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Over the past decade, the UnitedStates of America has welcomedmore than 9 million legal immi-

grants.2 In the year 2000, nearly 51million temporary visitors came to theUnited States as tourists, business people,students, exchange visitors, specializedworkers, and others.3 Further, theImmigration and Naturalization Serviceestimates that in 1996 there were morethan 5 million illegal immigrants in the country.4

This information underscores thespecial history of the United States. Almost all Americans can cite foreigncountries as the homelands of their ancestors, who traveled to the land ofopportunity. Such immigration has re-sulted in the much-used descriptions ofAmerica as a “melting pot” and “tossedsalad.” This shared history of startinganew has given America a nationalcharacter unlike any other country.Accepting people from other places isingrained in the national psyche.

North Carolina also is undergoing ashift in population demographics due toimmigration. Within the state, Latinosare the fastest-growing populationgroup.5 North Carolina ranks fifth inthe nation in the number of migrant andseasonal farm workers.

Despite the country’s long history of welcoming immigrants, the terroristattacks on September 11, 2001, haveaffected each American individually andall Americans collectively. Many aremore suspicious of “strangers”—anyone who does not seem American—even as heterogeneous as Americans

Emerging Issues: National Origin Discrimination in EmploymentJoanna Carey Smith

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

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!

—Inscription from Statue of Liberty1

The author is anassociate university counsel at UNCChapel Hill and anadjunct instructorin the School of Government,specializing inpublic employmentlaw. Contact her atjoanna@unc.edu.

18 p o p u l a r g ov e r n m e n t

are. More telling, Americans havewitnessed a retraction of their personalliberties in response to the tragedy. They must submit to increased securitychecks as they travel, and many aremore suspicious of those traveling with them.6

At the federal level, Congress has enacted the USA PATRIOT Act, whichgives broad authority to law enforcementofficers to monitor and arrest people allegedly linked to terrorist activities, restricts the ability of some people towork in certain environments or withcertain material, and allows disclosureof students’ and employees’ records tofederal law enforcement officerswithout their consent.7

At the state level, North Carolina hasbeen implementing a multifaceted re-sponse to potential bioterrorism attackssince 1999. Through its Division ofPublic Health, the state has dedicatedresources to developing a statewide re-sponse plan, has conducted bioterrorismtraining for local governments, and hasprovided technical assistance to localgovernments developing their own re-sponse plans. The state also has author-ized funds for forming regional teams toconduct public health surveillance, forpurchasing information technologylinking every local health department tothe federal Centers for Disease Controland Prevention’s Health Alert Network,for expanding the state’s public healthlaboratory, and for creating a statebioterrorism team composed of expertsin law enforcement, health, natural resources, environment, agriculture,transportation, research, and informa-tion technology.8

Additionally, North Carolina has en-acted a law creating a statewide registryof laboratories that keep biological andchemical agents.9 The law establishescivil penalties for those who violate theregistry requirements.10

Most recently the state has receivedfederal funds that will be used to imple-ment a hospital bioterrorism prepared-ness program, to continue to developand expand critical public health infra-structure, to review state laws to deter-mine whether they provide for anadequate public health response tobioterrorism, and to conduct planningand training efforts.11

With this background it is not sur-prising that questions related to discrim-ination based on national origin havearisen. This article addresses the lawsprohibiting national origin discriminationin employment, surveys relevant cases,and suggests steps that public-sectoremployers can take to demonstrate theircommitment to diversity and tolerancein the workplace.

Federal Laws andRegulations onNational OriginDiscrimination

Title VII of the CivilRights ActThe comprehensivefederal law prohib-iting discriminationin employment isTitle VII of the CivilRights Act.12 It ap-plies to all public andprivate employerswith more than fifteenemployees. Section2000e-2 of Title VIImakes it unlawful foremployers to fail tohire, refuse to hire,discharge, or discrim-inate against peoplebecause of their race,color, religion, sex, or national origin.Further, employers may not “limit,segregate, or classify” employees or jobapplicants in any way that would deprivethem of employment opportunities oradversely affect their status as an em-ployee, because of their race, color, re-ligion, sex, or national origin.

“National origin” is not defined inthe statute. However, the Equal Em-ployment Opportunity Commission(EEOC), the agency that enforces TitleVII, has issued detailed regulationsinterpreting the statute, which givemore substance to the term. The EEOCdefines “national origin discrimination”as denial of equal employment opportu-nity because of a person’s, or his or herancestor’s, place of origin; or because aperson has the physical, cultural, orlinguistic characteristics of a nationalorigin group.13 Through this definition

one can infer that national origin encom-passes accent, affiliation, “alienage”(alien status), ancestry, and appearance.

There are some exceptions to thisbroad prohibition on discrimination.For one, an employer may refuse to hireor promote a person, regardless of hisor her national origin, when perform-ance of the duties of the position, or

access to the premiseswhere any of theduties are to beperformed, is subjectto any federal require-ment imposed in theinterest of U.S. na-tional security, and the person in questiondoes not fulfill thatrequirement.14 Notethat this nationalsecurity exception isnot limited to nationalorigin but includesany restriction im-posed by the appli-cable federal statute orexecutive order.

An employer alsomay refuse to hire orpromote a personbecause he or she failsto meet a bona fideoccupational qualifi-cation (BFOQ). A“BFOQ” is a require-

ment reasonably necessary to the nor-mal operation of a particular businessor enterprise. For example, a restaurantmay impose certain hairstyle restrictionsto ensure compliance with state healthcodes, and such restrictions may affectcertain ethnic or religious groups.15 TheEEOC narrowly interprets the BFOQexception, however. If an employeradopted a policy restricting employmentof people of a particular national origin,the employer would have to demon-strate how the policy was necessary tothe normal operation of its business.There are few positions or services inwhich a particular national origin willinterfere with the normal operations ofan employer, including a governmentagency or a public school or university.16

The EEOC also has defined the typesof characteristics protected by Title VII.The EEOC closely examines charges

Despite the country’s longhistory of welcomingimmigrants, the terroristattacks on September 11,2001, have affected eachAmerican individually and allAmericans collectively.

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[it] to be essential for an employer to dobusiness with an agency or departmentof the Federal, State, or local govern-ment.”25 IRCA also expressly allows anemployer to give preference to citizensover noncitizens in hiring, recruitment,or fee-based referral for employment iftwo applicants are equally qualified.26

Section 1981 of the U.S. CodeSection 1981 of the U.S. Code, whichwas enacted to implement the ThirteenthAmendment to the U.S. Constitution,prohibits race discrimination in employ-ment contracts.27 This law originated inthe Civil Rights Act of 1866 and theVoting Rights Act of 1870.28 It providesin part that “all persons within thejurisdiction of the United States shallhave the same right in every State andTerritory to make and enforce contracts. . . as is enjoyed by white citizens. . . .”29

“Make and enforce contracts” is de-fined to include “making, performance,modification, and termination ofcontracts, and the enjoyment of allbenefits, privileges, terms, and condi-tions of the contractual relationship.”30

In other words, any involvement in acontractual relationship is protected.

