National Origin Discrimination

Author:George Rutherglen

The prohibition in Title VII against discrimination on the basis of national origin raises three issues, the first more theoretical than the other two. The first concerns the BFOQ exception for national origin.

There is no corresponding exception for race, yet classifications on the basis of race closely resemble those on the basis of national origin.

Congress has left the different approach to these two, very similar forms of discrimination to be explained and reconciled by the courts.

The second issue concerns the uncertain relationship between national origin and citizenship. The law is now clear that Title VII does not prohibit discrimination based on citizenship, or more precisely, lack of citizenship, which often disqualifies an individual from working under the immigration laws. Nevertheless, status as an alien is inevitably intertwined with national origin because virtually all aliens have a foreign national origin. The third issue concerns the impact of "English only" rules in the workplace. Speaking a foreign language again correlates strongly with foreign national origin, so that a seemingly neutral requirement that all employees speak English imposes a significant disadvantage on certain ethnic minorities, such as Hispanics.

The BFOQ for national origin squarely raises the issue of how discrimination on this ground differs from discrimination on the basis of race. The BFOQ for national origin, like the BFOQ for sex, is available only when an otherwise prohibited characteristic is "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.'[368] The BFOQ creates a narrow exception to the prohibitions against discrimination on the basis of sex, national origin, and religion, but not to the prohibition against discrimination on the basis of race. The omission of a BFOQ for race reflects a deliberate congressional decision to prohibit all racial classifications in employment. It also creates the anomaly that some classifications on the basis of national origin are permissible while similar classifications on the basis of race are not. At least in constitutional law, the two forms of discrimination have been considered so similar that the prohibitions against each have been regarded as equivalent.[369]

As a matter of legal doctrine, the anomaly created by the BFOQ for national origin has been almost entirely eliminated by decisions giving the BFOQ an exceedingly...

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