Other Forms of Discrimination and Defenses Under Title VII

• Pages: 149-167
• Author: George Rutherglen

149

Chapter 7

OTHER FORMS OF DISCRIMINATION

AND DEFENSES UNDER TITLE VII

Title VII extends the model of racial discrimination beyond sex

to national origin and religion. These forms of discrimination raise

distinctive issues and present further variations on the different

approaches—historical, economic, and remedial—that can be

brought to bear on employment discrimination law. With respect to

discrimination on the basis of national origin, the similarities to

racial discrimination are dominant, but with respect to

discrimination on the basis of religion, it is the differences that are

striking. Like any complex regulatory scheme, Title VII also contains

ancillary prohibitions that assist in enforcement of the statute. This

chapter discusses the prohibitions against retaliation and against

discrimination in advertising. A few defenses and limits on coverage,

which cut across all of the prohibitions in Title VII, also deserve a

brief discussion. They raise issues of practical significance and

illustrate the compromises embedded in any piece of legislation. Like

the other issues treated in this chapter, they serve as a reminder that

the logic of the law—and particularly the logic of legislation—must

remain subject to the lessons of experience.

A. Discrimination on the Basis of National Origin

The prohibition in Title VII against discrimination on the basis

of national origin raises three issues, the first more theoretical t han

the other two. The first concerns the bona fide occupational

qualification (BFOQ) 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. What accounts for the

different approach to these two, very similar forms of discrimination?

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, a seemingly neutral requirement that all

employees speak English imposes a significant disadvantage on

certain ethnic minorities, such as Hispanics.

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OTHER FORMS OF DISCRIMINATION AND

DEFENSES UNDER TITLE VII

Ch. 7

The common thread that unites all these issues is the absence of

any sharp distinction between race and national origin as commonly

understood. A plausible distinction, relying on a genetic definition of

race and a cultural definition of national origin, has no basis in fact.

Genetic variation within the conventionally accepted races is greater

than genetic variation among them. Moreover, as the concept is

usually invoked, race has as many cultural as physical components,

as revealed, for instance, by the traditional classification of

individuals of mixed race as belonging entirely to one race or another.

Relying on the concept of national origin creates still more

uncertainty, because an individual’s ancestors may come from

several different nations, and each nation may be defined in terms of

ancestry or geography. Drawing fine distinctions between the

contested concepts of race and national origin resembles—and

perhaps even requires—an embarrassing analysis of what

constitutes “purity of blood.”

1

In the abstract, it is easy to find cases in which the distinction

between race and national origin can be drawn. A person of Japanese

ancestry, for instance, might suffer discrimination based on racial

status as an Asian or discrimination based on national origin as

Japanese. Claims of discrimination on either of these grounds would

have to be supported by different evidence that varies, for instance,

with the treatment of Asians from other nations. All that these

examples establish, however, is that particular individuals have

multiple affiliations and that discrimination on the basis of any of

them might be illegal. It is obviously possible to draw these

distinctions, but not at all obvious that they should be drawn,

especially when it results in the different legal treatment of closely

related forms of discrimination.

The BFOQ for national origin squarely raises this issue, even

more so than the BFOQ for sex. A BFOQ 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.”

2

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

1

See Fullilove v. Klutznick, 448 U.S. 448, 533–35 & n.5 (1980) (Stevens, J.,

dissenting) (comparing distinctions drawn in an affirmative action program to racial

laws in Nazi Germany).

2

§ 703(e)(1), codified as 42 U.S.C. § 2000e–2(e)(1) (2018); 110 Cong. Rec. 2550,

7271 (1964).