Section 1981 applies to all public orprivate employers; no minimum numberof employees is required.31 Although thetext of the law appears to prohibit onlyrace discrimination, the Supreme Courthas concluded that Congress also in-tended to protect those “identifiableclasses of persons who are subjected tointentional discrimination solely becauseof their ancestry or ethnic characteris-tics.”32 A person therefore may be able tostate a claim under Section 1981 on thebasis of national origin discrimination.

The Supreme Court also has heldthat Section 1981 prohibits discrimina-tion against aliens by public entities.33

Further, the Fourth Circuit Court ofAppeals, the federal appeals court withjurisdiction over North Carolina, hasexamined whether Section 1981 pro-hibits private discrimination on thebasis of alienage.34 The court concludedthat the Voting Rights Act of 1870barred such discrimination.35 The courtreasoned that “it would be strange in-deed to hold . . . that this same grant ofrights to ‘all persons within the jurisdic-tion of the United States’ does not also

alleging that individuals have beendenied equal employment opportunitybecause of such national origin consid-erations as the following:

• Marriage to or association withpeople of a national origin group

• Membership in, or association with,an organization identified with orseeking to promote the interest of national origin groups

• Attendance at or participa-tion in schools, churches,temples, or mosquesgenerally used by persons ofa national origin group

• A person’s name or his orher spouse’s name beingassociated with a nationalorigin group17

Additionally, EEOC regula-tions prohibit harassment basedon national origin, using thesame standards as those appliedto sexual and racial harass-ment.18 Further, EEOC regula-tions presume that requiringemployees to speak onlyEnglish in the workplace, ifapplied to all employees all thetime, is a burdensome term ofemployment, and prejudices aperson’s employment oppor-tunities on the basis of national origin.19

English-only requirements are discussedfurther on page 21.

Immigration Reform and Control ActThe Immigration Reform and ControlAct (IRCA) not only prohibits nationalorigin discrimination20 but alsoprohibits discrimination on the basis ofcitizenship against citizens or nationalsof the United States and “intendingcitizens.”21 To claim protection underthe act, a noncitizen must be an alienwho (1) has been lawfully admitted as apermanent resident, (2) has beenlawfully admitted as a temporaryresident, (3) has been admitted as arefugee, or (4) has been grantedasylum.22 The protections granted byIRCA do not apply to aliens who do notseek naturalization within certain timelimits.23

IRCA applies to all public and pri-vate employers with three or more em-ployees. However, IRCA specifically

addresses any potential overlap withEEOC complaints, providing that anemployer facing a charge of discrimina-tion under Title VII will not face a chargeof an unfair, immigration-related em-ployment practice under IRCA.24 Further,IRCA permits an employer to discrimi-nate on the basis of citizenship if it is“otherwise required to comply with law,regulation, or executive order, or requiredby Federal, State, or local governmentcontract.” Likewise, an employer maydiscriminate on the basis of citizenshipwhen “the Attorney General determines

20 p o p u l a r g ov e r n m e n t

confer on aliens protection against pri-vate discrimination in the making ofcontracts—under the plain language ofthe provision, ‘all persons,’ blacks andaliens, receive the same protectionsagainst discrimination.”36 In other words,a person may state a viable claim underSection 1981 against a public or privateemployer if he or she can demonstratethat he or she was prohibited fromentering into an employment contractsolely on the basis of alienage.

USA PATRIOT ActCongress enacted the USA PATRIOTAct “to deter and punish terrorist actsin the United States and around theworld, to enhance law enforcement in-vestigatory tools, and for other pur-poses.”37 Most of the act is not relevantto employment discrimination based onnational origin. However, one provisionconcerning biological weapons prohibitssome people, including certain aliens,from working with “select agents” (sub-stances such as certain viruses, bacteria,rickettsiae, fungi, toxins, and recom-binant organisms).38 First, the actprohibits any “alien illegally or unlaw-fully in the United States” from workingwith such agents.39 Second, it prohibitsa national of a country designated bythe secretary of state as a supporter ofinternational terrorism from workingwith select agents.40 The term “alien” asused in the USA PATRIOT Act has thesame meaning as in the Immigrationand Nationality Act41—that is, “anyperson not a citizen or national of theUnited States.”42

The USA PATRIOT Act further barsany person, regardless of alienage, fromworking with select agents if the person

• is under indictment for a crimepunishable by imprisonment for aterm exceeding one year;

• has been convicted in any court of acrime punishable by imprisonmentfor a term exceeding one year;

• is a fugitive from justice;• is an unlawful user of any controlled

substance (as defined in Section 102 of the Controlled SubstancesAct);43

• has been adjudicated as a “mentaldefective” or has been committed toany mental institution; or

• has been discharged from the ArmedServices of the United States underdishonorable conditions.44

If a government agency performs re-search using select agents, it should adopta policy or procedure to ensure that theforegoing restrictions are in place andmonitored so that no person is hired inviolation of the USA PATRIOT Actprovisions.45 Violations of the restrictionsmay result in a fine or imprisonment.46

State Laws and Regulations onNational Origin Discrimination

North Carolina likewise prohibits dis-crimination based on national origin.The state constitution states that “noperson shall be denied the equal protec-tion of the law; nor shall any person besubjected to discrimination by the Statebecause of race, color, religion, or na-tional origin.”47 In the employmentcontext, the state has enacted the StatePersonnel Act (SPA)48 and the EqualEmployment Practices Act (EEPA),49

both of which prohibit discriminationbased on national origin. The SPAgoverns conditions of employment formost state employees, including classi-fication of positions, compensationranges, leave earnings and retention,and eligibility to file grievances. TheSPA also has provisions applicable to allstate employees, such as those pertainingto the privacy of personnel records. Anemployee subject to the grievance anddispute resolution procedures estab-lished by the SPA must bring a nationalorigin complaint under it.50

Also for employees subject to the SPA,the Office of State Personnel has imple-mented an Unlawful Workplace Harass-ment Policy that covers national originharassment and provides a mechanismfor resolution of complaints.51

Any other North Carolina employeeof a private or public employer canallege that his or her discharge violatedthe public policy against national origindiscrimination stated in the EEPA.52 Tobring a complaint of wrongful dischargein violation of public policy, a personmust show that he or she was perform-ing his or her job competently and wasdischarged in violation of an expresspolicy in the North Carolina Constitu-

tion or General Statutes.53 The EEPAcontains such a statement. However, theEEPA does not describe any remedies.54

A court addressing a complaint ofwrongful discharge therefore will lookto Title VII cases in analyzing whetherthe discharge was discriminatory and infashioning an appropriate remedy. Asyet, though, there have been no reportedNorth Carolina cases on wrongfuldischarge based on national origin.

