Discrimination in employment on the basis of national origin is prohibited by both Title VII and the Immigration Reform and Control Act of 1986.
As with other forms of discrimination prohibited by Title VII discussed in previous lessons, both disparate-treatment and disparate-impact theories of discrimination are applicable to claims of discrimination based on national origin. Likewise, employers charged with national-origin discrimination may raise the same general types of defenses that are valid in response to other types of Title VII discrimination claims, including evidence that the factual allegations of the plaintiff are untrue; that a particular national origin is a bona fide occupational qualification; or, in disparate-impact cases, that a selection device that has disparate impact on persons of a particular nationality is justified by business necessity.
In discussing national-origin discrimination, it is also important to discuss the requirements of the Immigration Reform and Control Act of 1986. This statute is probably best known by employers because it requires them to verify that each and every person hired to a position is legally entitled to work in the United States either by having U.S. citizenship or by being a legal alien authorized to work in the United States. However, the IRCA also prohibits discrimination in employment based on national origin and citizenship.
Special issues concerning national-origin discrimination are as follows: the scope of the protected category “national origin;” issues involving “English-only” rules at workplaces that have disparate impact on some persons of minority national origin groups; matters regulated by the IRCA; and other legal protection from employment discrimination based on citizenship and national origin. These topics are discussed below.