seeks out all relevant evidence from all parties to the charge and then makes a determination as to whether it is more likely than not that unlawful discrimination occurred. DEFINITION OF NATIONAL ORIGIN DISCRIMINATION Title VII protects individuals against employment discrimination on the basis of their national origin in the same way that it protects against discrimination based on race, color, religion or sex. Thus, no one can be denied equal employment opportunity because of his or her national origin.


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National origin discrimination is defined in EEOC Guidelines as follows: 1. Discrimination because of an individual’s (or his or her

ancestors’) place of origin.

In Self Test Question 1, if Chen proves that he was turned down for the promotion because he is from China, that violates Title VII. Note that Chen himself need not be from China to establish national origin discrimination. Title VII is violated if Chen is discriminated against because either he or his ancestors are from China.

In Question 2, it does not matter if the person who turned Chen down is Asian also. As long as Chen can show that he suffered adverse treatment because of his national origin, he can claim a violation of Title VII. Further, simply showing that a company hires Asians with national origins other than Chinese (for example, people of Korean, Japanese, or Vietnamese origin) does not prove that a company did not discriminate on the basis of Chen’s Chinese origin.

An applicant can also allege that discrimination occurred because he or she is American and that an employer prefers to hire individuals of another national origin. Also see discussion later in this section on discrimination by foreign employers that operate in the United States.

2. Discrimination because an individual has the physical, cultural or

linguistic characteristics of a national origin group.

It is not necessary for an individual to demonstrate that he or his ancestors are from a particular country or region to establish national origin discrimination. A claim can be established if an individual is discriminated against for having certain ethnic characteristics.

We will discuss later what happens when an employer makes employment decisions based on accent or ethnic appearance.


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3. Discrimination due to association with persons of a national origin group; discrimination due to attendance at schools or places of worship used by persons of a national origin group; and discrimination because an individual’s (or his/her spouse’s) name is associated with a particular national origin group.

For example, one supervisor demanded that an employee not tell anyone about her husband being Palestinian, even though he is a U.S. citizen. The employee found the request offensive and refused. She was terminated, despite having seven months of excellent ratings. She alleged discrimination because of association. In addition, the employee alleged retaliation for having opposed national origin discrimination. A Title VII claim can be established in this situation.

APPLICATION OF BASIC THEORIES TO NATIONAL ORIGIN DISCRIMINATION

1. Disparate Treatment Disparate treatment is the most easily understood and the most common form of discrimination. The issue in a disparate treatment case is whether a person has been treated adversely because of his/her national origin. Direct evidence of an intent to discriminate, such as a hiring official’s statement that “I don’t like Jamaicans and I don’t intend to hire one,” is enough to prove disparate treatment. This kind of evidence, however, is rare. In most cases, the person offers circumstantial evidence that the employer’s action is based on his/her national origin. In many of those cases, the person alleges that someone of a different national origin was treated better under similar circumstances or conditions. In one disparate treatment case, a Hispanic waitress at a Texas restaurant was terminated after being accused of encouraging other waitresses to quit and apply for jobs at another restaurant as a team.


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Co-workers provided testimony that the employer was aware that a non-Hispanic employee offered to use her connections to get jobs for them at a competitor’s restaurant. The employer took no action against the non-Hispanic employee. The appeals court ruled that there was a genuine issue of fact whether the employer used the attempt to get other employees to quit as a pretext for firing the waitress because of her national origin.

In Question 1, if Chen has no direct evidence that Value discriminates against those of Chinese national origin, he will have to show such discrimination circumstantially. If he can prove that he was more qualified for the job than John Byrd, and if Value can offer no credible explanation for Byrd’s selection, then Chen will probably win.

2. Disparate Impact

In a case of disparate impact, the employer has a policy or practice that, on its face, appears neutral, but adversely affects persons of a particular national origin. Title VII prohibits neutral employment practices that disproportionately exclude people of a certain national origin unless the practices are justified by business necessity. If there is a business need for a practice that has a disparate impact, then the practice nonetheless may be unlawful if there is an alternative that achieves the desired results without the adverse effect.