Cases on National OriginDiscrimination

Many cases in both the private and thepublic employment context have furtheranalyzed (and occasionally clarified) thedefinition of national origin discrimina-tion under Title VII.

Courts have recognized two generalkinds of claims under Title VII: dis-parate treatment and disparate impact.Claims of “disparate treatment” basedon national origin arise when an em-ployer treats an individual or a groupdifferently from others because ofnational origin. These claims often arereferred to as “intentional discrimina-tion” claims. To state a claim of dis-parate treatment, a plaintiff mustinitially show that he or she is a memberof the protected class, that he or she wasqualified for the position in question,that he or she suffered an adverseemployment action, and that there is aconnection between his or her protectedstatus and the action taken (or that heor she was replaced by someone not inthe protected class). Claims of “dispar-ate impact” based on national originarise when a facially neutral policy orpractice that is applied uniformly never-theless affects a group negatively. Tostate a claim of disparate impact, aperson must allege that he or she is amember of a protected class and that anemployer’s policy or practice has nega-tively affected that class.

In either case a person must makemore than a conclusory allegation ofdiscrimination. The person may notmerely state that he or she is of a certainnational origin and has suffered anadverse employment action. The personmust provide information that supportsa connection between the two facts.55

There have been no reported cases

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interpreting North Carolina law in thisarea. However, the federal Title VIIcases are informative because NorthCarolina courts are likely to use federalcase law in analyzing state-based claims.

Always Speaking EnglishAs noted earlier, EEOC regulations statethat requirements that employees speakonly English in the workplace all thetime, in the absence of a BFOQ, will bepresumed to violate Title VII.56 Forexample, one federal district court heldthat dismissal of an employee forspeaking two words of Spanish violatedTitle VII because the employer couldprovide no business justification for sorigidly restricting the use of Spanish.57

Other courts have supported theEEOC’s interpretation.58

EEOC regulations allow an employerto require that employees speak onlyEnglish at certain times if the employershows that a “business necessity”justifies such a requirement.”59 Courtshave repeatedly found a sufficientbusiness necessity to justify English-onlyrules. Garcia v. Gloor was the first caseto address the issue substantively.60 Inthis case the employer prohibited em-ployees from speaking Spanish on thejob unless they were communicatingwith Spanish-speaking customers. Theemployer gave several business reasonsfor the prohibition: making all employeecommunications understandable toEnglish-speaking customers; helping

train Spanish-speaking employees in theuse of English; and permitting non-Spanish-speaking supervisors to under-stand and oversee the work of theirsubordinates better. The plaintiff in thecase was a bilingual employee who waseventually fired for continuing to speakSpanish at work. The Fifth CircuitCourt held that Title VII did not protectlanguage preferences and that the em-ployer’s restriction did not amount tonational origin discrimination.

In Garcia v. Spun Steak Co., theNinth Circuit Court of Appeals alsoupheld an employer rule that employeesspeak English while on the job.61 Therule was established to promote racialharmony and enhance worker safety.The court stated that Congress enactedTitle VII with the expectation thatmanagement prerogatives would be leftundisturbed to the greatest extentpossible. The court then reasoned thatTitle VII does not confer substantiveprivileges and that an employer is notrequired to allow employees to expresstheir cultural identity. The court heldthat the bilingual employee was notdenied a privilege of employment by theEnglish-only policy because it did nothave a significant impact on a protectedgroup of employees.62 The courtextended its reasoning from an earliercase in which it had held that a bilingualHispanic radio host could not sue forbeing discharged because he refused tospeak only English on his program.63

A district court in the Fourth Circuitaccepted similar reasoning in a casebrought by bilingual employees whochallenged the employer-bank’s English-only requirement.64 The employees werepermitted to speak Spanish only toassist Spanish-speaking customers; theywere otherwise required to speak English.The court held that the policy did notconstitute national origin discrimination.It accepted the reasoning from Garcia v.Spun Steak Co., stating that an employerhas a right to define the parameters ofthe privilege of employment, definingwhen and where employees may con-verse while on the job, and prohibitingsome manners of speech. The court alsostated, “[D]enying bilingual employeesthe opportunity to speak Spanish on thejob is not a violation of Title VII. Thereis nothing in Title VII which protects or

22 p o p u l a r g ov e r n m e n t

provides that an employee has a right to speak his or her native tongue whileon the job.”65

The Garcia v. Spun Steak Co. analysisalso was applied in a Pennsylvania casein which a district court held that theemployer-church’s English-only rule didnot constitute national origin discrimi-nation when applied to a bilingual Polish-American employee.66 According to thecourt, the church had a valid businessjustification for the rule: it was trying toimprove interpersonal relations at thechurch and prevent alienation of churchemployees from church members.67

In light of these cases, an employer’sEnglish-only rule may be upheld if theemployer has a legitimate work-relatedbasis for the rule. For example:

• Promoting harmony among racial ornational origin groups

• Enhancing workers’ safety• Enhancing product quality• Preventing employees from using

language to isolate or intimidatemembers of other ethnic groups

• Alleviating tension in the workplace68

Accent

Allegations of discrimination based onaccent fall within the EEOC’s protectionof the linguistic characteristics of anational origin group.69 Clearly a per-son’s accent is immediate informationthat he or she is not a native of America,and allegations that an employmentdecision was taken on the basis of anemployee’s or an applicant’s accent willbe closely reviewed by the EEOC andthe courts.

Accent cases have arisen in a varietyof employment contexts. In a case in-volving denial of a promotion, theNinth Circuit Court of Appeals heldthat a Pakistani-born auditor couldintroduce into evidence an administra-tor’s comment, made in a demeaningtone, that he could not understand theauditor’s accent and could not see howthe auditor expected to be a supervisorif the auditor could not communicatewith people.70 In another case involvingdenial of a promotion, the Sixth CircuitCourt of Appeals affirmed a districtcourt decision that there was nationalorigin discrimination when the employer

did not know the employee’s nationalorigin but did know that the employeehad a foreign accent.71 The employeewas a native of Poland who had earneda master’s degree in communicationsand whose knowledge of English ex-ceeded that of the average adult Ameri-can, even though she retained a pro-nounced accent. The district court foundthat she had been denied two promo-tions because of her accent, “whichflowed from her national origin.”72

In a demotion case, the Tenth CircuitCourt of Appeals held that an employeeof Filipino origin was improperly de-moted from laboratory supervisor tolaboratory technician with less responsi-bility because of opinions held by somefaculty members that his national originand accent made him unsuitable as asupervisor.73

In a termination case, the EighthCircuit Court of Appeals held that therewas an inference that a supervisor’s illwill played a role in the decision to dis-charge an Iranian ultrasound technolo-gist and that the former employee couldtherefore proceed with her claim ofnational origin discrimination.74 Thesupervisor had ridiculed the employee’saccent and had made comments aboutforeigners taking jobs from Americans.Further, on note cards at home, thesupervisor had compiled a list ofallegedly substandard ultrasound examsperformed by the employee, but she hadkept no such lists on other employees.

