1111 NE 25th Ave., Suite 501
Ocala, Florida 34470
James P. Tarquin, P.A Call for a FREE Consultation!352-401-7671
Lawyers Dedicated To Vindicating Employee Rights
The Employee's Voice And Advocate

Discrimination Attorneys Serving Central Florida, Including Citrus, Marion & Alachua Counties

With Employment Law Attorneys Serving Central Florida, Including Citrus, Marion & Alachua Counties

Q: Am I protected from national origin discrimination at work by federal and Florida law?

A: Yes. Title VII of the Civil Rights Act of 1964 is the federal law that protects employees from national origin discrimination in the workplace. The Florida Civil Rights Act is the Florida law that protects employees from national origin discrimination in the workplace. Both statutes make it unlawful to fire an employee or otherwise discriminate against an employee based on the employee’s national origin.

back to top

Q: Is there any difference between federal and Florida law regarding national discrimination??

A: The Florida Civil Rights Act (FCRA) is modeled after Title VII of the Civil Rights Act of 1964 (Title VII). Because the FCRA is modeled after Title VII, courts interpret the two statutes as if they were one and the FCRA is given the same construction as Title VII. This means that if an employee has been discriminated against on the basis of national origin in violation of Title VII, the employee has also been discriminated against on the basis of national origin in violation of the FCRA

back to top

Q: What is my national origin?

A: Your national origin is the country where you were born or the country from where your ancestors came. For example, if you were born in Mexico, your national origin is Mexican. Similarly, if your parents were born in Cuba, your national origin in Cuban.

back to top

Q: Are American workers protected from national origin discrimination?

A: Yes. When an individual was born in the United States, his or her national origin includes the United States. Title VII of the Civil Rights Act of 1964 protects individuals born in the United States from discrimination based on their American national origin. This means that employers cannot discriminate against American workers in favor of foreign workers.

back to top

Q: When is an employment decision based on an employee’s national origin?

A: An employment decision is based on an employee’s national origin when the employee’s national origin was a motivating factor for the decision. It is not necessary to show that an employee’s national origin was the sole or only motivating factor for the employment decision. Rather, when an employee’s national origin played a role in the employment decision, the employee has been unlawfully discriminated against on the basis of national origin even if other factors also motivated the decision.

back to top

Q: Can an employer cater to the discriminatory preferences of customers?

A: No. Under Title VII of the Civil Rights Act of 1964 (Title VII), employers are not allowed to make employment decisions based on the desire to accommodate the real or perceived national origin based discriminatory preferences of customers. Indeed, as observed by the U.S. Seventh Circuit Court of Appeals in Chaney v. Plainfield Health Ctr., 612 F.3d 908 (7th Cir. 2010), “it is now widely accepted that a company’s desire to cater to the perceived [national origin] preferences of its customers is not a defense under Title VII for treating employees differently on the basis of [national origin].”

back to top

Q: Can employers segregate employees into jobs based on their national origin?

A: No. Under Title VII of the Civil Rights Act of 1964, employers are prohibited from segregating employees into jobs or assigning employees job duties based on their national origin. For example, an employer cannot segregate employees of Vietnamese national origin into lower-paying jobs. Likewise, an employer cannot require employees of Haitian national origin to perform less desirable work assignments.

back to top

Q: Must an employer tell me that the employment decision was based on my national origin in order to bring a national origin discrimination case?

A: No. As observed by the U.S. Seventh Circuit Court of Appeals in Riordan v. Kempiners, 831 F.2d 690 (7th Cir. 1987), employers “of even minimal sophistication will neither admit discriminatory animus or leave a paper trail demonstrating it.” Thus, it is not necessary for an employer to tell you that the employment decision was made because of your national origin in order to bring a national origin discrimination case. Indeed, as observed by the U.S. First Circuit Court of Appeals in Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998), such “smoking gun” evidence is “rarely found in today’s sophisticated employment world.” Consequently, almost all employment discrimination cases are proven by circumstantial evidence.

back to top

Q: How do employers usually discriminate against employees on the basis of national origin?