Practices that have been found to have an adverse effect on particular national origin groups include:

● Minimum height requirements

A number of courts have held that minimum height requirements for law enforcement and fire fighter jobs disproportionately screen out people of various national origins,


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such as Hispanics and Asians, and thus must be justified by business necessity.

● Arrest and conviction records

An employer’s refusal to hire individuals with arrest or conviction records may disproportionately screen out persons of certain national origins. If such adverse impact is shown, the policy would have to be justified as job-related and consistent with business necessity.

● Educational requirements

Educational degree requirements have in some instances been found to have a disparate impact on certain ethnic groups. For example, in one case a class action suit was brought against a metals company challenging its high school diploma requirement for welders and other jobs because this educational requirement had an adverse impact on Mexican Americans. The employer argued that its policy was justified because it was designed to upgrade the overall quality of its work force and to facilitate advancement and progression within the plant. The court rejected this argument and ruled in favor of the plaintiffs.

● Citizenship requirements

Citizenship requirements may have a disparate impact based on national origin. This will be discussed later.

3. Harassment

National origin harassment is unlawful when it is unwelcome and so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive. Harassment based on


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national origin can take many different forms, including ethnic slurs, workplace graffiti, or other offensive conduct directed toward an individual’s birthplace, ethnicity, culture, or foreign accent.

The context, severity and frequency of the conduct are factors in whether the conduct is considered illegal harassment. For example, a Korean executive noted that he was offended when “well-meaning” Americans in his division complimented him on “how good his English is.” This was the only evidence of discrimination provided by the executive and he only recalled two incidents when this was said. This conduct was not severe or frequent enough to be considered illegal harassment. Similarly, although the term “Oriental” is often viewed as derogatory and offensive when used to refer to people of a certain ethnic descent, one utterance of this term would not be enough to establish severe or pervasive conduct.

Let’s look at Question 3 of the Self-Test Quiz. Aman could probably demonstrate that a reasonable person would have found the conduct of his co-workers and supervisor to be severe or pervasive enough to create a hostile or abusive work environment on the basis of national origin and that he himself perceived the environment to be hostile or abusive.

● Aman does not have to show he suffered psychological injury;

it is enough that the insults made it harder for him to do his job.

● The facts here show frequent taunting on the basis of national origin. Aman would have a harder time if he had been ridiculed only on isolated occasions, although some ethnic epithets are so patently offensive that even rare utterances of them may be enough to establish a violation.


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● Harassment on the basis of an individual’s association with people of a particular national origin is also prohibited. Thus, Aman would have a claim if he were harassed because his wife is from Syria.

● In some cases, the alleged harassment may consist of singling

out a particular person for poor treatment or intimidation based on his national origin, even if the taunts or actions do not explicitly refer to national origin. For example, after September 11, 2001, one Arab-American employee complained to his supervisor that his co-workers constantly referred to him as “the local terrorist,” left flight-school literature on his desk, and repeatedly embarrassed him in front of customers by claiming that he was incompetent. The employee was humiliated by the conduct and told his supervisor that he considered it harassing. Although the conduct did not explicitly refer to the employee’s Arab origin, it nonetheless is based on his national origin. The frequent, severe, and offensive conduct has created a hostile work environment.

Additional discussion about legal standards and employer liability involving workplace harassment is provided in the Sex Discrimination volume of this series.

DISCRIMINATION BASED ON ACCENT

Under Title VII, distinctions based on accent are permissible only when accent “interferes materially with job performance.” The question for employers to ask themselves, therefore, is whether an individual’s accent makes it substantially more difficult for him or her to perform the job duties.