However, although an employee mayestablish an initial claim of nationalorigin discrimination based on accent,an employer may offer legitimate reasonsfor the action. For example, when anemployee’s accent interferes with his orher job performance, an employer maylegitimately consider this effect in makingemployment decisions. The NinthCircuit Court of Appeals recognized thispossibility in a case holding that anadverse employment decision may bepredicated on a person’s accent when—but only when—the accent materiallyinterferes with job performance.75 Theposition in question in the case wasclerk for Honolulu’s motor vehicledepartment. It required constant publiccontact, in which speaking clearly wasan important skill.

Similarly, employers may legitimately

consider communication skills indeciding which customer service repre-sentatives to terminate in a workforcereduction, because customer servicepositions necessarily require communi-cation with the public.76 Also, employersmay examine an employee’s history ofinsubordination and interpersonal diffi-culties with co-workers when consideringwhether or not to take disciplinaryaction. A person’s speaking with anaccent does not shield him or her fromthe reasonable work expectations of theemployer.77

A federal district court in North Carolina held that an insurance salesmanwho spoke with a strong accent was discharged for reasons other than hisaccent.78 Although the employee hadbeen a successful insurance agent beforeand after employment with the de-fendant insurance company, the courtfound that he was terminated for notselling enough insurance. The courtfurther found that he had failed tocomply with the company’s trainingrequirements and had violated companypolicy by airing grievances in the workenvironment.

In an educational setting, courts haveaffirmed that the ability to communicateclearly can be a job requirement forteachers. The Ninth Circuit Court ofAppeals upheld a decision that found nonational origin discrimination when acommunity college did not hire a womanof Indian national origin as an instructorbecause of her difficulty communicatingin the English language.79 Other courtshave held that denying a promotion ortenure to a faculty member who haddifficulty speaking English did not violateTitle VII.80

The EEOC and the courts will closelyexamine any job-related decision al-legedly based on accent to ensure thatthe employer’s decision is justified andnot a proxy for national origin discrim-ination.81

AffiliationsAs noted earlier, the EEOC also protectspeople from national origin discrimina-tion based on their affiliations, such asmarriage to a member of a nationalorigin group or participation in schools,churches, temples, or mosques generallyused by people of a national origin

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group.82 This interpretation may gobeyond the original intent of thestatute and is not a common basisof complaint. However, it has beenaccepted by some courts.

In one case a female employeebrought a complaint alleging thatshe was discharged, was refusedreemployment, and was then barredfrom other employment because of herformer employer’s persistent release offalse and derogatory references.83 TheDistrict of Columbia Circuit Court ofAppeals held that if the employee’sdischarge was based on her sex or herspouse’s Arabic ancestry, the actionconstituted discrimination in violationof Title VII. In another case a districtcourt held that the plaintiff’s allegationof discrimination based in part on hisparents’ national origin was sufficientlyassociated with a charge of discriminationbased on his own national origin.84

Employers should use these cases asreinforcement that an employment de-cision must be based on the employee’sjob-related qualifications or performance,rather than on his or her outside affilia-tions or associations. This is particularlytrue in the public sector, where the gov-ernment should be especially attentive toan employee’s right to freedom of asso-

ciation and should ensure that the emplo-yee’s constitutional rights are honored.

Alienage or CitizenshipThe EEOC does not consider an employ-ment decision based on citizenship toviolate Title VII unless it has the purposeor effect of discriminating against aperson on the basis of national origin.85

The leading case under Title VII isEspinoza v. Farah Manufacturing Com-pany.86 In this case the Supreme Courtheld that Title VII protects aliens fromillegal discrimination but does not makediscrimination based on citizenship oralienage illegal. In Espinoza the em-ployer refused to hire the plaintiff becauseof its long-standing policy of not hiringaliens. The plaintiff alleged that therefusal to hire her because of her alien-age constituted national origin discrimi-nation. The Court rejected this argument,finding no indication that the employer’spolicy against employment of aliens had

the purpose or effect of discriminatingagainst people of Mexican nationalorigin. The Court noted that U.S. citizen-ship was required for federal employ-ment and that interpreting “nationalorigin” to encompass citizenship wouldresult in a determination that Congressflouted its own declaration of policy.The Court found no reason to believethat “national origin” should bebroader in scope for private employersthan for the federal government.87

The line between citizenship andnational origin is not always clear. Forexample, a Mississippi court heard theclaim of an American who alleged that,after a Canadian consulting group beganmanaging the defendant corporation, hewas terminated in favor of a Canadiancitizen who was less experienced andless qualified. The Canadian employertried to have the case dismissed becausethe plaintiff stated his American citi-zenship as the basis of the complaint.The employer argued that Title VII doesnot protect citizenship. However, thecourt held that the American employeehad intended to state a claim of nationalorigin discrimination and that he couldproceed with his case.88

An applicant, an employee, or aformer employee therefore cannot suc-ceed in a Title VII claim of nationalorigin discrimination by alleging solelythat his or her citizenship was the basisfor the adverse employment decision.Other indicators of national origindiscrimination must be involved to formthe basis of the claim, and an applicant,an employee, or a former employeeshould not rely on the court to recraft acitizenship complaint into a nationalorigin complaint. Employers shouldremember, however, that IRCA protects“intending citizens”89 and that Section1981 of the U.S. Code has been held toprohibit discrimination by public andprivate entities on the basis of alienage.So an applicant’s, employee’s, or formeremployee’s claim based on citizenshipalone may be actionable under otherfederal statutes.90

“American” National OriginCourts have considered actions takenon the basis of an employee’s Americannational origin to be a violation of TitleVII. For example, the Seventh Circuit

24 p o p u l a r g ov e r n m e n t

Court of Appeals has stated, “[W]e mayassume that just as Title VII protectswhites from discrimination in favor ofblacks as well as blacks from discrimi-nation in favor of whites, so it protectsAmericans of non-Japanese origin fromdiscrimination in favor of persons ofJapanese origin.”91 Similarly a federaldistrict court has held that “employ-ment discrimination against Americancitizens based merely on country of birth,whether that birthplace is the UnitedStates or elsewhere, contradicts thepurpose and intent of Title VII, as wellas notions of fairness and equality.”92

These holdings are analogous to “re-verse” race discrimination decisions.

