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									P O P U L A R         G O V E R N M E N T

Emerging Issues: National Origin
Discrimination in Employment
Joanna Carey Smith

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!
                                                                               ver the past decade, the United
—Inscription from Statue of Liberty1
                                                                       O       States of America has welcomed
                                                                               more than 9 million legal immi-
                                                                       grants.2 In the year 2000, nearly 51
                                                                       million temporary visitors came to the
                                                                       United States as tourists, business people,
                                                                       students, exchange visitors, specialized
                                                                       workers, and others.3 Further, the
                                                                       Immigration and Naturalization Service
                                                                       estimates that in 1996 there were more
                                                                       than 5 million illegal immigrants in
                                                                       the country.4
                                                                           This information underscores the
                                                                       special history of the United States.
                                                                       Almost all Americans can cite foreign
                                                                       countries as the homelands of their
                                                                       ancestors, who traveled to the land of
                                                                       opportunity. Such immigration has re-
                                                                       sulted in the much-used descriptions of
                                                                       America as a “melting pot” and “tossed
                                                                       salad.” This shared history of starting
                                                                       anew has given America a national
                                                                       character unlike any other country.
                                                                       Accepting people from other places is
                                                                       ingrained in the national psyche.
                                                                           North Carolina also is undergoing a
                                                                       shift in population demographics due to
                                                                       immigration. Within the state, Latinos
                                                                       are the fastest-growing population
                                                                       group.5 North Carolina ranks fifth in
                                                The author is an       the nation in the number of migrant and
                                                associate university   seasonal farm workers.
                                                counsel at UNC             Despite the country’s long history
                                                Chapel Hill and an
                                                                       of welcoming immigrants, the terrorist
                                                adjunct instructor
                                                                       attacks on September 11, 2001, have
                                                in the School
                                                of Government,         affected each American individually and
                                                specializing in        all Americans collectively. Many are
                                                public employment      more suspicious of “strangers”—
                                                law. Contact her at    anyone who does not seem American—
                                              even as heterogeneous as Americans

                                                                                               fall 2002       17
are. More telling, Americans have                With this background it is not sur-      one can infer that national origin encom-
witnessed a retraction of their personal     prising that questions related to discrim-   passes accent, affiliation, “alienage”
liberties in response to the tragedy.        ination based on national origin have        (alien status), ancestry, and appearance.
They must submit to increased security       arisen. This article addresses the laws          There are some exceptions to this
checks as they travel, and many are          prohibiting national origin discrimination   broad prohibition on discrimination.
more suspicious of those traveling           in employment, surveys relevant cases,       For one, an employer may refuse to hire
with them.6                                  and suggests steps that public-sector        or promote a person, regardless of his
    At the federal level, Congress has       employers can take to demonstrate their      or her national origin, when perform-
enacted the USA PATRIOT Act, which           commitment to diversity and tolerance        ance of the duties of the position, or
gives broad authority to law enforcement     in the workplace.                                               access to the premises
officers to monitor and arrest people                                                                        where any of the
allegedly linked to terrorist activities,                                                                    duties are to be
                                             Federal Laws and
restricts the ability of some people to                                                                      performed, is subject
work in certain environments or with
                                             Regulations on                                                  to any federal require-
certain material, and allows disclosure      National Origin                                                 ment imposed in the
of students’ and employees’ records to       Discrimination                                                  interest of U.S. na-
federal law enforcement officers                                                                             tional security, and
without their consent.7                      Title VII of the Civil                                          the person in question
    At the state level, North Carolina has   Rights Act                                                      does not fulfill that
been implementing a multifaceted re-         The comprehensive                                               requirement.14 Note
sponse to potential bioterrorism attacks     federal law prohib-                                             that this national
since 1999. Through its Division of          iting discrimination                                            security exception is
Public Health, the state has dedicated       in employment is                                                not limited to national
resources to developing a statewide re-      Title VII of the Civil                                          origin but includes
sponse plan, has conducted bioterrorism      Rights Act.12 It ap-                                            any restriction im-
training for local governments, and has
                                                                          Despite the country’s long         posed by the appli-
                                             plies to all public and
provided technical assistance to local       private employers            history of welcoming               cable federal statute or
governments developing their own re-         with more than fifteen                                          executive order.
sponse plans. The state also has author-
                                                                          immigrants,the terrorist               An employer also
                                             employees. Section
ized funds for forming regional teams to     2000e-2 of Title VII         attacks on September 11,           may refuse to hire or
conduct public health surveillance, for      makes it unlawful for                                           promote a person
purchasing information technology
                                                                          2001,have affected each            because he or she fails
                                             employers to fail to
linking every local health department to     hire, refuse to hire,        American individually and all to meet a bona fide
the federal Centers for Disease Control      discharge, or discrim-                                          occupational qualifi-
and Prevention’s Health Alert Network,
                                                                          Americans collectively.            cation (BFOQ). A
                                             inate against people
for expanding the state’s public health      because of their race,                                          “BFOQ” is a require-
laboratory, and for creating a state         color, religion, sex, or national origin.    ment reasonably necessary to the nor-
bioterrorism team composed of experts        Further, employers may not “limit,           mal operation of a particular business
in law enforcement, health, natural          segregate, or classify” employees or job     or enterprise. For example, a restaurant
resources, environment, agriculture,         applicants in any way that would deprive may impose certain hairstyle restrictions
transportation, research, and informa-       them of employment opportunities or          to ensure compliance with state health
tion technology.8                            adversely affect their status as an em-      codes, and such restrictions may affect
    Additionally, North Carolina has en-     ployee, because of their race, color, re-    certain ethnic or religious groups.15 The
acted a law creating a statewide registry    ligion, sex, or national origin.             EEOC narrowly interprets the BFOQ
of laboratories that keep biological and         “National origin” is not defined in      exception, however. If an employer
chemical agents.9 The law establishes        the statute. However, the Equal Em-          adopted a policy restricting employment
civil penalties for those who violate the    ployment Opportunity Commission              of people of a particular national origin,
registry requirements.10                     (EEOC), the agency that enforces Title       the employer would have to demon-
    Most recently the state has received     VII, has issued detailed regulations         strate how the policy was necessary to
federal funds that will be used to imple-    interpreting the statute, which give         the normal operation of its business.
ment a hospital bioterrorism prepared-       more substance to the term. The EEOC         There are few positions or services in
ness program, to continue to develop         defines “national origin discrimination” which a particular national origin will
and expand critical public health infra-     as denial of equal employment opportu- interfere with the normal operations of
structure, to review state laws to deter-    nity because of a person’s, or his or her    an employer, including a government
mine whether they provide for an             ancestor’s, place of origin; or because a    agency or a public school or university.16
adequate public health response to           person has the physical, cultural, or            The EEOC also has defined the types
bioterrorism, and to conduct planning        linguistic characteristics of a national     of characteristics protected by Title VII.