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It is important to recognize that discrimination based on accent can be a “cover” for more overt discrimination based on national origin. As one court said, “it would be an easy refuge for an employer unlawfully discriminating based on national origin to state falsely that it was not the person’s national origin that caused the problem but her inability to measure up to the communications skills required by the job.” Furthermore, an employer can be liable even if it genuinely believes that an individual’s accent poses a problem for adequate performance of a job, if the employer is mistaken and is requiring an unduly high ability to communicate. So, employers should ask themselves two questions:

● Does the individual’s accent interfere with the ability to

communicate?

● If so, does the ability to communicate materially relate to the ability to perform the job?

If the answer to either question is no, and the employer has denied employment opportunities based on a person’s accent, then the employer will be liable for national origin discrimination.

Let’s look at how these principles would be applied to the facts in Question 4. Acme claims that it rejected Ms. Lee because of her accent. The issue is whether the accent makes it substantially more difficult for Ms. Lee to perform her job duties. Suppose, for example, that Acme has previously hired for the same job individuals with thick regional accents who are equally difficult to understand. This evidence suggests that Acme may be applying its standards inconsistently--that is, that it may have treated Ms. Lee differently from others on the basis of national origin. This evidence would also be contrary to Acme’s claim that ability to communicate is materially related to the ability to perform the job.


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Even if Acme can show that it rejects everyone with heavy accents, it would also have to show that the ability to communicate well in English was required for the particular job and that Ms. Lee’s accent interfered with that necessary ability. If the job only requires Ms. Lee to use a wrench to tighten bolts that pass by her on an assembly line every ten seconds, communication is probably not job-related. It is not a defense that Acme simply wanted to hire employees with whom its supervisors could “better” communicate. Ms. Lee likely would be able to take direction from her supervisor and perform the job functions with just a minimal ability to communicate effectively. DISCRIMINATION BASED ON ENGLISH PROFICIENCY Employer decisions made on the basis of an individual’s ability to speak English well are analyzed in similar ways. For example, to justify a requirement that an individual be fluent in English, an employer would have to show that the level of fluency required was materially related to job performance. If Ms. Lee, in Question 4, does not understand English and would not be able to take direction in English, Acme might be justified in turning her down, even for the bolt tightener job. Whether Acme could avoid liability would depend on the specific facts of the case. For example, it is relevant whether Ms. Lee’s supervisor and other Acme officials and employees only spoke English or whether anyone else also spoke Korean and could translate for her when necessary.

Also note that the ability to communicate in writing may be justified if the ability to write clearly in English is an essential part of the job.


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Examples of jobs in which the ability to communicate in English has been found essential:

● Job requiring extensive contact with English-speaking clients

For example, the job of hotel desk clerk requires extensive contact with hotel guests.

● Managerial job requiring clear communication of job

requirements or standards to subordinates

For example, the job of foreman at a construction site requires extensive communication with construction workers and other project managers.

● Job requiring response to emergency situations in which quick

and succinct communication is necessary

For example, hospital staff must deal with emergencies and often must be able to quickly and effectively communicate what is wrong with a patient or what needs to be done by other members of the staff.

SPEAK ENGLISH-ONLY RULES If an employer imposes policies that restrict employees’ right to speak languages other than English in the workplace, these rules may have the effect of burdening those employees whose primary language or the language with which they are most comfortable is not English. The fact that the rules are applied neutrally to all employees of all national origins does not change its possible effect. The Commission’s policy is that English-only rules are presumed to have an adverse impact based on national origin and, therefore, must be shown to be job-related and consistent with business necessity.