One important consideration in thesetypes of claims is whether the employeris an American company or a foreignone. Many countries have treaties withthe United States that permit employ-ment decisions to be made on the basisof citizenship.93 So, for example, theSeventh Circuit Court of Appeals heldthat a Japanese company’s preferencefor hiring Japanese citizens in executivepositions did not constitute nationalorigin discrimination against Americancitizens, in large part because of theexpress terms of a treaty of friendshipbetween the two countries.94 A treatysupersedes Title VII, and these holdingsare an important reminder that nationalorigin and citizenship are not inter-changeable in alleging discrimination.

Given America’s history of immigra-tion, it is not surprising that someonemay consider himself or herself to be anAmerican, yet maintain ties to anothercountry or heritage. Such a self-imagewas at issue in a case in which an Italian-American former employee of an Italianinternational airline alleged that hisfailure to be promoted to personnelmanager for employees in the UnitedStates, Mexico, and Canada was dis-crimination on the basis of his Ameri-can national origin.95 The court framedthe issue as “whether the plaintiff’snational origin is American, because hewas born in this country, or Italian, be-cause his ancestors were born in Italy.”96

The employee contended that he hadtwo national origins, but the courtconcluded that his national origin wasItalian since his ancestors were Italian,and it held that he failed to state a claim

when he was replaced by an Italian.97

The court noted that “perhaps onlyAmerican Indians can claim to be ofAmerican national origin for purposes ofTitle VII.”98 This reasoning was rejectedin a later case. The court stated, “Underthat rationale, then no one born in theUnited States, not even an AmericanIndian (whose ancestry is actuallyAsian), could ever sue under Title VIIfor national origin discrimination. Thiswould be an absurd result and is clearlyforeclosed by the explicit holding inEspinoza.”99

A better approach may be to analyzesuch claims on a case-by-case basis,determining how removed a person isfrom his or her ancestors’ country (orcountries) of origin or whether the per-son retains the physical, cultural, andlinguistic characteristics of his ancestors’country (or countries) of origin asdescribed by the EEOC. For example, a sixth-generation Italian-American who speaks fluent, accent-free English,dresses in American fashion, andmaintains no connection to Italy mightbe considered to be of American na-tional origin whereas a first-generationItalian-American might not.

AncestryAncestry is the original and undisputedbasis of coverage for national origindiscrimination.100 As one court hasstated, “[N]ational origin on its facerefers to the country where a personwas born, or more broadly, the countryfrom which his or her ancestors came.”101

Ancestry can apply to natives of theUnited States of America as well as tothose of other countries.

Current geographical boundaries anddivisions are not necessary to state aclaim of national origin discriminationbased on ancestry. Ancestry is coveredeven if the country of origin no longerexists. For example, the Ninth CircuitCourt of Appeals ruled that a native ofSerbia might be protected under TitleVII even though Serbia was not acountry at the time of the case.102

Further, in another case that court ruledthat a member of an Indian tribe mightstate a claim for national origin dis-crimination when he was not hired for aposition because of his tribal member-ship.103 The court held that a claim of

national origin discrimination ariseswhen discriminatory practices are basedon the place in which one’s ancestorslived. This definition does not requireidentification of a country. As the courtstated, “[T]he different Indian tribes aregenerally treated as domestic dependentnations that retain limited powers ofsovereignty.”104

A person’s ethnic background—nottied to a particular country or region—also may be the basis for a claim ofnational origin discrimination. For ex-ample, one court has found a native-bornAmerican of Acadian descent (Acadiansare French people who settled in Louisi-ana) to be protected by Title VII.105

Another court has held that being aGypsy (one of a group that migratedfrom India to Europe in the fourteenthor fifteenth century and today maintainsa migratory way of life) falls withinTitle VII’s protection, making it an un-lawful employment practice for an em-ployer to discriminate against a personon the basis of that ancestry.106

Employers should ensure that ances-try is not used as a basis for employmentdecisions. More important, they shouldreinforce to all employees that ancestryis broader than a person’s country oforigin and can encompass heritagessuch as tribal status and ethnicity.

AppearanceA person’s appearance, when related tohis or her national origin, generallyshould not be a basis of consideration ina job-related decision. In a Louisianacase, two employees (one of Filipinoancestry and one of African-Americanancestry) brought a complaint ofnational origin discrimination followingtheir terminations.107 The district courtheld that supervisors’ comments aboutthe plaintiffs’ looks and skin complexionprovided enough evidence of suchdiscrimination.

Another district court has stated thathaving the appearance of a particularnational origin group, without havingthe corresponding ancestry, is a suffi-cient basis for a claim of national origindiscrimination. In a case involving a de-nial of a promotion and a hostile workenvironment based on the plaintiff-employee’s alleged American Indian an-cestry,108 the employee had no discernible

f a l l 2 0 0 2 25

Indian ancestry based on genealogicaland census data. Additional informa-tion, however, demonstrated that theemployee reasonably believed himself tobe of Indian ancestry and that the em-ployer treated him as being of Indiandescent. The court stated, “[T]he em-ployer’s reasonable belief that a givenemployee is a member of a protectedclass . . . controls this issue.” The courtheld that “objective appearance and employer perception are the basis fordiscrimination and . . . the key factorsrelevant to enforcing rights grantedmembers of a protected class.”109

These cases teach that appearance isnot a valid basis for an employmentdecision. Employers should carefullyevaluate an applicant’s or employee’sknowledge, skills, and abilities and usethe resulting information to reach adecision. Employers should never makepresumptions about national originbased on the way an applicant or anemployee looks or dresses.

Conclusion

National origin discrimination has notbeen as pervasive a public problem inthe workplace as race and sex discrimi-nation have been. In fiscal year 2000,the EEOC received 7,800 nationalorigin complaints.110 For that sameperiod, it received more than 59,000Title VII complaints (race, sex, nationalorigin, and religion).111 However,national origin complaints may rise inthe next few years. Both the increase inthe number of immigrants to the UnitedStates and the focused world effortsagainst terrorism may cause someAmericans to reconsider their ideasabout national origin and the country’scharacter. As national change andinternational unrest continue, managersmust take care not to base employmentdecisions on factors unrelated to a per-son’s ability to perform a particular job.

An employer can demonstrate itscommitment to diversity and tolerancein the workplace in several ways. First,it can publicize its policies affirmingcommitment to and support of equalemployment opportunity. Second, it canoffer supervisors and managers trainingon national origin discrimination,defining permissible and impermissible

factors to consider in making employ-ment decisions, identifying harassingbehaviors in the workplace among co-workers, and demonstrating how tominimize the potential for an unwelcomework environment for any employee.Third, it can periodically inform em-ployees of processes available to addressconcerns across the organization aboutnational origin harassment or discrimi-nation, and promptly address anyconcerns brought forward.

Moreover, in times of uncertaintyand crisis, public employers have a broadresponsibility to ensure that minorityopinions are heard and respected. Publicemployees and citizens must trust thatthe government will not squelch theiropinions.112 To preserve governmentalintegrity, public employers should ac-tively provide employees, clients, andcommunity members with access toopinions, ideas, and perspectives thatcut across nationalities.