and training efforts.11                      origin group.13 Through this definition      The EEOC closely examines charges

18   p o p u l a r g ov e r n m e n t
alleging that individuals have been                                                         [it] to be essential for an employer to do
denied equal employment opportunity                                                         business with an agency or department
because of such national origin consid-                                                     of the Federal, State, or local govern-
erations as the following:                                                                  ment.”25 IRCA also expressly allows an
                                                                                            employer to give preference to citizens
• Marriage to or association with
                                                                                            over noncitizens in hiring, recruitment,
  people of a national origin group
                                                                                            or fee-based referral for employment if
• Membership in, or association with,
                                                                                            two applicants are equally qualified.26
  an organization identified with or
  seeking to promote the interest of
                                                                                            Section 1981 of the U.S. Code
  national origin groups
                                                                                            Section 1981 of the U.S. Code, which
• Attendance at or participa-
                                                                                            was enacted to implement the Thirteenth
  tion in schools, churches,
                                                                                            Amendment to the U.S. Constitution,
  temples, or mosques
                                                                                            prohibits race discrimination in employ-
  generally used by persons of
                                                                                            ment contracts.27 This law originated in
  a national origin group
                                                                                            the Civil Rights Act of 1866 and the
• A person’s name or his or
                                                                                            Voting Rights Act of 1870.28 It provides
  her spouse’s name being
                                                                                            in part that “all persons within the
  associated with a national
                                                                                            jurisdiction of the United States shall
  origin group17
                                                                                            have the same right in every State and
   Additionally, EEOC regula-                                                               Territory to make and enforce contracts
tions prohibit harassment based                                                             . . . as is enjoyed by white citizens. . . .”29
on national origin, using the                                                               “Make and enforce contracts” is de-
same standards as those applied                                                             fined to include “making, performance,
to sexual and racial harass-                                                                modification, and termination of
ment.18 Further, EEOC regula-                                                               contracts, and the enjoyment of all
tions presume that requiring                                                                benefits, privileges, terms, and condi-
employees to speak only                                                                     tions of the contractual relationship.”30
English in the workplace, if                                                                In other words, any involvement in a
applied to all employees all the                                                            contractual relationship is protected.
time, is a burdensome term of                                                                    Section 1981 applies to all public or
employment, and prejudices a                                                                private employers; no minimum number
person’s employment oppor-                                                                  of employees is required.31 Although the
tunities on the basis of national origin.19                                                 text of the law appears to prohibit only
English-only requirements are discussed                                                     race discrimination, the Supreme Court
further on page 21.                                                                         has concluded that Congress also in-
                                                                                            tended to protect those “identifiable
Immigration Reform and Control Act                                                          classes of persons who are subjected to
The Immigration Reform and Control                                                          intentional discrimination solely because
Act (IRCA) not only prohibits national                                                      of their ancestry or ethnic characteris-
origin discrimination20 but also                                                            tics.”32 A person therefore may be able to
prohibits discrimination on the basis of                                                    state a claim under Section 1981 on the
citizenship against citizens or nationals                                                   basis of national origin discrimination.
of the United States and “intending                                                              The Supreme Court also has held
citizens.”21 To claim protection under        addresses any potential overlap with          that Section 1981 prohibits discrimina-
the act, a noncitizen must be an alien        EEOC complaints, providing that an            tion against aliens by public entities.33
who (1) has been lawfully admitted as a       employer facing a charge of discrimina-       Further, the Fourth Circuit Court of
permanent resident, (2) has been              tion under Title VII will not face a charge   Appeals, the federal appeals court with
lawfully admitted as a temporary              of an unfair, immigration-related em-         jurisdiction over North Carolina, has
resident, (3) has been admitted as a          ployment practice under IRCA.24 Further,      examined whether Section 1981 pro-
refugee, or (4) has been granted              IRCA permits an employer to discrimi-         hibits private discrimination on the
asylum.22 The protections granted by          nate on the basis of citizenship if it is     basis of alienage.34 The court concluded
IRCA do not apply to aliens who do not        “otherwise required to comply with law,       that the Voting Rights Act of 1870
seek naturalization within certain time       regulation, or executive order, or required   barred such discrimination.35 The court
limits.23                                     by Federal, State, or local government        reasoned that “it would be strange in-
    IRCA applies to all public and pri-       contract.” Likewise, an employer may          deed to hold . . . that this same grant of
vate employers with three or more em-         discriminate on the basis of citizenship      rights to ‘all persons within the jurisdic-
ployees. However, IRCA specifically           when “the Attorney General determines         tion of the United States’ does not also

                                                                                                                      fall 2002         19
confer on aliens protection against pri-     • has been discharged from the Armed           tion or General Statutes.53 The EEPA
vate discrimination in the making of           Services of the United States under          contains such a statement. However, the
contracts—under the plain language of          dishonorable conditions.44                   EEPA does not describe any remedies.54
the provision, ‘all persons,’ blacks and                                                    A court addressing a complaint of
                                                If a government agency performs re-
aliens, receive the same protections                                                        wrongful discharge therefore will look
                                             search using select agents, it should adopt
against discrimination.”36 In other words,                                                  to Title VII cases in analyzing whether
                                             a policy or procedure to ensure that the
a person may state a viable claim under                                                     the discharge was discriminatory and in
                                             foregoing restrictions are in place and
Section 1981 against a public or private                                                    fashioning an appropriate remedy. As
                                             monitored so that no person is hired in
employer if he or she can demonstrate                                                       yet, though, there have been no reported
                                             violation of the USA PATRIOT Act
that he or she was prohibited from                                                          North Carolina cases on wrongful
                                             provisions.45 Violations of the restrictions
entering into an employment contract                                                        discharge based on national origin.
                                             may result in a fine or imprisonment.46
solely on the basis of alienage.
                                                                                            Cases on National Origin
USA PATRIOT Act                              State Laws and Regulations on                  Discrimination
Congress enacted the USA PATRIOT             National Origin Discrimination                 Many cases in both the private and the
Act “to deter and punish terrorist acts
                                             North Carolina likewise prohibits dis-         public employment context have further
in the United States and around the
                                             crimination based on national origin.          analyzed (and occasionally clarified) the
world, to enhance law enforcement in-
                                             The state constitution states that “no         definition of national origin discrimina-
vestigatory tools, and for other pur-
                                             person shall be denied the equal protec-       tion under Title VII.
poses.”37 Most of the act is not relevant
                                             tion of the law; nor shall any person be          Courts have recognized two general
to employment discrimination based on
                                             subjected to discrimination by the State       kinds of claims under Title VII: dis-
national origin. However, one provision
                                             because of race, color, religion, or na-       parate treatment and disparate impact.