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This is because prohibiting employees from speaking their primary language or the language they speak most comfortably disadvantages an individual’s job opportunities on the basis of national origin. It can also create an intimidating and discriminatory work environment. For employers in the Ninth Circuit, be aware that the Ninth Circuit Court of Appeals has held that adverse impact from speak-English-only rules must be proven, not presumed, before the employer need justify the rule. The court further held that bilingual employees are not likely to suffer significant harm from English-only rules since they can comply with these rules with only some inconvenience. However, the Court did acknowledge that employees who have limited proficiency in English might well suffer significant harm. The Ninth Circuit covers California, Oregon, Washington, Arizona, Nevada, Idaho, Montana, Alaska, Hawaii & Guam. Once adverse impact is presumed, or proven as required by the Ninth Circuit, the employer must prove that the English-only rule is job-related and consistent with business necessity. The lawfulness of the rule may depend on whether the rule is applied at all times or only at specified times.

1. Rule applied at all times -- presumptively violates Title VII

A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, rarely will be justified by business necessity. An exception might be an unusual work environment where safety considerations are of primary concern even during employee break times.

2. Rule applied only at certain times -- may be lawful if job related

and consistent with business necessity

An employer is more likely to be able to show that its rule is job- related and consistent with business necessity if it applies the English-only rule only at those times when the rule is necessary to accomplish


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a legitimate business purpose. Typically, narrowly drawn rules justified by business necessity apply only to certain employees while they are performing specific duties or under specific circumstances.

3. Rule applied where no notice given -- violates Title VII

Even if there is business necessity for an English-only rule, an adverse action taken on the basis of that rule will violate Title VII if the employer has not first provided its employees with effective notice of the rule. Such notice includes informing employees of the general circumstances in which speaking only English is required and of the consequences of violating the rule.

What are some examples of business reasons that might justify an English-only rule? Remember that an employer must do more than merely assert a particular need for an English-only rule; the employer must prove it.

1. Communication among coworkers where close coordination is required

English-only rules might be justified in work situations requiring close coordination among employees, particularly where a communication failure could result in injury to persons or damage to property. Examples include performing surgery; drilling an oil well; using dangerous equipment or working with dangerous substances; or working in a laboratory, refinery, mine or construction site or other location where accidents or emergencies are likely to occur.

2. Communication between employees and English-speaking customers

Satisfactory job performance may require that employees speak English while attending to customers or clients who speak English. Of course, where a customer prefers to conduct business in another


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language, it would not be necessary to apply an English-only rule. Note, however, a preference by customers that employees speak only English among themselves does not justify imposition of an English-only rule for those interactions.

3. Communication between employees and supervisors

Effective communication between supervisors and subordinates may require that an English-only rule be imposed for those interactions.

In Question 5 concerning the English-only rule applied at a company which employs a substantial number of Russians, the Commission would presume that both Andrei and Gregor could show that the English-only policy would have adverse impact, and we would require Cracklin to justify its policy. In the Ninth Circuit, however, courts would require that adverse impact be proven before requiring Cracklin to justify its policy. Gregor would have a harder time showing such impact than Andrei, since Gregor, who is bilingual, can arguably comply with the English-only rule with only some inconvenience whereas Andrei speaks very little English.

As to business necessity, Cracklin might be able to claim that its English-speaking supervisors need to be able to instruct employees on proper procedures. However, it might have a more difficult time justifying imposition of the rule where co-workers converse with each other. But the fact that Cracklin does not impose the English-only rule during lunch and breaks makes it more likely that it can justify the rule.

Suppose that Cracklin imposed a “no-Russian” rule instead of an “English-only rule.” Would the same analysis apply? This type of rule could be evidence of disparate treatment -- that Cracklin adopted the rule with the intent to disadvantage its employees of Russian national origin. If Cracklin enforced an English-only rule with its


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Russian employees, but allowed other employees to speak their primary languages, Cracklin could be held liable for intentional discrimination on the basis of national origin. Because the rule is discriminatory on its face, Cracklin would be liable for a Title VII violation unless it could challenge the credibility of the evidence of the rule’s existence and application or establish an affirmative defense for its actions. In any event, the English-only rule is likely to have a disproportionate effect on Russian employees and thus lead to a disparate-impact challenge as well.

BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ) DEFENSE FOR DISCRIMINATION BASED ON NATIONAL ORIGIN Under Title VII, national origin (like sex and religion) may be a bona fide occupational qualification for a job, if membership in a particular ethnic group is necessary to perform the essential duties of the job.

However, this rarely comes up and the courts have been very reluctant to recognize its application. DISCRIMINATION BASED ON APPEARANCE Let’s say that Radika, an Indian woman, applies for a job as a receptionist. At her interview, the selecting official says that Radika would not be right for the job, because the company is looking for someone with “front office appearance.” She is dressed appropriately, and is certain that the only thing about her appearance that is not of the “front office” type is that she is Indian, rather than an all-American type, which generally means Caucasian. If Radika can show that the selecting official viewed her appearance as inappropriate because of her Indian features, can she establish a violation of Title VII? Yes -- any time an employer discriminates against an applicant or employee because of his or her ethnic appearance, a violation of Title VII can be established. Similarly, if an employer refuses to allow


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an Indian employee to wear a sari, but imposes no dress code on other employees, it could be found liable for national origin discrimination. Another example involves a national clothing retailer accused of having a corporate policy that requires all sales people to exhibit an “all-American” look. A Chinese-American employee alleged that she was terminated after a manager pointed at a poster of a blond-haired, blue-eyed model and told her that the store needed more staff members with a similar appearance. Employers seeking to restrict employment to individuals with “all-American” looks can be found liable for national origin discrimination. CITIZENSHIP REQUIREMENTS 1. Title VII Discrimination

Discrimination against an individual because he or she is not a U.S. citizen does not necessarily violate Title VII, since Title VII does not prohibit discrimination based on citizenship. However, a preference for U.S. citizens may in certain circumstances constitute national origin discrimination in violation of the Act. Moreover, the Immigration Reform and Control Act of 1986, commonly referred to as “IRCA,” prohibits discrimination based on citizenship against citizens or intending citizens. See 28 C.F.R. §§ 44.101(c), 44.200(a)(1)(ii). EEOC does not enforce IRCA. For more specific information about that IRCA’s anti-discrimination requirements, call the Office of Special Counsel at the Department of Justice, at 1-800-255-7688 or 1-800-237-7688 (TDD). A citizenship requirement violates Title VII if it has the purpose of discriminating on the basis of national origin, or if it has the effect of doing so and is not job-related and consistent with business necessity. In Question 6, a Mexican citizen applies for a teacher job, but is


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turned down based on the school’s requirement that all teachers be U.S. citizens. The facts suggest that the school wanted to exclude non-citizens, not that the motive behind its citizenship requirement was to discriminate against those of Mexican national origin. If, however, Carla could show that the school selectively enforced its citizenship requirement and had hired non-U.S. citizens from other countries, such as Spain, that could help prove that the school intentionally discriminated against her because of her Mexican national origin.

Alternatively, Carla could attempt to prove that the school’s citizenship preference had the effect of disproportionately excluding Mexicans. If Carla could prove that the citizenship requirement has an adverse impact on persons of Mexican national origin, the school would have to demonstrate that the requirement is job-related and consistent with business necessity.

Note that whether there is adverse impact will depend on the facts of the case. In one well known case, a Mexican citizen applied to work as a seamstress in a garment factory. Although the factory had a policy of hiring only U.S. citizens, the Supreme Court found that the policy did not have the purpose or effect of discriminating on the basis of national origin because 96% of the workers were U.S. citizens of Mexican national origin.

Aliens who work in the United States are protected under Title VII. Thus, even if Carla, a non-U.S. citizen, lacked work authorization, she would be able to file a discrimination charge under Title VII. However, absent work authorization, Carla might be unable to obtain some forms of relief, including reinstatement and backpay for any periods that she did not work. This is because the Immigration Reform and Control Act makes it illegal to employ aliens who are not authorized to work in this country.


