Ancestry Discrimination

The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 (LAD), and Title VII of the Civil Rights Act of 1964 (Title VII) make clear that employees have the legal right to be free from discrimination and harassment on the basis of their ancestry. Ancestry discrimination or ancestry harassment occurs when workers are treated less favorably because of the country that their ancestors came from. While ancestry discrimination is related to national origin discrimination, the two are not the same. That is because while national origin discrimination refers to targeting employees for less favorable treatment based on their own countries of origin, ancestry discrimination refers to treating them less favorably based on where their ancestors are from. New Jersey’s ancestry discrimination attorneys at Lenzo & Reis are experienced in successfully pursuing justice for workers discriminated against on the basis of their ancestry.

Although the Law Against Discrimination (LAD) includes ancestry as a characteristic deserving a protection from workplace discrimination and harassment, the law does not define ancestry, ancestry discrimination, or ancestry harassment. Similarly, although Title VII protects against ancestry discrimination, unlike the Law Against Discrimination (LAD), it does not specifically include ancestry as a class deserving of protection from discrimination or harassment. Instead, the United States Equal Employment Opportunity Commission (EEOC) has broadly interpreted the protections afforded to the “national origin” protected characteristic to include ancestry. EEOC guidance makes clear that treating employees or job applicants more harshly because of the place of origin of their ancestors constitutes unlawful discrimination and/or harassment. The protections afforded to the characteristic of ancestry is not just limited to workers’ ancestors’ place of birth or origin. Instead, it extends to workers and people sharing common physical, linguistic (language) or social traits with particular groups.

Employers who treat workers negatively because of an erroneous (wrong) belief that the employees are of a particular ancestry are engaging in unlawful ancestry discrimination even if the employers are completely wrong about their employees’ ancestry. That means that if an employer discriminates against or harasses employees because the employer believes that their ancestors are from, for example, India, the employers are violating the law even if the employees are not actually from India but, rather, from Sri Lanka. Discriminating against employees because of their ethnicity, accent, or cultural traditions also violates the law. Chris Lenzo and Claudia Reis recognize how prevalent ancestry discrimination is, know how to pursue and prove ancestry discrimination claims, and regularly obtain justice for their clients subjected to such discrimination and harassment.

Employees who are targeted for negative treatment because of who they associate with – such as who they are married to, in relationships with, or friends with -- are the victims of unlawful ancestry discrimination. That type of discrimination is referred to as “associational discrimination” by New Jersey employment attorneys. Associational discrimination on the basis of ancestry refers to discrimination that occurs not because employees’ ancestry but, instead, because of the ancestry of the people they are friends with, married to, or with whom they otherwise associate.

In a nutshell, ancestry discrimination refers to treating employees less favorably because of their ancestors’ country of origin, cultural customs, or even language. Unlawful ancestry discrimination may take on the form of adverse employment actions, which mean tangible actions affecting employment, or a harassment, which is referred to as a hostile work environment if it is either severe or pervasive. Some examples of ancestry discrimination may involve:

• refusing to hire people who wear traditional ancestral garments or symbols such as crucifixes worn by Christians or hijabs worn by Muslim women,
• transferring workers to undesirable locations,
• disciplining employees with a particular ancestry more harshly,
• paying a lower salary to employees of a particular ancestry,
• terminating the employment of or laying-off workers because they dress in ancestral clothing,
• demoting employees because of their ancestry,
• denying workers promotions because of their ancestry,
• assigning unfavorable or more difficult work to employees because of their ancestry, and
• re-directing sales accounts based on ancestry as long as fluency in the language of the country is not a requirement for handling such accounts.

Illegal ancestry discrimination may also involve more subtle actions that are, nonetheless, hurtful, demoralizing, and harmful such as:

• making fun of employees’ clothes or cultural customs,
• making jokes about employees’ ancestral country of origin or because of their ancestry,
• displaying pictures, signs, and/or symbols that are offensive based on ancestry,
• regularly teasing or negatively commenting on employees’ ancestry,
• more harshly criticizing employees of a particular ancestry, or
• generally treating employees more harshly because of their ancestry.

