The divided states of America: reinterpreting Title VII's national origin provision to account for subnational discrimination within the United States.

• Author: Diaz, Jacqueline Grace

INTRODUCTION I. NATIONAL ORIGIN DISCRIMINATION UNDER TITLE VII A. Definition of "National Origin" B. Proving a National Origin Discrimination Claim 1. Disparate Treatment 2. Disparate Impact II. TITLE VII'S FAILURE TO ACCOUNT FOR SUBNATIONAL DISCRIMINATION A. Title VII's Flawed Assumption of Intracountry Homogeneity B. Prevalence of Subnational Discrimination Within the United States C. Title VII's Inconsistent Treatment of Protected Classes III. BROADENING THE DEFINITION OF NATIONAL ORIGIN TO ENCOMPASS SUBNATIONAL DISCRIMINATION A. The EEOC's Expanded Definition of National Origin B. Courts' Expanded Definition of National Origin Over Time C. Courts' Refusal to Recognize Claims of Subnational Discrimination Within the United States IV. REINTERPRETING NATIONAL ORIGIN UNDER TITLE VII A. "Ethnic Trait" Discrimination B. Regional Discrimination CONCLUSION INTRODUCTION

From the marginalization of Native Americans to the bitter rivalry between the North and the South, discrimination within the United States is not a new phenomenon. For centuries, Americans have discriminated against one another because they come from different parts of the country. Northerners have been derogatorily referred to as "Yankees," (1) Southerners (2) as "rednecks," (3) Appalachians as "hillbillies," (4) Californians as "hippies" and "Valley girls," (5) and Native Americans as "redskins." (6) Such discrimination has had particularly adverse consequences in the employment context due to the assumptions employers draw from these regional identities. For example, Southerners are frequently seen as less competent, intelligent, and educated, (7) which in turn impacts hiring and firing and contributes to a hostile work environment.

Despite the prevalence of regional animus in the United States, employment discrimination based on regional origin is not currently actionable under Title VII's national origin provision. (8) Rather, most courts have interpreted Title VII's national origin provision narrowly, requiring employees to point to a sovereign country of origin in order to make out a national origin discrimination claim. The problem with this country-focused conception of national origin is that it presupposes that nations are homogeneous when, in reality, nations--especially large ones like the United States--are composed of divergent subgroups.

Given this problem, the Equal Employment Opportunity Commission (EEOC) and some courts have begun to broaden the definition of national origin to include "place of origin." They have done so in order to move away from the misguided assumption that sovereignty is required to constitute a "national origin." As a result, courts have upheld discrimination claims where employees traced their national origin to subnational groups in foreign countries, such as Acadians, Creoles, and Gypsies, as well as Serbians as part of the former Yugoslavia. However, courts have refused to allow employees to prove discrimination under Title VII by tracing their national origin to regions or subnational groups within the United States. Instead, courts have continued to treat "American" as though it were a homogeneous national origin.

To better protect employees from employment discrimination, Title VII's national origin provision should be taken one step further to include regional discrimination within the United States. The burden of proof should be on the plaintiff to show that she comes from a region of the United States with a distinct culture, history, and background. This interpretation would permit Title VII to protect against discrimination occurring among individuals sharing the same American origin, while keeping national origin within geographically circumscribed limits.

Part I of this Comment defines national origin under Title VII and describes how an employee may bring a national origin discrimination claim. Part II critiques the assumption underlying Title VII's national origin definition--that nations are homogeneous--by describing the various forms of employment discrimination that occur within the United States. Part III summarizes the relevant case law to show that courts have gradually expanded the scope of national origin discrimination protection to encompass some forms of subnational discrimination, but notes that courts have failed to do so uniformly. Finally, Part IV critiques recent proposals to amend Title VII and recommends that Title VII's national origin provision be reinterpreted to include regional discrimination.