concerning biological weapons prohibits
                                             tional origin.”47 In the employment            Claims of “disparate treatment” based
some people, including certain aliens,
                                             context, the state has enacted the State       on national origin arise when an em-
from working with “select agents” (sub-
                                             Personnel Act (SPA)48 and the Equal            ployer treats an individual or a group
stances such as certain viruses, bacteria,
                                             Employment Practices Act (EEPA),49             differently from others because of
rickettsiae, fungi, toxins, and recom-
                                             both of which prohibit discrimination          national origin. These claims often are
binant organisms).38 First, the act
                                             based on national origin. The SPA              referred to as “intentional discrimina-
prohibits any “alien illegally or unlaw-
                                             governs conditions of employment for           tion” claims. To state a claim of dis-
fully in the United States” from working
                                             most state employees, including classi-        parate treatment, a plaintiff must
with such agents.39 Second, it prohibits
                                             fication of positions, compensation            initially show that he or she is a member
a national of a country designated by
                                             ranges, leave earnings and retention,          of the protected class, that he or she was
the secretary of state as a supporter of
                                             and eligibility to file grievances. The        qualified for the position in question,
international terrorism from working
                                             SPA also has provisions applicable to all      that he or she suffered an adverse
with select agents.40 The term “alien” as
                                             state employees, such as those pertaining      employment action, and that there is a
used in the USA PATRIOT Act has the
                                             to the privacy of personnel records. An        connection between his or her protected
same meaning as in the Immigration
                                             employee subject to the grievance and          status and the action taken (or that he
and Nationality Act41—that is, “any
                                             dispute resolution procedures estab-           or she was replaced by someone not in
person not a citizen or national of the
                                             lished by the SPA must bring a national        the protected class). Claims of “dispar-
United States.”42
                                             origin complaint under it.50                   ate impact” based on national origin
    The USA PATRIOT Act further bars
                                                 Also for employees subject to the SPA,     arise when a facially neutral policy or
any person, regardless of alienage, from
                                             the Office of State Personnel has imple-       practice that is applied uniformly never-
working with select agents if the person
                                             mented an Unlawful Workplace Harass-           theless affects a group negatively. To
• is under indictment for a crime            ment Policy that covers national origin        state a claim of disparate impact, a
  punishable by imprisonment for a           harassment and provides a mechanism            person must allege that he or she is a
  term exceeding one year;                   for resolution of complaints.51                member of a protected class and that an
• has been convicted in any court of a           Any other North Carolina employee          employer’s policy or practice has nega-
  crime punishable by imprisonment           of a private or public employer can            tively affected that class.
  for a term exceeding one year;             allege that his or her discharge violated         In either case a person must make
• is a fugitive from justice;                the public policy against national origin      more than a conclusory allegation of
• is an unlawful user of any controlled      discrimination stated in the EEPA.52 To        discrimination. The person may not
  substance (as defined in Section           bring a complaint of wrongful discharge        merely state that he or she is of a certain
  102 of the Controlled Substances           in violation of public policy, a person        national origin and has suffered an
  Act);43                                    must show that he or she was perform-          adverse employment action. The person
• has been adjudicated as a “mental          ing his or her job competently and was         must provide information that supports
  defective” or has been committed to        discharged in violation of an express          a connection between the two facts.55
  any mental institution; or                 policy in the North Carolina Constitu-            There have been no reported cases

20   p o p u l a r g ov e r n m e n t
                                                                                         train Spanish-speaking employees in the
                                                                                         use of English; and permitting non-
                                                                                         Spanish-speaking supervisors to under-
                                                                                         stand and oversee the work of their
                                                                                         subordinates better. The plaintiff in the
                                                                                         case was a bilingual employee who was
                                                                                         eventually fired for continuing to speak
                                                                                         Spanish at work. The Fifth Circuit
                                                                                         Court held that Title VII did not protect
                                                                                         language preferences and that the em-
                                                                                         ployer’s restriction did not amount to
                                                                                         national origin discrimination.
                                                                                             In Garcia v. Spun Steak Co., the
                                                                                         Ninth Circuit Court of Appeals also
                                                                                         upheld an employer rule that employees
                                                                                         speak English while on the job.61 The
                                                                                         rule was established to promote racial
                                                                                         harmony and enhance worker safety.
                                                                                         The court stated that Congress enacted
                                                                                         Title VII with the expectation that
                                                                                         management prerogatives would be left
                                                                                         undisturbed to the greatest extent
                                                                                         possible. The court then reasoned that
                                                                                         Title VII does not confer substantive
                                                                                         privileges and that an employer is not
                                                                                         required to allow employees to express
                                                                                         their cultural identity. The court held
                                                                                         that the bilingual employee was not
                                                                                         denied a privilege of employment by the
                                                                                         English-only policy because it did not
                                                                                         have a significant impact on a protected
                                                                                         group of employees.62 The court
                                                                                         extended its reasoning from an earlier
                                                                                         case in which it had held that a bilingual
                                                                                         Hispanic radio host could not sue for
                                                                                         being discharged because he refused to
                                                                                         speak only English on his program.63
                                                                                             A district court in the Fourth Circuit
interpreting North Carolina law in this                                                  accepted similar reasoning in a case
area. However, the federal Title VII                                                     brought by bilingual employees who
cases are informative because North                                                      challenged the employer-bank’s English-
Carolina courts are likely to use federal      EEOC regulations allow an employer        only requirement.64 The employees were
case law in analyzing state-based claims.   to require that employees speak only         permitted to speak Spanish only to
                                            English at certain times if the employer     assist Spanish-speaking customers; they
Always Speaking English                     shows that a “business necessity”            were otherwise required to speak English.
As noted earlier, EEOC regulations state    justifies such a requirement.”59 Courts      The court held that the policy did not
that requirements that employees speak      have repeatedly found a sufficient           constitute national origin discrimination.
only English in the workplace all the       business necessity to justify English-only   It accepted the reasoning from Garcia v.
time, in the absence of a BFOQ, will be     rules. Garcia v. Gloor was the first case    Spun Steak Co., stating that an employer
presumed to violate Title VII.56 For        to address the issue substantively.60 In     has a right to define the parameters of
example, one federal district court held    this case the employer prohibited em-        the privilege of employment, defining
that dismissal of an employee for           ployees from speaking Spanish on the         when and where employees may con-
speaking two words of Spanish violated      job unless they were communicating           verse while on the job, and prohibiting
Title VII because the employer could        with Spanish-speaking customers. The         some manners of speech. The court also
provide no business justification for so    employer gave several business reasons       stated, “[D]enying bilingual employees
rigidly restricting the use of Spanish.57   for the prohibition: making all employee     the opportunity to speak Spanish on the
Other courts have supported the             communications understandable to             job is not a violation of Title VII. There
EEOC’s interpretation.58                    English-speaking customers; helping          is nothing in Title VII which protects or

                                                                                                                fall 2002       21
provides that an employee has a right          did not know the employee’s national          consider communication skills in
to speak his or her native tongue while        origin but did know that the employee         deciding which customer service repre-
on the job.”65                                 had a foreign accent.71 The employee          sentatives to terminate in a workforce
   The Garcia v. Spun Steak Co. analysis       was a native of Poland who had earned         reduction, because customer service
also was applied in a Pennsylvania case        a master’s degree in communications           positions necessarily require communi-
in which a district court held that the        and whose knowledge of English ex-            cation with the public.76 Also, employers
employer-church’s English-only rule did        ceeded that of the average adult Ameri-       may examine an employee’s history of
not constitute national origin discrimi-       can, even though she retained a pro-          insubordination and interpersonal diffi-
nation when applied to a bilingual Polish-     nounced accent. The district court found      culties with co-workers when considering
American employee.66 According to the          that she had been denied two promo-           whether or not to take disciplinary
court, the church had a valid business         tions because of her accent, “which           action. A person’s speaking with an
justification for the rule: it was trying to   flowed from her national origin.”72           accent does not shield him or her from
improve interpersonal relations at the             In a demotion case, the Tenth Circuit     the reasonable work expectations of the
church and prevent alienation of church        Court of Appeals held that an employee        employer.77
employees from church members.67               of Filipino origin was improperly de-             A federal district court in North
   In light of these cases, an employer’s      moted from laboratory supervisor to           Carolina held that an insurance salesman
English-only rule may be upheld if the         laboratory technician with less responsi-     who spoke with a strong accent was
employer has a legitimate work-related         bility because of opinions held by some       discharged for reasons other than his
basis for the rule. For example:               faculty members that his national origin      accent.78 Although the employee had
                                               and accent made him unsuitable as a           been a successful insurance agent before
• Promoting harmony among racial or
                                               supervisor.73                                 and after employment with the de-
  national origin groups
                                                   In a termination case, the Eighth         fendant insurance company, the court
• Enhancing workers’ safety                    Circuit Court of Appeals held that there      found that he was terminated for not
• Enhancing product quality                    was an inference that a supervisor’s ill      selling enough insurance. The court
• Preventing employees from using              will played a role in the decision to dis-    further found that he had failed to
  language to isolate or intimidate            charge an Iranian ultrasound technolo-        comply with the company’s training
  members of other ethnic groups               gist and that the former employee could       requirements and had violated company
• Alleviating tension in the workplace68       therefore proceed with her claim of           policy by airing grievances in the work
                                               national origin discrimination.74 The         environment.