Yes, implicit bias is illegal. Implicit bias refers to employment decisions that are not motivated by conscious discrimination, but, instead, by unconscious biases that supervisors may not even recognize they have. Existing studies demonstrate the extent to which implicit bias affects all aspects of employment from hiring, promotion, pay, and other benefits’ decisions as well as the type of feedback and discipline issued to employees. Our State Supreme Court has stated that employees are not required to show that their employers engaged in intentional discrimination or intentional harassment. Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993). That said, employers will be liable (responsible) for discriminatory actions even in the absence of an obvious intention to discriminate.

To prove illegal ancestry discrimination, workers must show that they were treated more harshly because of their ancestry or cultural customs or dress, and/or because they associate with people of a particular ancestry. The way that ancestry discrimination is proven depends on whether there is any direct (smoking gun) evidence of discrimination and whether the discrimination involves adverse employment actions or a hostile work environment. Our Supreme Court in, Zive v. Stanley Roberts, Inc., 182 N.J. 436 (2006), made clear that employees do not have to present direct evidence of discrimination to prove discrimination. Such smoking gun evidence of discrimination is not necessary because courts recognize that discriminating employers are not going to leave evidence of their unlawful intent – such as memos explaining that they are discriminating or admitting to others that they are breaking the law. Chipollini v. Spencer Gifts, Inc., 814 F. 2d 893 (3d Cir. 1987); LaMontagne v. American Convenience Products, 750 F. 2d 1405, 1410 (7th Cir. 1984).

In 1973, the Supreme Court of the United States established what is known as the McDonnell Douglas burden-shifting paradigm to guide workers in proving the existence of discrimination in the absence of direct evidence. McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Through that paradigm, employees claiming, for example, that they were fired or demoted because of their ancestry must show that:

1. they are members of a protected class (meaning of a particular ancestry),
2. they were performing their work duties,
3. they were demoted or fired, and
4. their employers hired for their jobs after the firing or demotion.

Once established, employers have to explain why the firing or demotion was justified. Once that is accomplished, the employees claiming discrimination must demonstrate that the justifications provided by the employers are either not believable or did not motivate the employment decisions. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999); St. Mary's Honor Ctr., 509 U.S. 502 (1993); Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543 (App. Div. 1995).

In rare circumstances, direct (smoking gun) evidence exists of ancestry discrimination. In those cases, courts use what is known as the Price Waterhouse framework articulated by the Supreme Court of the United States. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Under that framework, the employer must prove that it would have taken the same adverse employment action (the firing or demotion) that it took irrespective of its discriminatory motivation. Starceski v. Westinghouse Electric Corp., 54 F.3d 1089 (3d Cir. 1995).

The mechanism for proving unlawful harassment is different. If employees are forced to endure severe or pervasive harassment because of their ancestry but not fired, demoted, or subjected to any other tangible employment action, they must demonstrate that:

1. they would not have been harassed if not for their ancestry or association with a person of a particular ancestry,
2. the harassment was sufficient pervasive (occurring very regularly) or particularly severe (bad), and
3. any reasonable person of the same ancestry as the employee making the claim would also conclude that the harassment altered the terms and conditions of employment and created a hostile or abusive environment.

While proving ancestry discrimination or ancestry harassment may seem near impossible, the experienced New Jersey employment attorneys at Lenzo & Reis know exactly how to find evidence of ancestry discrimination, put the pieces of evidence together to prove the existence of discrimination, and present that evidence in a compelling manner.

If you are being or have been discriminated against or harassed at work because of your ancestry, contact the experienced New Jersey discrimination attorneys at Lenzo & Reis either by phone at 973-845-9922 or by completing our online form by clicking here.

We regularly achieve significant settlements and verdicts for our hardworking clients who are discriminated against or harassed at work. We will help you, too!

We proudly represent employees throughout all of New Jersey including Hoboken, Jersey City, Morristown, Somerset, and Hackensack.