National Origin Discrimination

At work, you are entitled to be the treated the same as every other worker whether you are from Guatemala, Pakistan, Canada, the United States, Portugal, China, Italy, Russia or anywhere else in the world. That is because both the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 (LAD), and Title VII of the Civil Rights Act of 1964 prohibit discrimination against employees on the basis of their national origin. New Jersey’s national origin discrimination attorneys at Lenzo & Reis are experienced in successfully pursuing justice for workers discriminated against on the basis of their national origin.

Although “national origin”, “national origin discrimination”, and “national origin harassment” are not defined anywhere in the New Jersey Law Against Discrimination (LAD), the United States Equal Employment Opportunity Commission (EEOC) has provided guidance on this protected class of employees. Specifically, the EEOC explained that treating people unfavorably because of their country of origin constitutes unlawful national origin discrimination. National origin discrimination also can occur when an employer treats a worker unfavorably who the employer believes to be from a particular country even if the employee is not. That means that if an employer discriminates against or harasses employees because the employer believes them to be from, for example, China, the employer is violating the law even if the employees are not from China but, instead, from Japan. Discriminating against employees because of their ethnicity or accent is also against the law. The attorneys at Lenzo & Reis, who understand how prevalent discrimination on the basis of national origin is, know how to pursue and prove national origin discrimination claims and obtain justice for the employees subjected to such discrimination.

Employers who treat employees unfavorably because they are married to, in relationships with, friends with, and/or otherwise associate with people from another country or people with accents are also engaging in unlawful national origin discrimination. New Jersey employment attorneys commonly refer to such discrimination as “associational discrimination”. Associational discrimination refers to discrimination that occurs not because employees are members of a protected class (such as being from a certain country or having an accent) but rather because they associate with such people.

Simply, national origin discrimination means treating employees less favorably because of their country of origin or accent. Like any other form of discrimination, unlawful national origin discrimination may manifest itself in adverse employment actions, which mean tangible actions affecting employment, or in terms of a hostile work environment to which workers are subjected. Some examples of national origin discrimination referred to as adverse employment actions directly impact employees’ pay and/or continued employment and may involve actions like

• more harshly disciplining employees from a certain country,
• paying employees less who are of a particular nationality,
• firing or laying off employees from a particular country,
• refusing to hire individuals who are of a particular nationality,
• demoting employees because they are from a particular country,
• refusing or failing to promote employees because they are of a particular nationality,
• giving unfavorable work transfers or assignments to employees from a particular country, and
• assigning sales accounts to employees based on their country of origin as long as fluency in the language of the country is not a requirement for handling such accounts.

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

• more harshly criticizing employees from a particular country,
• making fun of employees’ accents,
• making jokes about employees’ country of origin or because of their national origin,
• exhibiting symbols, pictures or signs that are offensive based on national origin,
• constantly making teasing and/or negative comments about employees’ nations of origin or nationality,
• generally treating employees more harshly because of their national origin.

Implicit bias occurs when employment decisions are not motivated by discrimination that is conscious, knowing, and intentional but rather by the unconscious, which means biases that we do not even sometimes realize we have and that are outside of our control. Supervisors or managers who favor employees from a particular country, even if they do so unknowingly, are engaging in implicit bias. Studies exist that unconscious bias often infiltrates hiring, promotion, pay, and other benefits’ decisions affecting employees as well as the performance feedback and discipline issued to workers. Implicit bias it is against the law even if it is unconscious. 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).

To prove illegal national origin discrimination, workers must show that they were treated more harshly or less favorably because of their country of origin, accent, and/or because they associate with people from a particular country. How to specifically prove the existence of national origin discrimination depends on different factors such as whether there is any direct (smoking gun) evidence of discrimination and whether the discrimination involves adverse employment actions or hostile work environments. It is important to understand that the New Jersey Supreme Court made clear in Zive v. Stanley Roberts, Inc., 182 N.J. 436 (2006), that employees do not have to present direct evidence of discrimination. That is because discriminating employers are not likely to leave paper trails of their unlawful intent or otherwise express it to others. 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).

Courts use what is known as the burden-shifting paradigm first set forth by the Supreme Court of the United States in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), to determine whether national origin discrimination occurred when there is no direct evidence of such discrimination or harassment. For example, employees claiming that they were subjected to an adverse employment action such as an illegal firing or demotion because of their national origin must show that:

1. they are members of a protected class (meaning of a particular national origin),
2. they were performing their job duties,
3. they were subjected to some type of adverse action (such as being demoted or fired), and
4. their employers sought to replace them with other workers.

Once employees establish the existence of those facts, the employers must articulate some legitimate business justification for their actions. Once the employers do so, the employees must show that the employer’s justification is either not believable or did not motivate its employment decision. 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 the rare circumstances when direct (smoking gun) evidence exists of national origin discrimination, courts use the framework set out by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), instead of the McDonnell Douglas paradigm. Under Price Waterhouse framework, the employer must prove that it would have taken the same adverse employment actions that it took even if even if its actions were not motivated by discrimination. Starceski v. Westinghouse Electric Corp., 54 F.3d 1089 (3d Cir. 1995).

If employees are subjected to severe or pervasive harassment on the basis of their national origin but no tangible employment action, they must show that

1. the harassment that they suffered would not have occurred if not for their national origin, accent, and/or association with a person of a particular national origin,
2. the harassment was either severe or pervasive, and
3. a reasonable person of the same nationality as the employee making the claim would believe that the terms and conditions of employment were altered and the working environment is either hostile or abusive.

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

If you are being or have been discriminated against or harassed at work because of your national origin, 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 have achieved significant settlements and verdicts for our clients who were discriminated against at work. We can help you, too!

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