                                               supervisor had ridiculed the employee’s           In an educational setting, courts have
                                               accent and had made comments about            affirmed that the ability to communicate
Allegations of discrimination based on         foreigners taking jobs from Americans.        clearly can be a job requirement for
accent fall within the EEOC’s protection       Further, on note cards at home, the           teachers. The Ninth Circuit Court of
of the linguistic characteristics of a         supervisor had compiled a list of             Appeals upheld a decision that found no
national origin group.69 Clearly a per-        allegedly substandard ultrasound exams        national origin discrimination when a
son’s accent is immediate information          performed by the employee, but she had        community college did not hire a woman
that he or she is not a native of America,     kept no such lists on other employees.        of Indian national origin as an instructor
and allegations that an employment                 However, although an employee may         because of her difficulty communicating
decision was taken on the basis of an          establish an initial claim of national        in the English language.79 Other courts
employee’s or an applicant’s accent will       origin discrimination based on accent,        have held that denying a promotion or
be closely reviewed by the EEOC and            an employer may offer legitimate reasons      tenure to a faculty member who had
the courts.                                    for the action. For example, when an          difficulty speaking English did not violate
    Accent cases have arisen in a variety      employee’s accent interferes with his or      Title VII.80
of employment contexts. In a case in-          her job performance, an employer may              The EEOC and the courts will closely
volving denial of a promotion, the             legitimately consider this effect in making   examine any job-related decision al-
Ninth Circuit Court of Appeals held            employment decisions. The Ninth               legedly based on accent to ensure that
that a Pakistani-born auditor could            Circuit Court of Appeals recognized this      the employer’s decision is justified and
introduce into evidence an administra-         possibility in a case holding that an         not a proxy for national origin discrim-
tor’s comment, made in a demeaning             adverse employment decision may be            ination.81
tone, that he could not understand the         predicated on a person’s accent when—
auditor’s accent and could not see how         but only when—the accent materially           Affiliations
the auditor expected to be a supervisor        interferes with job performance.75 The        As noted earlier, the EEOC also protects
if the auditor could not communicate           position in question in the case was          people from national origin discrimina-
with people.70 In another case involving       clerk for Honolulu’s motor vehicle            tion based on their affiliations, such as
denial of a promotion, the Sixth Circuit       department. It required constant public       marriage to a member of a national
Court of Appeals affirmed a district           contact, in which speaking clearly was        origin group or participation in schools,
court decision that there was national         an important skill.                           churches, temples, or mosques generally
origin discrimination when the employer            Similarly, employers may legitimately     used by people of a national origin

22   p o p u l a r g ov e r n m e n t
                                                                                             the purpose or effect of discriminating
                                                                                             against people of Mexican national
                                                                                             origin. The Court noted that U.S. citizen-
                                                                                             ship was required for federal employ-
                                                                                             ment and that interpreting “national
                                                                                             origin” to encompass citizenship would
                                                                                             result in a determination that Congress
                                                                                             flouted its own declaration of policy.
                                                                                             The Court found no reason to believe
                                                                                             that “national origin” should be
                                                                                             broader in scope for private employers
                                                                                             than for the federal government.87
                                                                                                 The line between citizenship and
                                                                                             national origin is not always clear. For
                                                                                             example, a Mississippi court heard the
                                                                                             claim of an American who alleged that,
                                                                                             after a Canadian consulting group began
                                                                                             managing the defendant corporation, he
                                                                                             was terminated in favor of a Canadian
                                                                                             citizen who was less experienced and
                                                                                             less qualified. The Canadian employer
                                                                                             tried to have the case dismissed because
                                                                                             the plaintiff stated his American citi-
                                                                                             zenship as the basis of the complaint.
                                                                                             The employer argued that Title VII does
                                                                                             not protect citizenship. However, the
group.82 This interpretation may go                                                          court held that the American employee
beyond the original intent of the                                                            had intended to state a claim of national
statute and is not a common basis                                                            origin discrimination and that he could
of complaint. However, it has been                                                           proceed with his case.88
accepted by some courts.                                                                         An applicant, an employee, or a
    In one case a female employee                                                            former employee therefore cannot suc-
brought a complaint alleging that                                                            ceed in a Title VII claim of national
she was discharged, was refused                                                              origin discrimination by alleging solely
reemployment, and was then barred             ciation and should ensure that the emplo-      that his or her citizenship was the basis
from other employment because of her          yee’s constitutional rights are honored.       for the adverse employment decision.
former employer’s persistent release of                                                      Other indicators of national origin
false and derogatory references.83 The        Alienage or Citizenship                        discrimination must be involved to form
District of Columbia Circuit Court of         The EEOC does not consider an employ-          the basis of the claim, and an applicant,
Appeals held that if the employee’s           ment decision based on citizenship to          an employee, or a former employee
discharge was based on her sex or her         violate Title VII unless it has the purpose    should not rely on the court to recraft a
spouse’s Arabic ancestry, the action          or effect of discriminating against a          citizenship complaint into a national
constituted discrimination in violation       person on the basis of national origin.85      origin complaint. Employers should
of Title VII. In another case a district          The leading case under Title VII is        remember, however, that IRCA protects
court held that the plaintiff’s allegation    Espinoza v. Farah Manufacturing Com-           “intending citizens”89 and that Section
of discrimination based in part on his        pany.86 In this case the Supreme Court         1981 of the U.S. Code has been held to
parents’ national origin was sufficiently     held that Title VII protects aliens from       prohibit discrimination by public and
associated with a charge of discrimination    illegal discrimination but does not make       private entities on the basis of alienage.