A: In most national origin discrimination cases, employers discriminate against an employee on the basis of national origin by treating the employee differently or less favorably than employees from a different county of origin. Differences in treatment tend to show that the employer’s articulated reason for the employment decision was not the real reason and that national origin discrimination was the real reason. For example, an employer terminates an employee of Chinese national origin for allegedly violating its attendance policy, but the employer does not terminate employees from a different country of origin who violated the attendance policy. When an employee is treated differently or less favorably than employees from a different country of origin, the differences in treatment are evidence of the employer’s discriminatory motive and are often sufficient, standing alone, to prove a national origin discrimination case. Differences in treatment are a form of circumstantial evidence used to prove employment discrimination cases.

back to top

Q: Are there other circumstances reflecting that I was discriminated against on the basis of national origin besides differences in treatment?

A: Yes. An employee claiming national origin discrimination can rely on a broad array of evidence to prove his or her case. Courts do not require any single type of evidence to prove national origin discrimination. The different types of evidence that can be used to prove a national origin discrimination case include: (1) suspicious timing surrounding the employment decision; (2) the employer did not comply with its own policy when making the employment decision; (3) the employer selectively enforced company policy when making the employment decision; (4) the reason given by the employer for the employment decision is not worthy of belief because it is a lie, a phony reason, or without basis in fact; (5) the employer did not get the employee’s “side of the story” before making the employment decision; (6) no reason was given for the employment decision; (7) the employer “changed its story” regarding the reason for the employment decision; (8) derogatory national origin or ethnic based remarks, slurs, insults, or jokes by supervisors, managers, or an employee involved in making the employment decision; and (9) the employer discriminated against other employees on the basis of national origin. These different types of evidence are a form of circumstantial evidence used to prove employment discrimination cases.

back to top

Q: Are derogatory national origin or ethnic based remarks “smoking gun” evidence of national origin discrimination?

A: Depending on the circumstances, such as when the comments were made and the substance of the comments, derogatory national origin or ethnic based remarks, slurs, insults, or jokes by an employee involved in making the challenged employment decision can constitute “smoking gun” evidence of national origin discrimination. Even if not characterized by a court as “smoking gun” or direct evidence of national origin discrimination, such remarks are generally sufficient, standing alone, to enable an employee to bring his or her national origin discrimination case before a jury.

back to top

Q: Is the employer’s discriminatory treatment of other employees relevant to my national origin discrimination case?

A: Yes. Evidence regarding your employer’s discriminatory treatment of other employees is highly relevant in establishing the employer’s discriminatory motive towards you. As observed by the U.S. Sixth Circuit Court of Appeals in EEOC v. Roadway Exp., Inc., 261 F.3d 634 (6th Cir. 2001), “evidence that an employer discriminated in one situation . . . is relevant to a determination of whether the employer discriminated in other circumstances.” An employer’s acts of discrimination against other employees on the basis of national origin are evidence that the employer discriminated against you on the basis of national origin.

back to top

Q: Are disparaging remarks about my accent evidence of national origin discrimination?

A: Yes. As observed by the U.S. District Court for the Eastern District of New York in Pibouin v. CA, Inc., 867 F.Supp.2d 315 (E.D. N.Y. 2012), “accents are perhaps the most recognizable indicator of one’s national origin, and accent and national origin are obviously intertwined in many cases.” Courts have consistently recognized that disparaging remarks about an employee’s accent, including mocking an employee’s accent or manner of speaking, by an employee involved in making the challenged employment decision are evidence of discriminatory intent based on national origin. For example, courts have ruled that remarks by decision-makers that an employee should not work at the front desk because “people would possibly be offended because of his accent” and an employee would never be promoted because of her “thick accent” showed discriminatory intent on the basis of national origin.

back to top

Q: Is an employment decision based on my foreign accent a form of unlawful national origin discrimination?

