Race, Color and National Origin

Who is protected against discrimination based on race, color and national origin?

EVERYONE! Many people believe that minorities have greater rights under the anti-discrimination laws than others, but that is not true. All people fall within the definition of race, color and national origin and all have equal protection under the law. However, most of the complaints received by the IHRC about race, national origin or color discrimination come from persons of Hispanic, African-American or Native American descent. Persons who are discriminated against because of their association with minorities or minority organizations are also covered by the law.

What are some examples of discriminatory employment practices?

Discrimination comes in many forms. Here are some examples:

Harassment

Ethnic and racial slurs should never be permitted in the workplace. Other verbal or physical conduct may be discriminatory if it is directed towards someone because of their race, color or national origin and if the conduct has the purpose or effect of creating a hostile, intimidating or offensive work environment. An employer has an affirmative duty to maintain a working environment free of harassment based on color, national origin or race. An employer may be held liable for the acts of its employees if supervisors know (or should have known) about the harassment and failed to take appropriate corrective action. An employer may also be liable for the harassment coming from non-employees if the employer has some legal control over the non-employees, fails to take immediate corrective action or expects an employee to tolerate the harassment as part of his or her job.

Using personal preferences in employment decisions

Favoring members of a particular culture, skin color or race in making any employment decision, from hiring to termination.

Stereotyping

Pre-judging a member of a racial or national origin group because of assumptions about the group. Assumptions are often made about:

• • Intelligence
  • Punctuality/Reliability
  • Integrity
  • Criminality
  • Cooperativeness

Past experience

Problems in dealing with others of a certain race, color or national origin are sometimes used to assume all members will present similar problems.

Co-worker or customer preferences

Racial biases and preferences of customers or co-workers cannot be used as a rationale to deny equal employment opportunity.

Relying solely on current employees to find new job applicants

Information transmitted by informal contacts, especially if few minorities are in the current workforce, may not reach qualified minority applicants, thus denying them equal opportunity to compete and be considered for new positions.

Eliminating job candidates because of their arrest records

An arrest is not an indicator of guilt and historically minorities have suffered proportionally more arrests than others. Employers may request information about past convictions, and they can terminate employees for giving false answers. The EEOC urges employers not to use convictions as an absolute bar to employment. Rather, they should consider such factors as age and time of offense, the seriousness and the nature of any violations.

Eliminating candidates because of economic status

Rejection of applicants because of poor credit ratings has an adverse impact on minority groups and may be illegal unless a business reason exists to justify the practice. Inquiries about bankruptcy, car ownership, rental or ownership of a house and past garnishment of wages may be illegal.

English language skill/testing

Hiring or promoting only people who are fluent in English adversely impacts members of certain ethnic groups, such as Hispanics in Idaho. An employer should require or test for English language skill only when there is a business necessity for workers to use that skill on their jobs. Employers may, however, require employees who are able to speak English to use that language while on the job, if the rules are reasonable and employees have been given notice of when it is permitted and when it is not permitted to speak in other languages.

Imposing unnecessary education requirements

Educational requirements should be job-related. If they are merely used as a screening device, they may be illegal because of their adverse impact on members of minority groups.

Imposing unnecessary height/weight requirements

People of Asian and Hispanic descent tend to have smaller statures than people of some other backgrounds. Using minimum height or weight requirements will disproportionately screen them out of jobs. An employer who uses minimum height or weight requirements, therefore, must be able to demonstrate that there is a business necessity for the requirement. Otherwise, the practice is discriminatory.

Requiring an applicant to supply a maiden name or spouse’s name

This is information which is not relevant to a person’s ability to do a job and could be used to discriminate on the basis of national origin.

What are examples of employment practices that might appear to be unfair but are actually legal under the anti-discrimination laws?

Affirmative action

Many Idaho employers who do business with federal money are required by their contracts with federal agencies to have affirmative action plans. Other employers write voluntary affirmative action plans in order to redress the effects of past discrimination, intended or unintended. The goal of affirmative action is to obtain a workforce representative of the diversity of the labor pool.

Data required for legitimate business purposes

An employer may ask applicants to voluntarily provide information about race or ethnicity. This information may be used for implementation of affirmative action programs or government reporting or record-keeping requirements. It may also be used for studies to identify and resolve possible problems in the recruitment and testing of members of minority groups. If this information is requested on an application, there should also be a written assurance that it will be maintained separately from application materials and not be a part of the hiring process.

National security

It is not unlawful to deny employment to any individual who does not fulfill national security requirements as defined by the law.

Indian preference

It is not illegal under federal law for an employer on or near an Indian reservation to maintain and publicize an employment policy giving preference to Indians living on or near the reservation. This is an exception to the general prohibition against race-based preferences. It was inserted into federal law in recognition of the unique status of tribal and reservation-based activities.

Bona fide occupational qualification (BFOQ)

An employer may, in very limited circumstances, restrict hiring to members of a particular national origin. The employer must be able to demonstrate that this requirement is an actual qualification for doing the job and is necessary for the normal operation of business. BFOQs are narrowly interpreted. There are no recognized BFOQs for race or color.

“National origin” and “citizenship” are different legal concepts and are treated differently under the law

“National origin” refers to the country from which an individual or her/his forbears came; it does not refer to whether the person is a U.S. citizen. Anti-discrimination laws protect citizens and non-citizens alike from discrimination based on race, national origin or color. However, the laws enforced by the IHRC do not protect an individual who believes that he/she has been discriminated against because of the particular citizenship held: U.S. citizen or citizen of another country.

The Immigration Reform and Control Act of 1986, which is enforced by the U.S. Department of Justice, prohibits discrimination based upon citizenship status, unless U.S. citizenship is required by law, regulation or executive order. Therefore, if individuals who are legally authorized to work in the United States feel they have been discriminated against because of citizenship status, they may contact the U.S. Department of Justice for assistance at the following location:
 
U.S. Department of Justice
Office of Special Counsel for Immigration
Related Unfair Employment Practices
P.O. Box 65490
Washington, D.C. 20035
1-800-255-7688
1-800-237-2515 (TDD)