based on his own national origin.84           discrimination based on citizenship or         So an applicant’s, employee’s, or former
    Employers should use these cases as       alienage illegal. In Espinoza the em-          employee’s claim based on citizenship
reinforcement that an employment de-          ployer refused to hire the plaintiff because   alone may be actionable under other
cision must be based on the employee’s        of its long-standing policy of not hiring      federal statutes.90
job-related qualifications or performance,    aliens. The plaintiff alleged that the
rather than on his or her outside affilia-    refusal to hire her because of her alien-      “American” National Origin
tions or associations. This is particularly   age constituted national origin discrimi-      Courts have considered actions taken
true in the public sector, where the gov-     nation. The Court rejected this argument,      on the basis of an employee’s American
ernment should be especially attentive to     finding no indication that the employer’s      national origin to be a violation of Title
an employee’s right to freedom of asso-       policy against employment of aliens had        VII. For example, the Seventh Circuit

                                                                                                                     fall 2002       23
Court of Appeals has stated, “[W]e may        when he was replaced by an Italian.97          national origin discrimination arises
assume that just as Title VII protects        The court noted that “perhaps only             when discriminatory practices are based
whites from discrimination in favor of        American Indians can claim to be of            on the place in which one’s ancestors
blacks as well as blacks from discrimi-       American national origin for purposes of       lived. This definition does not require
nation in favor of whites, so it protects     Title VII.”98 This reasoning was rejected      identification of a country. As the court
Americans of non-Japanese origin from         in a later case. The court stated, “Under      stated, “[T]he different Indian tribes are
discrimination in favor of persons of         that rationale, then no one born in the        generally treated as domestic dependent
Japanese origin.”91 Similarly a federal       United States, not even an American            nations that retain limited powers of
district court has held that “employ-         Indian (whose ancestry is actually             sovereignty.”104
ment discrimination against American          Asian), could ever sue under Title VII             A person’s ethnic background—not
citizens based merely on country of birth,    for national origin discrimination. This       tied to a particular country or region—
whether that birthplace is the United         would be an absurd result and is clearly       also may be the basis for a claim of
States or elsewhere, contradicts the          foreclosed by the explicit holding in          national origin discrimination. For ex-
purpose and intent of Title VII, as well      Espinoza.”99                                   ample, one court has found a native-born
as notions of fairness and equality.”92          A better approach may be to analyze         American of Acadian descent (Acadians
These holdings are analogous to “re-          such claims on a case-by-case basis,           are French people who settled in Louisi-
verse” race discrimination decisions.         determining how removed a person is            ana) to be protected by Title VII.105
    One important consideration in these      from his or her ancestors’ country (or         Another court has held that being a
types of claims is whether the employer       countries) of origin or whether the per-       Gypsy (one of a group that migrated
is an American company or a foreign           son retains the physical, cultural, and        from India to Europe in the fourteenth
one. Many countries have treaties with        linguistic characteristics of his ancestors’   or fifteenth century and today maintains
the United States that permit employ-         country (or countries) of origin as            a migratory way of life) falls within
ment decisions to be made on the basis        described by the EEOC. For example,            Title VII’s protection, making it an un-
of citizenship.93 So, for example, the        a sixth-generation Italian-American            lawful employment practice for an em-
Seventh Circuit Court of Appeals held         who speaks fluent, accent-free English,        ployer to discriminate against a person
that a Japanese company’s preference          dresses in American fashion, and               on the basis of that ancestry.106
for hiring Japanese citizens in executive     maintains no connection to Italy might             Employers should ensure that ances-
positions did not constitute national         be considered to be of American na-            try is not used as a basis for employment
origin discrimination against American        tional origin whereas a first-generation       decisions. More important, they should
citizens, in large part because of the        Italian-American might not.                    reinforce to all employees that ancestry
express terms of a treaty of friendship                                                      is broader than a person’s country of
between the two countries.94 A treaty         Ancestry                                       origin and can encompass heritages
supersedes Title VII, and these holdings      Ancestry is the original and undisputed        such as tribal status and ethnicity.
are an important reminder that national       basis of coverage for national origin
origin and citizenship are not inter-         discrimination.100 As one court has            Appearance
changeable in alleging discrimination.        stated, “[N]ational origin on its face         A person’s appearance, when related to
    Given America’s history of immigra-       refers to the country where a person           his or her national origin, generally
tion, it is not surprising that someone       was born, or more broadly, the country         should not be a basis of consideration in
may consider himself or herself to be an      from which his or her ancestors came.”101      a job-related decision. In a Louisiana
American, yet maintain ties to another        Ancestry can apply to natives of the           case, two employees (one of Filipino
country or heritage. Such a self-image        United States of America as well as to         ancestry and one of African-American
was at issue in a case in which an Italian-   those of other countries.                      ancestry) brought a complaint of
American former employee of an Italian           Current geographical boundaries and         national origin discrimination following
international airline alleged that his        divisions are not necessary to state a         their terminations.107 The district court
failure to be promoted to personnel           claim of national origin discrimination        held that supervisors’ comments about
manager for employees in the United           based on ancestry. Ancestry is covered         the plaintiffs’ looks and skin complexion
States, Mexico, and Canada was dis-           even if the country of origin no longer        provided enough evidence of such
crimination on the basis of his Ameri-        exists. For example, the Ninth Circuit         discrimination.
can national origin.95 The court framed       Court of Appeals ruled that a native of           Another district court has stated that
the issue as “whether the plaintiff’s         Serbia might be protected under Title          having the appearance of a particular
national origin is American, because he       VII even though Serbia was not a               national origin group, without having
was born in this country, or Italian, be-     country at the time of the case.102            the corresponding ancestry, is a suffi-
cause his ancestors were born in Italy.”96    Further, in another case that court ruled      cient basis for a claim of national origin
The employee contended that he had            that a member of an Indian tribe might         discrimination. In a case involving a de-
two national origins, but the court           state a claim for national origin dis-         nial of a promotion and a hostile work
concluded that his national origin was        crimination when he was not hired for a        environment based on the plaintiff-
Italian since his ancestors were Italian,     position because of his tribal member-         employee’s alleged American Indian an-
and it held that he failed to state a claim   ship.103 The court held that a claim of        cestry,108 the employee had no discernible

24   p o p u l a r g ov e r n m e n t
Indian ancestry based on genealogical         factors to consider in making employ-              American-Arab Anti-Discrimination
and census data. Additional informa-          ment decisions, identifying harassing              Committee fact sheet available online at
tion, however, demonstrated that the          behaviors in the workplace among co-      /index.php?id=282.
                                                                                                     7. The formal name for this law is the
employee reasonably believed himself to       workers, and demonstrating how to
                                                                                                 Uniting and Strengthening America by Pro-
be of Indian ancestry and that the em-        minimize the potential for an unwelcome            viding Appropriate Tools Required to Intercept
ployer treated him as being of Indian         work environment for any employee.                 and Obstruct Terrorism Act of 2001. Pub. L.
descent. The court stated, “[T]he em-         Third, it can periodically inform em-              No. 107-56, 115 Stat. 271 (2001).
ployer’s reasonable belief that a given       ployees of processes available to address              8. See
employee is a member of a protected           concerns across the organization about             force_summary.asp.
class . . . controls this issue.” The court   national origin harassment or discrimi-                9. H. 1472: An Act Directing the
                                                                                                 Department of Health and Human Services to
held that “objective appearance and           nation, and promptly address any
                                                                                                 Establish a Biological Agents Registry, and
employer perception are the basis for         concerns brought forward.                          Imposing Civil Penalties for Violation of
discrimination and . . . the key factors         Moreover, in times of uncertainty               Registry Requirements. It became effective on
relevant to enforcing rights granted          and crisis, public employers have a broad          January 1, 2002, and is codified at Section
members of a protected class.”109             responsibility to ensure that minority             130A-149 of the NORTH CAROLINA GENERAL
   These cases teach that appearance is       opinions are heard and respected. Public           STATUTES (hereinafter G.S.).
not a valid basis for an employment           employees and citizens must trust that                10. The civil penalty for a willful or
                                                                                                 knowing violation of the law can be up to
decision. Employers should carefully          the government will not squelch their
                                                                                                 $1,000 per instance, and each day of a
evaluate an applicant’s or employee’s         opinions.112 To preserve governmental              continuing violation is a separate offense.
knowledge, skills, and abilities and use      integrity, public employers should ac-             j27
the resulting information to reach a          tively provide employees, clients, and             G.S. 130A-149(f).
decision. Employers should never make         community members with access to                      11. For a more thorough discussion of the
presumptions about national origin            opinions, ideas, and perspectives that             state’s actions related to bioterrorism
based on the way an applicant or an           cut across nationalities.                          preparedness, see Jill D. Moore’s article
                                                                                                 entitled “Unnatural Disasters: Bioterrorism
employee looks or dresses.