1. NATIONAL ORIGIN DISCRIMINATION UNDER TITLE VII

   1. Definition of "National Origin"

      The key federal law prohibiting discrimination in employment is Title VII of the Civil Rights Act of 1964. (9) Title VII applies to all public and private employers with fifteen or more employees (10) and prohibits employers from discriminating on the basis of an employee's race, color, religion, sex, or national origin. (11)

      Although national origin is among the types of discrimination prohibited by Title VII, national origin discrimination was not the primary evil the authors of Title VII intended to combat. Rather, Congress's main goal was to prohibit the rampant racial discrimination that had been plaguing African Americans in the United States for over a century. (12) The only reason national origin was ultimately included as a protected class was "because it was part of the 'boilerplate' statutory language of fair employment in executive orders and legislation preceding the Civil Rights Act of 1964." (13)

      The fact that Title VII fails to define national origin underscores the relative unimportance of national origin discrimination in the minds of the statute's authors. (14) The only semblance of a definition discernible from the limited legislative history is a statement by Congressman James Roosevelt of California, in which he explained, "'[Njational origin' means national. It means the country from which you or your forebears came from. You may come from Poland, Czechoslovakia, England, France, or any other country." (15)

      Further, in the fifty years since Title VII's enactment, the Supreme Court has only once interpreted the "national origin" provision directly. (16) In Espinoza v. Farah Manufacturing Co., the Court held that "[t]he term 'national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." (17) As is evident from both the legislative history behind Title VII's national origin provision and the sole Supreme Court case interpreting it, "national origin"--at least at the beginning--was interpreted literally to refer to a specific country.

   2. Proving a National Origin Discrimination Claim

      An employee seeking to bring a national origin discrimination claim under Title VII may do so in one of two ways: as a disparate treatment claim or as a disparate impact claim.

      1. Disparate Treatment

         A claim of disparate treatment based on national origin arises when an employer treats an employee differently from the employee's coworkers because of the employee's national origin. (18) Intentional discrimination is the cornerstone of a disparate treatment claim. Examples of intentional national origin discrimination abound in the United States, particularly in the aftermath of September 11th. For example, in Hassan v. City of Ithaca, the plaintiff--who identified himself as being of "Middle Eastern descent"--alleged that after September 11, 2001, his employer began disparaging him because of his national origin, calling him and other individuals of Middle Eastern descent names such as "sand nigger," "dune coon," and "towel head." (19) The plaintiff also claimed that he received far harsher disciplinary penalties than non-Middle Eastern employees, even for conduct that had occurred more than a year before. (20) Ultimately, the plaintiff was fired. (21) This case--and other cases like it (22)--constitutes disparate treatment because the adverse employment actions in question were taken "because of" the employee's national origin. (23)

         A plaintiff may advance a disparate treatment claim under either a single- or a mixed-motive theory. Under a single-motive theory, the plaintiff must show that unlawful discrimination alone was the reason for the adverse employment actions, following the burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green. (24) Initially, a plaintiff bears the burden of proving, by a preponderance of the evidence, a prima facie case of discrimination. (25) In the context of hiring, for example, a plaintiff could meet this burden by showing (1) that she fell within a recognized national origin; (2) that she applied for and was qualified for a job for which the employer was seeking applicants; (3) that despite her qualifications, she was rejected; and (4) that the employer continued to seek equally qualified applicants or filled the position with someone outside of the plaintiff's national origin group. (26) Successfully establishing the prima facie case gives rise to an inference of discrimination.

         In order to rebut the inference of discrimination, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. (27) The defendant need not persuade the court that she was actually motivated by the proffered reasons. Rather, "[i]t is sufficient if the defendant's evidence raises a genuine issue of fact as to whether [she] discriminated against the plaintiff." (28)

         Finally, should the defendant succeed in articulating a legitimate reason for her actions, the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the reasons offered by the defendant were not genuine and were merely a pretext for discrimination. (29)

         Despite the clarity of the McDonnell Douglas framework, employment decisions are rarely made on the basis of a single factor. Rather, "most...