A: Courts have determined that unless an employee’s accent interferes with an employee’s job performance, it cannot legally be the basis for an adverse employment action, such as a demotion or discharge. In most cases, courts have found that an employee’s accent did not interfere with his or her work performance and ruled that employment decisions based on the employee’s accent constituted unlawful national origin discrimination. For example, the U.S. Tenth Circuit Court of Appeals in Carino v. Univ. of Oklahoma Bd. of Regents, 750 F.2d 815 (10th Cir. 1984) rejected the employer’s argument that the demotion of an employee with a Filipino accent was justified because his accent interfered with his job performance. In finding that the employee’s accent did not interfere with his work performance, the Tenth Circuit explained that a “foreign accent” that does not interfere with an employee’s “ability to perform the duties of the position” is “not a legitimate justification” for an adverse employment action.

back to top

Q: Can I prove national origin discrimination by showing that a decision-maker had animosity or hostility towards my national origin?

A: Yes. Evidence that an employee involved in making an employment decision had animosity or hostility towards an employee’s national origin indicates that the decision was discriminatorily based on the employee’s national origin. In Darchak v. City of Chicago Bd. of Education, 580 F.3d 622 (7th Cir. 2009), a teacher of Polish descent claimed that her contract was not renewed because the school’s principal had animosity or hostility towards Polish people. In support of her national origin discrimination claim, the teacher claimed that the principal told her that Hispanic students are “better than Polish” and “deserve more than Polish people.” The teacher also alleged that the principal called her a “stupid Polack.” The Seventh Circuit found that the principal’s alleged remarks were sufficient evidence to prove that the teacher’s Polish national origin motivated the decision not to renew her contract.

back to top

Q: Can an employee who is from the same country as me discriminate against me on the basis of national origin?

A: Yes. Employers frequently argue that an employee cannot be discriminated against on the basis of national origin by another employee from the same country of origin. For example, employers claim that an employee from Puerto Rico cannot be discriminated against on the basis of national origin by another employee from Puerto Rico. However, this argument ignores U.S. Supreme Court precedent. In Castaneda v. Partida, 430 U.S. 482 (1977), the Court explained that “[b]ecause of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.” In harmony with Supreme Court precedent, courts have consistently ruled that an employee can be discriminated against on the basis of national origin by another employee from the same country of origin.

back to top

Q: Can employers maintain an English-only language policy?

A: Some employers maintain an English-only language policy and require employees to use English at work. The U.S. Equal Employment Opportunity Commission, the federal agency responsible for interpreting and enforcing Title VII of the Civil Rights Act of 1964 (Title VII), has determined that a “rule requiring employees to speak English in the workplace at all times” presumptively violates Title VII’s mandate against national origin discrimination. Courts have upheld English-only rules that only apply in limited circumstances and when supported by an adequate business justification such as job performance or safety. However, as the U.S. District Court for the Northern District of Texas explained in EEOC v. Premier Operating Servs., 113 F.Supp.2d 1066 (N.D. Tex. 2000), “a blanket policy or practice prohibiting the speaking of a language other than English on an employer’s premises at all times, except when speaking to a non-English speaking customer, violates Title VII’s prohibition against discrimination based on national origin.”

back to top

Q: Do employers have the burden of proving a business necessity for an English-only language policy?

A: Yes. As explained by the U.S. Tenth Circuit Court of Appeals in Maldonado v. City of Altus, 433 F.3d 1294 (10th Cir. 2006), employers bear the burden of demonstrating that their English-only language policy is supported by an “adequate business justification.” The Maldonado court found that the employer failed to establish a business necessity for its English-only rule because “there was no written record of any communication problems, morale problems, or safety problems resulting from the use of languages other than English prior to implementation of the policy.”

back to top

Q: Am I protected from harassment on the basis of national origin?

A: Yes. As determined by the U.S. Supreme Court in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986), Title VII of the Civil Rights Act of 1964 (Title VII) “affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult” on the basis of national origin. In applying Meritor, courts have determined that national origin harassment is a form of national origin discrimination prohibited by Title VII. Under Title VII, national origin harassment that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile or abusive work environment is an unlawful employment practice.

back to top

Q: Must I show that the harasser knew my national origin in order bring a national origin harassment case?