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2. IRCA - Immigration Reform and Control Act

While the school’s citizenship requirement in Question 6 might not necessarily violate Title VII, it might violate IRCA. Following is a brief review of some of the major provisions of IRCA, and its interaction with Title VII.

● IRCA bars employers from knowingly hiring, recruiting, or

referring for a fee any alien unauthorized to work in the U.S. ● IRCA makes it illegal to hire any individual without complying

with certain verification requirements to ensure legal work status. IRCA requires employers to document all workers hired by completing Employment Eligibility Verification Form I-9.

● IRCA prohibits discrimination based upon a person’s

citizenship, immigration status, or national origin in hiring, firing, recruiting, or recruiting for a fee.

Congress added the anti-discrimination provision to IRCA to ensure that employers who were fearful of being penalized for hiring illegal workers did not fire or refuse to hire foreign-looking or sounding-workers. Note that, unlike Title VII, IRCA explicitly prohibits citizenship discrimination. Also note, however, that IRCA’s prohibition against national origin discrimination does not extend to terms and conditions of employment.

● The IRCA prohibition on citizenship discrimination covers all

employers with four or more employees.


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● The IRCA prohibition on national origin discrimination covers employers with at least four employees but no more than 14 employees. Thus, IRCA’s prohibition against national origin discrimination covers employers who fall outside the purview of Title VII.

● IRCA also prohibits retaliation against those who file an IRCA

charge or otherwise assist in an investigation.

Examples of prohibited citizenship discrimination under IRCA:

● Maintaining a “U.S. citizen only” policy

Either a general policy or individual case of refusal to consider for employment a non-citizen who is legally authorized to work.

● Maintaining a “Green Card only” policy

Either a general policy or individual case of refusing to consider a non-citizen who lacks a “green card” for employment, but has other documentation of work authorization

● Requiring a specific or additional work authorization document

rather than letting the applicant meet documentation requirements in any of the ways allowed under IRCA

Note that this conduct may also violate Title VII if such documentation is required only of individuals who look foreign or are of a certain national origin.


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Exceptions to IRCA’s prohibition against citizenship discrimination:

● Citizenship discrimination is allowed if required by law,

regulation, Executive Order or government contract (can be state, local or federal).

● When choosing between two equally qualified individuals, an

employer may prefer the U.S. citizen. DISCRIMINATION BY FOREIGN EMPLOYERS IN THE UNITED STATES Discrimination by foreign employers that occurs in the United States generally is covered by Title VII. Foreign-incorporated or foreign-owned employers operating in the United States do not escape Title VII liability simply because they are incorporated abroad or are owned by a foreign company or foreign nationals.1 Treaties such as Friendship, Commerce and Navigation (“FCN”) treaties may authorize some foreign employers to favor their own nationals. The U.S. has entered into numerous such treaties. Let’s take the FCN treaty between the United States and Japan as an example. Every treaty is different, so the analysis may vary in cases involving employers of other nationalities.

1 This section addresses discrimination occurring in the U.S. by foreign-owed businesses and not discrimination occurring abroad.


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EXAMPLE: Under the FCN treaty between the U.S. and Japan, Japanese companies operating in the U.S. can “engage accountants and other technical experts, executive personnel, attorneys, agents and other specialists of their choice.” Despite its broad language, this treaty does not permit Japanese companies to hire anyone they wish without regard to Title VII. What the treaty clearly does is permit some Japanese companies to favor Japanese citizens for high level jobs on the basis of their citizenship. Such conduct is not subject to Title VII.

Note, however, that if a treaty is not applicable, the foreign employer generally gets no special protection. If it prefers its own citizens or otherwise discriminates, it will be liable under the same circumstances as an American employer. So how can an employer tell if it can rely on a treaty? Basically, employers should ask themselves the following three questions. If the answer to any of them is “no,” the employer will not be protected by a treaty.