Notes

1. From the poem entitled The NewColossus, by Emma Lazarus.

2. See www.ins.gov for statistics related toimmigration to the United States. From 1991to 2000, the United States averaged 900,000legal immigrants per year.

3. See information available from the UnitedStates Dep’t of Commerce, Office of Traveland Tourism Industries, online at www.tinet.ita.doc.gov/view/q-2000-1st-001/index.html?ti_cart_cookie=20020411.190624.06599.This number is a marked increase from fiscalyear 1999, in which 31 million temporaryvisitors came to the United States. See THE

1999 STATISTICAL YEARBOOK tbl. 35, availableonline at www.ins.gov/graphics/aboutins/statistics/Temp99tables.pdf.

4. IMMIGRATION AND NATURALIZATION

SERV., THE TRIENNIAL COMPREHENSIVE REPORT

ON IMMIGRATION 56 (Washington, D.C.: INS,May 1999), available online at www.ins.gov/graphics/aboutins/repsstudies/report.pdf.

5. See North Carolina Office of MinorityAffairs, Hispanic/Latino Office, at http://minority affairs.state.nc.us/hispaniclatino/hislatfacts.htm.

6. The American-Arab Anti-DiscriminationCommittee cites knowledge of more thansixty cases in which people perceived to beArab have been expelled from aircraft duringor after boarding on the grounds thatpassengers or crew do not like the way theylook. For more information about reports ofdiscrimination against Arab-Americansfollowing the September 11 attacks, see the

American-Arab Anti-DiscriminationCommittee fact sheet available online atwww.adc.org/ index.php?id=282.

7. The formal name for this law is theUniting and Strengthening America by Pro-viding Appropriate Tools Required to Interceptand Obstruct Terrorism Act of 2001. Pub. L.No. 107-56, 115 Stat. 271 (2001).

8. See www.ncgov.com/asp/subpages/task_force_summary.asp.

9. H. 1472: An Act Directing theDepartment of Health and Human Services toEstablish a Biological Agents Registry, andImposing Civil Penalties for Violation ofRegistry Requirements. It became effective onJanuary 1, 2002, and is codified at Section130A-149 of the NORTH CAROLINA GENERAL

STATUTES (hereinafter G.S.).10. The civil penalty for a willful or

knowing violation of the law can be up to$1,000 per instance, and each day of acontinuing violation is a separate offense. j27G.S. 130A-149(f).

11. For a more thorough discussion of thestate’s actions related to bioterrorismpreparedness, see Jill D. Moore’s articleentitled “Unnatural Disasters: Bioterrorismand the Role of Government,” in POPULAR

GOVERNMENT, Summer 2002, at 4. NorthCarolina also has established an official Website with comprehensive information relatedto the state’s efforts to improve safety andsecurity in the state: www.ncgov.com/asp/subpages/safety_security.asp.

12. 42 U.S.C. §§ 2000e through 2000e-17.13. 29 C.F.R. § 1606.1.14. 29 C.F.R. § 1606.3. See also 42 U.S.C.

§ 2000e-2(g).15. 29 C.F.R. § 1606.4. See also 42 U.S.C.

§ 2000e-2(e).16. A discussion of certain employment

restrictions relevant to some public-sectorpositions appears in the section on the USAPATRIOT Act later in this article.

17. 29 C.F.R. § 1606.1.18. 29 C.F.R. § 1606.8. Courts, including

the Fourth Circuit Court of Appeals (whosedecisions affect North Carolina), haveaccepted national origin harassment claims aswell. See Amirmokri v. Baltimore Gas &Electric Co., 60 F.3d 1126 (4th Cir. 1995);Boutros v. Canton Regional Transit Auth.,997 F.2d 198 (6th Cir. 1993).

19. 29 C.F.R. § 1607(a).20. 8 U.S.C. § 1324b(a)(1)(A).21. 8 U.S.C. § 1324b(a)(1)(B).22. 8 U.S.C. § 1324b(a)(3)(B).23. Id.24. 8 U.S.C. §§ 1324b(a)(2)(B), 1324b(b)(2).

Section 1324b(b)(2) states, in part, “[N]ocharge may be filed respecting an unfairimmigration-related employment practice . . .if a charge with respect to that practice basedon the same set of facts has been filed with theEEOC under Title VII of the Civil Rights Act

of 1964, unless the charge is dismissed asbeing outside the scope of such title.”

25. 8 U.S.C. § 1324b(a)(2)(C).26. 8 U.S.C. § 1324b(a)(4).27. The Thirteenth Amendment (Slavery

and Involuntary Servitude) to the Constitutionreads in its entirety:

Section 1. Neither slavery nor involuntaryservitude, except as a punishment for crime whereof the party shall have beenduly convicted, shall exist within the United States, or any place subject to theirjurisdiction. Section 2. Congress shall have power to en-force this article by appropriate legislation.

28. See Civil Rights Act of 1866 ch. 31, § 1, 14 Stat. 27 (1866); Voting Rights Act of 1870 ch. 114, § 18, 16 Stat. 140 (1870).See also Runyon v. McCrary, 427 U.S. 160,168–70 (1976).

29. 42 U.S.C. § 1981(a). Before the 1991amendments, this section constituted theentire text of Section 1981.

30. 42 U.S.C. § 1981(b).31. 42 U.S.C. § 1981(c). There was some

discussion before the 1991 amendmentsabout whether Section 1981 covered dis-crimination by private entities. However, thediscussion was rendered moot by the additionof this section, which reads in its entirety,“The rights protected by this section areprotected against impairment by nongovern-mental discrimination and impairment undercolor of State law.” See Pub. L. No. 102-166,§ 101, 105 Stat. 1071 (1991).

32. St. Francis College v. Al-Khazraji, 481U.S. 604, 613 (1987). See also Alizadeh v.Safeway Stores, 802 F.2d 111, 114 (5th Cir.1986) (holding that white woman married toman of Iranian national origin establishedclaim under Section 1981 by alleging that heremployer discriminated against her becauseher husband was of “a race other thanwhite”); Ortiz v. Bank of America, 547 F. Supp. 550, 568 (E.D. Ca. 1982) (holdingthat plaintiff of Puerto Rican descent andaccent who was denied promotions andeventually terminated had cause of actionunder Civil Rights Act).

33. See Graham v. Richardson, 403 U.S.365, 377 (1971).

34. See Duane v. GEICO, 37 F.3d 1036 (4th Cir. 1994).

35. Id. at 1041. See also Jones v. Alfred H.Mayer Co., 392 U.S. 409, 426 (1968);Runyon v. McCrary, 427 U.S. 160, 170–71(1976).

36. Duane, 37 F.3d at 1043. This reasoningwas later adopted by the Second CircuitCourt of Appeals in Anderson v. Conboy, 156F.2d 167 (2nd Cir. 1998) (holding that Section1981 proscribes alienage discrimination byprivate entities with respect to right to makeand enforce contracts).