                                                                                                 and the Role of Government,” in POPULAR
                                              Notes                                              GOVERNMENT, Summer 2002, at 4. North
Conclusion                                                                                       Carolina also has established an official Web
                                                  1. From the poem entitled The New              site with comprehensive information related
National origin discrimination has not        Colossus, by Emma Lazarus.                         to the state’s efforts to improve safety and
been as pervasive a public problem in             2. See for statistics related to   security in the state: /
the workplace as race and sex discrimi-       immigration to the United States. From 1991        subpages/safety_security.asp.
nation have been. In fiscal year 2000,        to 2000, the United States averaged 900,000           12. 42 U.S.C. §§ 2000e through 2000e-17.
                                              legal immigrants per year.                            13. 29 C.F.R. § 1606.1.
the EEOC received 7,800 national
                                                  3. See information available from the United      14. 29 C.F.R. § 1606.3. See also 42 U.S.C.
origin complaints.110 For that same           States Dep’t of Commerce, Office of Travel         § 2000e-2(g).
period, it received more than 59,000          and Tourism Industries, online at www.tinet.          15. 29 C.F.R. § 1606.4. See also 42 U.S.C.
Title VII complaints (race, sex, national        § 2000e-2(e).
origin, and religion).111 However,            ti_cart_cookie=20020411.190624.06599.                 16. A discussion of certain employment
national origin complaints may rise in        This number is a marked increase from fiscal       restrictions relevant to some public-sector
the next few years. Both the increase in      year 1999, in which 31 million temporary           positions appears in the section on the USA
                                              visitors came to the United States. See THE        PATRIOT Act later in this article.
the number of immigrants to the United
                                              1999 STATISTICAL YEARBOOK tbl. 35, available          17. 29 C.F.R. § 1606.1.
States and the focused world efforts          online at              18. 29 C.F.R. § 1606.8. Courts, including
against terrorism may cause some              statistics/Temp99tables.pdf.                       the Fourth Circuit Court of Appeals (whose
Americans to reconsider their ideas               4. IMMIGRATION AND NATURALIZATION              decisions affect North Carolina), have
about national origin and the country’s       SERV., THE TRIENNIAL COMPREHENSIVE REPORT          accepted national origin harassment claims as
character. As national change and             ON IMMIGRATION 56 (Washington, D.C.: INS,          well. See Amirmokri v. Baltimore Gas &
international unrest continue, managers       May 1999), available online at        Electric Co., 60 F.3d 1126 (4th Cir. 1995);
                                              graphics/aboutins/repsstudies/report.pdf.          Boutros v. Canton Regional Transit Auth.,
must take care not to base employment
                                                  5. See North Carolina Office of Minority       997 F.2d 198 (6th Cir. 1993).
decisions on factors unrelated to a per-      Affairs, Hispanic/Latino Office, at http://           19. 29 C.F.R. § 1607(a).
son’s ability to perform a particular job.    minority /         20. 8 U.S.C. § 1324b(a)(1)(A).
    An employer can demonstrate its           hislatfacts.htm.                                      21. 8 U.S.C. § 1324b(a)(1)(B).
commitment to diversity and tolerance             6. The American-Arab Anti-Discrimination          22. 8 U.S.C. § 1324b(a)(3)(B).
in the workplace in several ways. First,      Committee cites knowledge of more than                23. Id.
it can publicize its policies affirming       sixty cases in which people perceived to be           24. 8 U.S.C. §§ 1324b(a)(2)(B), 1324b(b)(2).
                                              Arab have been expelled from aircraft during       Section 1324b(b)(2) states, in part, “[N]o
commitment to and support of equal
                                              or after boarding on the grounds that              charge may be filed respecting an unfair
employment opportunity. Second, it can        passengers or crew do not like the way they        immigration-related employment practice . . .
offer supervisors and managers training       look. For more information about reports of        if a charge with respect to that practice based
on national origin discrimination,            discrimination against Arab-Americans              on the same set of facts has been filed with the
defining permissible and impermissible        following the September 11 attacks, see the        EEOC under Title VII of the Civil Rights Act

                                                                                                                            fall 2002         25
of 1964, unless the charge is dismissed as             38. Pub. L. No. 107-56, § 817, 115 Stat.          51. 25 N.C.A.C. § 1C.0214.
being outside the scope of such title.”             272, 385 (2001). The biological weapons              52. One of the fundamental principles of
  25. 8 U.S.C. § 1324b(a)(2)(C).                    provisions are found at 18 U.S.C. §§ 175–178.      employment in North Carolina is employ-
  26. 8 U.S.C. § 1324b(a)(4).                       Select agents are defined in 42 C.F.R. § 72.6(j)   ment at will. See Sides v. Duke Univ., 74 N.C.
  27. The Thirteenth Amendment (Slavery             and specified in 42 C.F.R. pt. 72, app. A.         App. 331, disc. review denied, 314 N.C. 331
and Involuntary Servitude) to the Constitution      They do not include biological agents or           (1985). See also Kurtzman v. Applied
reads in its entirety:                              toxins exempted in 42 C.F.R. § 72.6(h) and         Analytical Indus., 347 N.C. 329 (1997).
   Section 1. Neither slavery nor involuntary       42 C.F.R. pt. 72, app. A.                          “Employment at will” means that either the
   servitude, except as a punishment for               39. Pub. L. No. 107-56, § 817, 115 Stat.        employer or the employee may terminate the
   crime whereof the party shall have been          272, 386 (2001), amending 18 U.S.C.                relationship at any time for any reason or for
   duly convicted, shall exist within the           §§ 175–178 (Biological Weapons).                   no reason, but an employee may not be
   United States, or any place subject to their        40. Id. Currently the secretary of state has    discharged for an illegal reason. There is a
   jurisdiction.                                    determined that Cuba, Iran, Iraq, Libya,           court-made, or common law, exception to
   Section 2. Congress shall have power to en-      North Korea, Sudan, and Syria are banned           this doctrine: an employer may not discharge
   force this article by appropriate legislation.   countries for this purpose.                        an employee if doing so would contravene
  28. See Civil Rights Act of 1866 ch. 31,             41. Pub. L. No. 107-56, § 817, 115 Stat.        public policy.
§ 1, 14 Stat. 27 (1866); Voting Rights Act          272, 386 (2001), citing the Immigration and          53. See Considine v. Compass Group, USA,
of 1870 ch. 114, § 18, 16 Stat. 140 (1870).         Nationality Act at 8 U.S.C. § 1101(a)(3).          145 N.C. App. 314, 320–21 (2001).