A: No. In EEOC v. WC & M Enterprises, Inc., 496 F.3d 393 (5th Cir. 2007), the U.S. Fifth Circuit Court of Appeals ruled that a hostile work environment harassment case based on national origin does not require proof that the harasser “knew the particular national origin group to which the [employee] belonged.” Rather, the Fifth Circuit determined, “it is enough to show that the [employee] was treated differently because of his or her foreign accent, appearance, or physical characteristics.” Thus, even if the harasser does not know the particular national origin to which you belong, evidence that the harasser subjected you to ridicule or abuse because of your foreign accent, appearance, or physical characteristics is sufficient to establish that you were harassed on the basis of national origin.

back to top

Q: Can an English-only language policy contribute to a hostile work environment on the basis of national origin??

A: Yes. In Garcia v. Garland Independent School District, 2013 WL 5299264 (N.D. Tex. 2013), the U.S. District Court for the Northern District of Texas found that a supervisor’s “blanket policy” prohibiting the use of Spanish supported the employee’s claim that she was harassed on the basis of nation origin in violation of Title VII of the Civil Rights Act of 1964. The Garcia court reasoned that the supervisor’s prohibition of the use of Spanish “at all times” was an expression of hostility towards the employee because of her Hispanic national origin and contributed to the creation of a hostile work environment on the basis of national origin.

back to top

Q: When an employer’s harassment policy is in English must the policy be translated into Spanish for employees who speak and read only Spanish?

A: Yes. Employers are required to maintain a written policy prohibiting harassment of employees on the basis of race, color, national origin, sex, religion, age, and disability. An employer’s anti-harassment policy must also contain a complaint procedure for employees to report allegations of harassment. When an employer’s anti-harassment policy is in English, courts have determined that employers must translate the policy into Spanish for employees who speak and read only Spanish. Courts have reasoned that translation of the employer’s anti-harassment policy is required because if an employee who speaks and reads only Spanish has a complaint about harassment, the employee is unable to bring the complaint to the person identified in the policy to receive the complaint because the anti-harassment policy is in English.

back to top

Q: Can disparaging remarks about my accent contribute to a hostile work environment?

A: Yes. Evidence that an employee was subjected to disparaging remarks about his or her accent, including mocking the employee’s accent or manner of speaking, can be used to prove that the employee worked in a hostile work environment on the basis of national origin. In Constantin v. New York City Fire Dept., 2009 WL 3053851 (S.D. N.Y. 2009), the U.S. District Court for the Southern District of New York concluded that ridicule of an employee’s accent was sufficient evidence to establish that she was subjected to hostile work environment harassment on the basis of national origin where a supervisor asked the employee “if she could speak and write in English, threw paperwork at her, commanded her to read in front of colleagues, and required that she repeat certain words that emphasized her ‘harsh’ accent to elicit laughter.”

back to top

Q: Can I bring separate claims for national origin discrimination and national origin harassment in the same lawsuit?

A: Yes. Title VII of the Civil Rights Act of 1964 provides a basis for independent claims of national origin discrimination and national origin harassment. When an employee is subjected to national origin harassment and an adverse employment action on the basis of national origin, the employee can bring a claim for national origin harassment and a claim for national origin discrimination based on the adverse employment action. For example, when an employee claims that he or she was harassed on the basis of national origin and fired on the basis of national origin, the employee can assert claims for national origin harassment and national origin based discriminatory discharge in the same lawsuit.

back to top

Q: Am I protected from retaliation for complaining about national origin discrimination at work?

A: Yes. Under Title VII of the Civil Rights Act of 1964 (Title VII), employees are protected from retaliation when they complain about perceived national origin discrimination or harassment in the workplace. Once an employee complains about national origin discrimination or harassment at work, the employee has engaged in statutorily protected activity under Title VII and an employer is prohibited from subjecting the employee to an adverse employment action, such as a reduction in pay or discharge, because of the employee’s complaint.

back to top

Q: Do You Have More Questions Or Believe You Have A Case?

A: If you have more questions or believe that you have an national origin discrimination case, please contact our office to speak with an employment law lawyer. You will never have to pay to speak with an employment law attorney here. We can help you take action to protect and vindicate your employee rights. We take national origin discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

back to top

Designed and Powered by NextClient

© 2015 - 2019 James P. Tarquin, P.A. All rights reserved.
This Custom WebShop™ attorney website is designed
by NextClient.com.

Contact Form Tab Close Menu