37. Pub. L. No. 107-56, 115 Stat. 272(2001).

38. Pub. L. No. 107-56, § 817, 115 Stat.272, 385 (2001). The biological weaponsprovisions are found at 18 U.S.C. §§ 175–178.Select agents are defined in 42 C.F.R. § 72.6(j)and specified in 42 C.F.R. pt. 72, app. A.They do not include biological agents ortoxins exempted in 42 C.F.R. § 72.6(h) and42 C.F.R. pt. 72, app. A.

39. Pub. L. No. 107-56, § 817, 115 Stat.272, 386 (2001), amending 18 U.S.C. §§ 175–178 (Biological Weapons).

40. Id. Currently the secretary of state hasdetermined that Cuba, Iran, Iraq, Libya,North Korea, Sudan, and Syria are bannedcountries for this purpose.

41. Pub. L. No. 107-56, § 817, 115 Stat.272, 386 (2001), citing the Immigration andNationality Act at 8 U.S.C. § 1101(a)(3).

42. 8 U.S.C. § 1101(a)(3).43. 21 U.S.C. § 802. 44. Pub. L. No. 107-56, § 817, 115 Stat.

272, 386 (2001).45. The Bioterrorism Act recently enacted

by Congress to strengthen the nation’s pre-paredness for bioterrorism and other publichealth emergencies also requires backgroundchecks and registration of people workingwith select agents. Pub. L. No. 107-188, § 201, 116 Stat. 594, 637–646 (2002). Also,if an employer uses an outside company toperform any criminal record (or other back-ground) check on applicants for these posi-tions, it must comply with the notice and useprovisions of the Fair Credit Reporting Act. A detailed discussion of the requirements ofthat act is beyond the scope of this paper. Itcan be found at 15 U.S.C. §§ 1681–1681u.

46. Pub. L. No. 107-56, § 817, 115 Stat.272, 386 (2001).

47. N.C. CONST. art. I, § 19.48. G.S. 126-16. This section reads as

follows: “All State departments and agenciesand all local political subdivisions of NorthCarolina shall give equal opportunity foremployment and compensation, withoutregard to . . . national origin, to all personsotherwise qualified, except where specific age,sex or physical requirements constitute bonafide occupational qualifications [BFOQ]necessary to proper and efficient administra-tion.” Note that the BFOQ exception doesnot include national origin.

49. G.S. 143-422.1 through -422.3. TheEEPA states, “[I]t is the public policy of thisState to protect and safeguard the right andopportunity of all persons to seek, obtain andhold employment without discrimination orabridgement on account of . . . nationalorigin.” G.S. 143-422.2.

50. Current and former state employeesmust bring their complaints of national origindiscrimination under G.S. 126-34.1(a)(2) and-34.1(a)(10). Applicants for state employmentmust bring their complaints under G.S. 126-34.1(b). These statutes provide for a hearingbefore the Office of Administrative Hearings.

51. 25 N.C.A.C. § 1C.0214.52. One of the fundamental principles of

employment in North Carolina is employ-ment at will. See Sides v. Duke Univ., 74 N.C.App. 331, disc. review denied, 314 N.C. 331(1985). See also Kurtzman v. AppliedAnalytical Indus., 347 N.C. 329 (1997).“Employment at will” means that either theemployer or the employee may terminate therelationship at any time for any reason or forno reason, but an employee may not bedischarged for an illegal reason. There is acourt-made, or common law, exception to this doctrine: an employer may not dischargean employee if doing so would contravenepublic policy.

53. See Considine v. Compass Group, USA,145 N.C. App. 314, 320–21 (2001).

54. An employee may bring a claim underTitle VII and a concurrent wrongful dischargeclaim based on a violation of North Carolinapublic policy. See Hughes v. Bedsole, 913 F. Supp. 420, 429 (E.D.N.C. 1995), aff’d, 48F.3d 1376 (4th Cir. 1995). However, in en-acting the EEPA, “the North Carolina legis-lature chose not to provide any remediesbeyond those available under federal discrimi-nation statutes. It is unlikely that the NorthCarolina courts would disturb this legislativedecision by providing a common law remedyfor wrongful discharge beyond the procedureenvisioned by Title VII.” Percell v. IBM,765 F. Supp. 297, 302 (E.D.N.C. 1991), aff’d, 23 F.3d 402 (4th Cir. 1994). See alsoSpagnuolo v. Whirlpool Corp., 467 F. Supp.364 (W.D.N.C. 1979). There is no legislativehistory to explain why the legislature chosenot to establish a separate remedial scheme.Note, though, that a tort claim, such aswrongful discharge in violation of publicpolicy, may be heard in a state court insteadof a federal court. In that circumstance adischarged employee has a longer period inwhich to file a complaint.

55. See, e.g., Bender v. Suburban Hosp.,159 F.3d 186 (4th Cir. 1998); Simpson v.Welch, 900 F.2d 33 (4th Cir. 1990).

56. 29 C.F.R. § 1606.7(a). 57. Saucedo v. Brothers Well Serv., 464

F. Supp. 919 (S.D. Tex. 1979).58. EEOC v. Premier Operator Servs.,

113 F. Supp. 2d 1066, 1073 (N.D. Tex. 2000)(“[A] blanket policy or practice prohibitingthe speaking of a language other than Englishon an employer’s premises at all times, exceptwhen speaking to non-English speakingcustomers, violates Title VII’s prohibitionagainst discrimination based on nationalorigin”); EEOC v. Synchro-Start Prods., 29 F. Supp. 2d 911 (N.D. Ill. 1999) (holding thatemployer’s English-only rule supported na-tional origin claim under Title VII). Somecourts have rejected the EEOC presumptionagainst English-only policies, however. See,e.g., Garcia v. Spun Steak Co., 998 F.2d 1480,1490 (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

f a l l 2 0 0 2 27

. . . anything in the legislative history to TitleVII that indicates that English-only policiesare to be presumed discriminatory”); Long v.First Union Corp. of Va., 894 F. Supp. 933,940 (E.D. Va. 1995) (“The EEOC’s determi-nation that the mere existence of an English-only policy satisfies the plaintiff’s burden ofproof is not consistent with the drafting of thestatute but is rather agency-created policy.The plaintiff still bears the burden of showinga prima facie case of discrimination”); Kaniav. Archdiocese of Philadelphia, 14 F. Supp. 2d730, 735–36 (E.D. Pa. 1999) (“Despite thedeference ordinarily due to official adminis-trative guidelines and regulations, suchguidelines and regulations may not exceed theauthority of the statute they purport to inter-pret. . . . Therefore, the Court shall disregardthe EEOC Guidelines in determining whetherthe Defendants have engaged in nationalorigin discrimination”). All these cases arediscussed in more detail within this section.