See also Runyon v. McCrary, 427 U.S. 160,              42. 8 U.S.C. § 1101(a)(3).                        54. An employee may bring a claim under
168–70 (1976).                                         43. 21 U.S.C. § 802.                            Title VII and a concurrent wrongful discharge
  29. 42 U.S.C. § 1981(a). Before the 1991             44. Pub. L. No. 107-56, § 817, 115 Stat.        claim based on a violation of North Carolina
amendments, this section constituted the            272, 386 (2001).                                   public policy. See Hughes v. Bedsole, 913
entire text of Section 1981.                           45. The Bioterrorism Act recently enacted       F. Supp. 420, 429 (E.D.N.C. 1995), aff’d, 48
  30. 42 U.S.C. § 1981(b).                          by Congress to strengthen the nation’s pre-        F.3d 1376 (4th Cir. 1995). However, in en-
  31. 42 U.S.C. § 1981(c). There was some           paredness for bioterrorism and other public        acting the EEPA, “the North Carolina legis-
discussion before the 1991 amendments               health emergencies also requires background        lature chose not to provide any remedies
about whether Section 1981 covered dis-             checks and registration of people working          beyond those available under federal discrimi-
crimination by private entities. However, the       with select agents. Pub. L. No. 107-188,           nation statutes. It is unlikely that the North
discussion was rendered moot by the addition        § 201, 116 Stat. 594, 637–646 (2002). Also,        Carolina courts would disturb this legislative
of this section, which reads in its entirety,       if an employer uses an outside company to          decision by providing a common law remedy
“The rights protected by this section are           perform any criminal record (or other back-        for wrongful discharge beyond the procedure
protected against impairment by nongovern-          ground) check on applicants for these posi-        envisioned by Title VII.” Percell v. IBM,
mental discrimination and impairment under          tions, it must comply with the notice and use      765 F. Supp. 297, 302 (E.D.N.C. 1991),
color of State law.” See Pub. L. No. 102-166,       provisions of the Fair Credit Reporting Act.       aff’d, 23 F.3d 402 (4th Cir. 1994). See also
§ 101, 105 Stat. 1071 (1991).                       A detailed discussion of the requirements of       Spagnuolo v. Whirlpool Corp., 467 F. Supp.
  32. St. Francis College v. Al-Khazraji, 481       that act is beyond the scope of this paper. It     364 (W.D.N.C. 1979). There is no legislative
U.S. 604, 613 (1987). See also Alizadeh v.          can be found at 15 U.S.C. §§ 1681–1681u.           history to explain why the legislature chose
Safeway Stores, 802 F.2d 111, 114 (5th Cir.            46. Pub. L. No. 107-56, § 817, 115 Stat.        not to establish a separate remedial scheme.
1986) (holding that white woman married to          272, 386 (2001).                                   Note, though, that a tort claim, such as
man of Iranian national origin established             47. N.C. CONST. art. I, § 19.                   wrongful discharge in violation of public
claim under Section 1981 by alleging that her          48. G.S. 126-16. This section reads as          policy, may be heard in a state court instead
employer discriminated against her because          follows: “All State departments and agencies       of a federal court. In that circumstance a
her husband was of “a race other than               and all local political subdivisions of North      discharged employee has a longer period in
white”); Ortiz v. Bank of America, 547              Carolina shall give equal opportunity for          which to file a complaint.
F. Supp. 550, 568 (E.D. Ca. 1982) (holding          employment and compensation, without                 55. See, e.g., Bender v. Suburban Hosp.,
that plaintiff of Puerto Rican descent and          regard to . . . national origin, to all persons    159 F.3d 186 (4th Cir. 1998); Simpson v.
accent who was denied promotions and                otherwise qualified, except where specific age,    Welch, 900 F.2d 33 (4th Cir. 1990).
eventually terminated had cause of action           sex or physical requirements constitute bona         56. 29 C.F.R. § 1606.7(a).
under Civil Rights Act).                            fide occupational qualifications [BFOQ]              57. Saucedo v. Brothers Well Serv., 464
  33. See Graham v. Richardson, 403 U.S.            necessary to proper and efficient administra-      F. Supp. 919 (S.D. Tex. 1979).
365, 377 (1971).                                    tion.” Note that the BFOQ exception does             58. EEOC v. Premier Operator Servs.,
  34. See Duane v. GEICO, 37 F.3d 1036              not include national origin.                       113 F. Supp. 2d 1066, 1073 (N.D. Tex. 2000)
(4th Cir. 1994).                                       49. G.S. 143-422.1 through -422.3. The          (“[A] blanket policy or practice prohibiting
  35. Id. at 1041. See also Jones v. Alfred H.      EEPA states, “[I]t is the public policy of this    the speaking of a language other than English
Mayer Co., 392 U.S. 409, 426 (1968);                State to protect and safeguard the right and       on an employer’s premises at all times, except
Runyon v. McCrary, 427 U.S. 160, 170–71             opportunity of all persons to seek, obtain and     when speaking to non-English speaking
(1976).                                             hold employment without discrimination or          customers, violates Title VII’s prohibition
  36. Duane, 37 F.3d at 1043. This reasoning        abridgement on account of . . . national           against discrimination based on national
was later adopted by the Second Circuit             origin.” G.S. 143-422.2.                           origin”); EEOC v. Synchro-Start Prods., 29
Court of Appeals in Anderson v. Conboy, 156            50. Current and former state employees          F. Supp. 2d 911 (N.D. Ill. 1999) (holding that
F.2d 167 (2nd Cir. 1998) (holding that Section      must bring their complaints of national origin     employer’s English-only rule supported na-
1981 proscribes alienage discrimination by          discrimination under G.S. 126-34.1(a)(2) and       tional origin claim under Title VII). Some
private entities with respect to right to make      -34.1(a)(10). Applicants for state employment      courts have rejected the EEOC presumption
and enforce contracts).                             must bring their complaints under G.S. 126-        against English-only policies, however. See,
  37. Pub. L. No. 107-56, 115 Stat. 272             34.1(b). These statutes provide for a hearing      e.g., Garcia v. Spun Steak Co., 998 F.2d 1480,
(2001).                                             before the Office of Administrative Hearings.      1490 (9th Cir. 1993) (“[W]e are not aware of

26   p o p u l a r g ov e r n m e n t
. . . anything in the legislative history to Title     72. Id. at 981.                                 right to discriminate in favor of Greek citizens
VII that indicates that English-only policies          73. Carino v. University of Okla. Bd. of        in filling managerial and technical positions in
are to be presumed discriminatory”); Long v.         Regents, 750 F.2d 815 (10th Cir. 1984).           Greek airline’s American-based offices and
First Union Corp. of Va., 894 F. Supp. 933,            74. Hossaini v. Western Mo. Medical Ctr.,       did not give Greek airline license to discrimi-
940 (E.D. Va. 1995) (“The EEOC’s determi-            97 F.3d 1085 (8th Cir. 1996).                     nate against or among non-Greek citizens
nation that the mere existence of an English-          75. Fragante v. Honolulu, 888 F.2d 591,         hired for positions not covered by treaty on
only policy satisfies the plaintiff’s burden of      596 (9th Cir. 1989).                              basis of race, sex, national origin, or any
proof is not consistent with the drafting of the       76. Meng v. Ipanema Shoe Corp., 73              other factors prohibited by Michigan law).
