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Workplace Fairness Weekly

Workplace Fairness Weekly (2/17/20)

Topic of the Week  National Origin Discrimination

  • Can an employer choose employees of one national origin over another?
  • Can I be asked if I am a citizen?
  • Can I be asked to take an English test?

Can an employer choose employees of one national origin over another?

In some limited circumstances, employers are allowed to prefer one national origin to another. This is allowed only when national origin is what is called a "bona fide occupational qualification" for the position, which means that belonging to a certain national origin is necessary for the job.

For example, being of Latin origin might be a bona fide occupational qualification for a role in a movie featuring a Cuban family. Circumstances in which preferences for one national origin are allowed are very rare. The employer must be able to demonstrate the position has special qualifications that only members of one national origin can fulfill.

Can I be asked if I am a citizen?

An employer should not ask about your citizenship status during a job interview. The employer can only notify you as a job applicant that, should a job be offered to you, you will be expected to provide evidence that you are legally entitled to work in the US within the first three days of starting work. The employer should say this to every job candidate, as saying this selectively may be illegal discrimination.

Can I be asked to take an English test?

Your employer or potential employer can test an employee on English proficiency (ability to speak or write in English), as long as the the employer tests all applicants. However, if the employer or potential employer denies someone an employment opportunity because of English proficiency, the employer must show a legitimate, nondiscriminatory reason. Whether or not it is illegal to use the English test will depend on the qualifications of the employee, the nature of the position, and whether the employee's level of English proficiency would have a negative effect on job performance. Requiring employees or applicants to be fluent in English may violate the law if the rule is not related to the requirements of the position or job performance, and it appears that the rule was adopted to exclude individuals of a particular national origin. 

Thought of the Week

"English-only workplace policies can be discriminatory and foster a hostile environment when implemented with the intent to silence foreign languages in the workplace or manufacture a reason to discipline persons who are not native English speakers. The EEOC identifies discrimination related to English-only laws as one of several ways that employees can suffer illegal discrimination or harassment based on national origin."

–Immigrants’ Employment Rights under Federal Anti-Discrimination Laws,

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

Top Five News Headlines

    List of the Week

    from EEOC Enforcement and Litigation Report

    Enforcement and Litigation Report

    • Age and sex discrimination charges fell by 1,338 and 1,123 charges, respectively—since last fiscal year. 
    • Charges pertaining to sexual harassment allegations dipped, payouts in this area swelled from $56.6 million in FY2018 to $68.2 million in FY2019.
    • EEOC recoveries fell 4 percent overall, from $505 million in FY2018 to $486 million in FY2019.

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