Are Employees Born In The U.S. Protected Against National Origin Discrimination?
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of national origin. Unfortunately, Title VII does not define the term “national origin.” However, the U.S. Supreme Court in Espinoza v. Farah Manufacturing Company., Inc., 414 U.S. 86 (1973) defined national origin as the “country where a person was born, or, more broadly, the country from which his or her ancestors came.” Under the Supreme Court’s definition of national origin, individuals are protected against national origin discrimination based on where they were born or from where their ancestors came. When an individual was born in the United States, his or her national origin includes the United States. Thus, an individual born in the United States is protected against national origin discrimination based on his or her American national origin. The U.S. Eleventh Circuit Court of Appeals decision in Kidd v. Mando American Corp., 731 F.3d 1196 (11th Cir. 2013) illustrates that Title VII protects employees born in the United States against national origin discrimination.
In Kidd, Leanne Kidd (Kidd) brought a lawsuit against Mando America Corporation (Mando) pursuant to Title VII claiming that she was denied promotion because of her American national origin. Mando is a Korean-owned auto parts manufacturer whose management was composed entirely of Koreans. Kidd was employed by Mando as an accountant. When the assistant accounting manager was fired, Kidd assumed the duties of the assistant accounting manager position while continuing to perform her customary accountant duties. Eventually, Mando hired a Korean male, B.W. Seo (Seo), to replace the employee who had been terminated. Although she expressed interest in the assistant accounting manager position, Kidd was not interviewed for the position or notified that Mando was seeking a replacement to fill the position. When Kidd learned that the assistant accounting manager position had been filled, she spoke with the Human Resources Manager about the failure to promote her to the position.
The Human Resources Manager informed Kidd that she had shown Mando’s President and Accounting Manager four separate resumes of qualified American candidates for the assistant accounting manager position, but they refused to look at the resumes and refused to even consider an American candidate for the position. Kidd further claimed that another member of the human resources department informed her that there would never be any American management in the company and there would always be Korean management. After the assistant accounting manager position was filled, Kidd began losing the supervisory duties she had assumed before the position was filled and ultimately resigned her employment. The trial court dismissed Kidd’s discriminatory failure to promote claim. On appeal, the Eleventh Circuit reversed the trial court’s ruling.
At the outset of its opinion, the Eleventh Circuit found that the remarks by the human resources department employees were sufficient to establish that Kidd was not promoted to the assistant accounting manager position because of her national origin. In other words, the remarks by the human resources department employees demonstrated that Mando selected Seo for the position because he is Korean. However, the Eleventh Circuit determined that the threshold question in the case was whether the remarks constituted admissible evidence that Kidd was allowed to use in order to prove her discriminatory failure to promote claim. The remarks by the employees, the Eleventh Circuit observed, were hearsay and Kidd failed to identify an evidentiary basis under which the remarks were admissible. The admissibility of the remarks, the Eleventh Circuit explained, controlled resolution of Kidd’s discriminatory failure to promote claim. If the remarks were admissible, then Kidd was entitled to present her discriminatory failure to promote claim to a jury for resolution. If the remarks were not admissible, then the trial court properly dismissed Kidd’s discriminatory failure to promote claim. Consequently, the Eleventh Circuit remanded the case back to the trial court for a determination as to whether the remarks were admissible.
Kidd demonstrates that employers cannot discriminate against employees because they were born in the United States. Unfortunately, some employers give preferential treatment to employees who were not born in the United States and may not, as alleged in Kidd, even consider employees from the United States for supervisory or management positions. Because Title VII forbids discrimination against any individual on the basis of national origin, employers cannot discriminate against employees born in the United States in favor of individuals who are from another country.
We have extensive experience representing employees who have been the victims of national origin discrimination or harassment in the workplace. If you have questions regarding national origin discrimination or harassment, please contact our office for a free consultation.