statute but is rather agency-created policy.         F. Supp.2d 392 (S.D.N.Y. 1999).                     94. Fortino at 393–94. The court found that
The plaintiff still bears the burden of showing        77. Bozicevich v. American Airlines, 17         the company treated Japanese-American
a prima facie case of discrimination”); Kania        BNA Fair Empl. Prac. Cas. 247 (S.D.N.Y.           employees the same as other American
v. Archdiocese of Philadelphia, 14 F. Supp. 2d       1977).                                            employees. This finding supported the
730, 735–36 (E.D. Pa. 1999) (“Despite the              78. Bell v. Home Life Ins. Co., 596 F. Supp.    company’s defense that it was making
deference ordinarily due to official adminis-        1549 (M.D.N.C. 1984).                             decisions on the basis of citizenship, not
trative guidelines and regulations, such               79. Gideon v. Riverside Community College       national origin.
guidelines and regulations may not exceed the        Dist., 43 BNA Fair Empl. Prac. Cas. 910             95. Vicedomini v. Alitalia Airlines, 1983
authority of the statute they purport to inter-      (C.D. Cal. 1985), aff’d, 800 F.2d 1145 (9th       WL 616 (S.D.N.Y. 1983).
pret. . . . Therefore, the Court shall disregard     Cir. 1986).                                         96. Id. at *4.
the EEOC Guidelines in determining whether             80. See Kureshy v. City Univ. of N.Y., 561        97. Id.
the Defendants have engaged in national              F. Supp. 1098 (E.D.N.Y. 1983) (holding that         98. Id.
origin discrimination”). All these cases are         associate professor of geology, a native of         99. McMillan, 1998 WL 911775, at *2.
discussed in more detail within this section.        India who was denied promotion to full             100. See 42 U.S.C. § 2000e(b).
   59. 29 C.F.R. § 1606.7(b).                        professor on four occasions and ultimately         101. Thomas v. Rohner-Gehrig Co., 582
   60. Garcia v. Gloor, 618 F.2d 264 (5th Cir.       denied tenure, could not show that he was         F. Supp. 669 (N.D. Ill. 1984).
1980).                                               exceptional teacher as required by university);    102. Pejic v. Hughes Helicopters, 840 F.2d
   61. Garcia v. Spun Steak Co., 998 F.2d            Hou v. Pennsylvania, Dep’t of Educ., Slippery     667 (9th Cir. 1988). At the time, Serbia was a
1480. See also Tran v. Standard Motor Prods.,        Rock State College, 573 F. Supp. 1539 (W.D.       part of Yugoslavia.
10 F. Supp. 2d 1199, 1210 (D. Kan. 1998)             Pa. 1983) [holding that associate professor of     103. Dawavendewa v. Salt River Project
(holding that policy requiring employees to          mathematics of Chinese origin who was             Agric. Improvement and Power Dist., 154
speak English during meetings and while              denied promotion to full professor six years in   F.3d 1117, 1119 (9th Cir. 1998).
working did not constitute hostile work en-          a row made prima facie case of national            104. Id. at 1120. The EEOC has provided
vironment in violation of Title VII when there       origin discrimination but that college offered    guidance in this area through a Policy
was legitimate business reason for enacting          legitimate and nondiscriminatory reasons for      Statement on Indian Preference under Title
policy, no evidence that policy was strictly         decision (average teaching and inadequate         VII (1998). It states that the exemption for
enforced or any employee was ever disciplined        committee work)].                                 Indian preferences found at 42 U.S.C. §
for violating policy, and no adverse action or         81. 45 Fed. Reg. 85,632 (Dec. 29, 1980).        2000e(i), which permits businesses near an
effect on employee-complainant).                       82. 29 C.F.R. § 1606.1.                         Indian reservation to announce publicly an
   62. Id. at 1487–88.                                 83. Shehadeh v. Chesapeake & Potomac            employment practice of preferential treatment
   63. Jurado v. Eleven-Fifty Corp., 813 F.3d        Tel. Co. of Md., 595 F.2d 711 (D.C. Cir.          for any person who is an Indian living on or
1406 (9th Cir. 1987).                                1978).                                            near a reservation, does not allow discrimi-
   64. Long v. First Union Corp. of Va., 894           84. Fix v. Swinerton and Walberg Co., 320       nation based on tribal affiliation.
F. Supp. 933 (E.D. Va. 1995). The Fourth             F. Supp. 58 (D. Colo. 1970).                       105. Roach v. Dresser Indus. Valve
Circuit Court of Appeals affirmed this                 85. 29 C.F.R. § 1606.5.                         Instrument Div., 494 F. Supp. 215 (W.D. La.
opinion in Long, an unpublished decision at            86. Espinoza v. Farah Mfg. Co., 414 U.S. 86     1980).
86 F.3d 1151, 1996 WL 281954 (4th Cir.               (1973).                                            106. Janko v. Illinois State Toll Highway
1996). With an “unpublished” decision,                 87. Id. at 91.                                  Auth., 704 F. Supp. 1531 (N.D. Ill. 1989).
the text of the case is available for review,          88. McMillan v. Delta Pride Catfish, 1998        107. Johnson v. Fleet Mortgage Corp., 878
but the case cannot be cited as precedent for        WL 911775 (N.D. Miss. 1998).                      F. Supp. 71 (E.D. La. 1995).
future claims.                                         89. 8 U.S.C. § 1324b(a)(1)(B).                   108. Perkins v. Lake County Dep’t of Utils.,
   65. Long, 894 F. Supp. at 941.                      90. See Graham v. Richardson, 403 U.S.          860 F. Supp. 1262 (N.D. Ohio 1994).
   66. Kania v. Archdiocese of Philadelphia,         365, 377 (1971); Duane v. GEICO, 37 F.3d           109. Id. at 1277–78.
14 F. Supp. 2d 730 (E.D. Pa. 1999).                  1036 (4th Cir. 1994).                              110. See
   67. Although Title VII contains an                  91. Fortino v. Quasar Co., a Div. of             111. See
exemption for religious organizations with           Matsushita Elec. Corp. of America, 950 F.2d        112. In THE LOGIC AND LIMITS OF TRUST,
respect to employment discrimination based           389, 392 (7th Cir. 1991).                         Bernard Barber argues that trust is
on religion, the exemption does not extend to          92. Thomas v. Rohner-Gehrig Co., 582            fundamentally about expectations. Citizens
a religious employer’s alleged discrimination        F. Supp. 669, 675 (N.D. Ill. 1984) (emphasis      expect technically competent role perfor-
based on other protected characteristics.            added).                                           mance from their government, which
42 U.S.C. § 2000e-1(a).                                93. Id. See also MacNamara v. Korean Air        may involve “expert knowledge, technical
   68. See also Garcia v. Gloor, 628 F.2d 264,       Lines, 862 F.2d 1135, 1144 (3d Cir. 1988)         facility, or everyday routine performance.”
267 (5th Cir. 1980).                                 (holding that Korean company had right to         Additionally, public employees must have
   69. 29 C.F.R. § 1606.1.                           choose citizens of its own nation as              cognitive and moral expectations for
   70. Hashem v. California State Bd. of             executives); Wickes v. Olympic Airways, 745       themselves, other employees, and the
Equalization, 200 F.3d 1035 (7th Cir. 2000).         F.2d 363, 368 (6th Cir. 1984) (holding that       governmental system. BARBER, THE LOGIC
   71. Berke v. Ohio Dep’t of Pub. Welfare,          1951 treaty between United States and Greece      AND LIMITS OF TRUST 9 (New Brunswick, N.J.:
628 F.2d. 980 (6th Cir. 1980).                       afforded Greek corporations only a narrow         Rutgers Univ. Press, 1983).

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