1. Is the employer covered by the treaty?

The U.S./Japanese FCN treaty does not protect companies incorporated in the United States, even if they are owned by Japanese entities or nationals.

● Thus, in Question 8, because Mishimoto is incorporated in the

United States, it cannot claim that it is covered by an FCN treaty. In Question 7, Mishimoto will be covered by the treaty.

The “Place of Incorporation” rule generally provides a simple, bright line test to determine whether a treaty applies.


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● But suppose that Mishimoto is incorporated in the United States, as in Question 8, but it was its Japanese parent that told Mishimoto to fire Arthur Green and that dictated that bonuses and extra vacation leave be given only to Japanese executives working in the United States. EEOC would say that the rule is no different: if the discrimination was carried out by Mishimoto here, Mishimoto is not protected by the treaty. But the 5th Circuit (covering Texas, Louisiana, and Mississippi), and the 7th Circuit (covering Illinois, Wisconsin and Indiana), have said there would be a difference: if Mishimoto is merely carrying out the directions of its Japanese parent, it can claim treaty protection even though Mishimoto is incorporated here.

2. Are the challenged employment practices covered by the treaty?

The U.S./Japanese FCN treaty only covers accountants, technical experts, executive personnel, attorneys, and other specialists. So the first question is whether the position involved is among those named in the treaty.

● In Question 7, Mishimoto fires Arthur Green, Vice President of

Operations. Because Green and his replacement are executives, the treaty probably applies to these jobs.

● If, however, Mishimoto had fired an American secretary who

worked in the Word Processing Department and received assignments from numerous Mishimoto employees, the treaty would probably not apply. Such a secretary is unlikely to be a “specialist” or other covered person as provided in the treaty.

If the position involved is among those covered by the treaty, the next question is whether the treaty covers the specific employment action.


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As to the particular conduct challenged by Green, it’s likely that Mishimoto’s right under the FCN treaty to “engage” Japanese executives includes the right to fire their American predecessors. However, it is unclear whether the treaty would allow Mishimoto to discriminate in the awarding of bonuses, since that conduct is not technically covered by the right to “engage” certain personnel.

3. Has the employer simply favored citizens of its home country for

covered positions on the basis of their citizenship? As noted above, if an FCN treaty is applicable, the Commission interprets it as meaning that an employer’s decision to prefer its own citizens on the basis of citizenship cannot subject the employer to Title VII liability.

So in Question 7, if Mishimoto fires Arthur Green simply because it wants to hire someone who has Japanese citizenship, it is likely to be insulated from any Title VII liability. While a violation might not ultimately be found even if Title VII were applied, the treaty means that Mishimoto need not defend against a claim that its citizenship preference has a discriminatory effect.

But if an employer goes beyond this limited exemption, it will no longer be able to rely on the treaty. Basic Title VII principles will then apply to assess its liability.

● FCN treaties do not permit covered employers to discriminate

on bases of race, sex, religion, national origin, age, or disability. Thus, the treaty won’t help Mishimoto if it fires Arthur Green based on his race and replaces him with another American citizen of a different race. Nor would the treaty apply if Mishimoto forces women -- but not men -- to fill in for the receptionist during lunch hour.


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● Nor can employers use FCN treaties as a basis for favoring citizens of countries other than their home countries. Mishimoto can’t claim treaty protection if it fires Arthur Green to hire a Bolivian citizen.

● In addition, even if Mishimoto favors Japanese citizens, the

reason it does so may be relevant in determining treaty protection. If Mishimoto fired Green because of his age, for example, it probably won’t be protected by the treaty even if Green’s replacement is a Japanese citizen.

Moreover, in some circumstances treaties may provide no protection whatsoever. It is the Commission’s position, for example, that treaties that authorize companies to bring in personnel “in accordance with” U.S. laws generally require that companies conform to Title VII in every respect. Thus, in every case the language of the treaty must be analyzed to determine what kind of protection it provides.

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