59. 29 C.F.R. § 1606.7(b).60. Garcia v. Gloor, 618 F.2d 264 (5th Cir.

1980).61. Garcia v. Spun Steak Co., 998 F.2d

1480. See also Tran v. Standard Motor Prods.,10 F. Supp. 2d 1199, 1210 (D. Kan. 1998)(holding that policy requiring employees tospeak English during meetings and whileworking did not constitute hostile work en-vironment in violation of Title VII when therewas legitimate business reason for enactingpolicy, no evidence that policy was strictlyenforced or any employee was ever disciplinedfor violating policy, and no adverse action oreffect on employee-complainant).

62. Id. at 1487–88.63. Jurado v. Eleven-Fifty Corp., 813 F.3d

1406 (9th Cir. 1987).64. Long v. First Union Corp. of Va., 894

F. Supp. 933 (E.D. Va. 1995). The FourthCircuit Court of Appeals affirmed thisopinion in Long, an unpublished decision at86 F.3d 1151, 1996 WL 281954 (4th Cir.1996). With an “unpublished” decision, the text of the case is available for review, but the case cannot be cited as precedent forfuture claims.

65. Long, 894 F. Supp. at 941.66. Kania v. Archdiocese of Philadelphia,

14 F. Supp. 2d 730 (E.D. Pa. 1999). 67. Although Title VII contains an

exemption for religious organizations withrespect to employment discrimination basedon religion, the exemption does not extend toa religious employer’s alleged discriminationbased on other protected characteristics. 42 U.S.C. § 2000e-1(a).

68. See also Garcia v. Gloor, 628 F.2d 264,267 (5th Cir. 1980).

69. 29 C.F.R. § 1606.1.70. Hashem v. California State Bd. of

Equalization, 200 F.3d 1035 (7th Cir. 2000).71. Berke v. Ohio Dep’t of Pub. Welfare,

628 F.2d. 980 (6th Cir. 1980).

72. Id. at 981.73. Carino v. University of Okla. Bd. of

Regents, 750 F.2d 815 (10th Cir. 1984).74. Hossaini v. Western Mo. Medical Ctr.,

97 F.3d 1085 (8th Cir. 1996).75. Fragante v. Honolulu, 888 F.2d 591,

596 (9th Cir. 1989).76. Meng v. Ipanema Shoe Corp., 73

F. Supp.2d 392 (S.D.N.Y. 1999).77. Bozicevich v. American Airlines, 17

BNA Fair Empl. Prac. Cas. 247 (S.D.N.Y.1977).

78. Bell v. Home Life Ins. Co., 596 F. Supp.1549 (M.D.N.C. 1984).

79. Gideon v. Riverside Community CollegeDist., 43 BNA Fair Empl. Prac. Cas. 910(C.D. Cal. 1985), aff’d, 800 F.2d 1145 (9thCir. 1986).

80. See Kureshy v. City Univ. of N.Y., 561 F. Supp. 1098 (E.D.N.Y. 1983) (holding thatassociate professor of geology, a native ofIndia who was denied promotion to fullprofessor on four occasions and ultimatelydenied tenure, could not show that he wasexceptional teacher as required by university);Hou v. Pennsylvania, Dep’t of Educ., SlipperyRock State College, 573 F. Supp. 1539 (W.D.Pa. 1983) [holding that associate professor ofmathematics of Chinese origin who wasdenied promotion to full professor six years ina row made prima facie case of nationalorigin discrimination but that college offeredlegitimate and nondiscriminatory reasons fordecision (average teaching and inadequatecommittee work)].

81. 45 Fed. Reg. 85,632 (Dec. 29, 1980).82. 29 C.F.R. § 1606.1.83. Shehadeh v. Chesapeake & Potomac

Tel. Co. of Md., 595 F.2d 711 (D.C. Cir.1978).

84. Fix v. Swinerton and Walberg Co., 320F. Supp. 58 (D. Colo. 1970).

85. 29 C.F.R. § 1606.5.86. Espinoza v. Farah Mfg. Co., 414 U.S. 86

(1973).87. Id. at 91.88. McMillan v. Delta Pride Catfish, 1998

WL 911775 (N.D. Miss. 1998).89. 8 U.S.C. § 1324b(a)(1)(B).90. See Graham v. Richardson, 403 U.S.

365, 377 (1971); Duane v. GEICO, 37 F.3d1036 (4th Cir. 1994).

91. Fortino v. Quasar Co., a Div. ofMatsushita Elec. Corp. of America, 950 F.2d389, 392 (7th Cir. 1991).

92. Thomas v. Rohner-Gehrig Co., 582 F. Supp. 669, 675 (N.D. Ill. 1984) (emphasisadded).

93. Id. See also MacNamara v. Korean AirLines, 862 F.2d 1135, 1144 (3d Cir. 1988)(holding that Korean company had right tochoose citizens of its own nation asexecutives); Wickes v. Olympic Airways, 745F.2d 363, 368 (6th Cir. 1984) (holding that1951 treaty between United States and Greeceafforded Greek corporations only a narrow

right to discriminate in favor of Greek citizensin filling managerial and technical positions inGreek airline’s American-based offices anddid not give Greek airline license to discrimi-nate against or among non-Greek citizenshired for positions not covered by treaty onbasis of race, sex, national origin, or anyother factors prohibited by Michigan law).

94. Fortino at 393–94. The court found thatthe company treated Japanese-Americanemployees the same as other Americanemployees. This finding supported thecompany’s defense that it was makingdecisions on the basis of citizenship, notnational origin.

95. Vicedomini v. Alitalia Airlines, 1983WL 616 (S.D.N.Y. 1983).

96. Id. at *4.97. Id.98. Id.99. McMillan, 1998 WL 911775, at *2.

100. See 42 U.S.C. § 2000e(b).101. Thomas v. Rohner-Gehrig Co., 582 F. Supp. 669 (N.D. Ill. 1984).102. Pejic v. Hughes Helicopters, 840 F.2d667 (9th Cir. 1988). At the time, Serbia was apart of Yugoslavia.103. Dawavendewa v. Salt River ProjectAgric. Improvement and Power Dist., 154F.3d 1117, 1119 (9th Cir. 1998).104. Id. at 1120. The EEOC has providedguidance in this area through a PolicyStatement on Indian Preference under TitleVII (1998). It states that the exemption forIndian preferences found at 42 U.S.C. §2000e(i), which permits businesses near anIndian reservation to announce publicly anemployment practice of preferential treatmentfor any person who is an Indian living on ornear a reservation, does not allow discrimi-nation based on tribal affiliation.105. Roach v. Dresser Indus. ValveInstrument Div., 494 F. Supp. 215 (W.D. La.1980).106. Janko v. Illinois State Toll HighwayAuth., 704 F. Supp. 1531 (N.D. Ill. 1989).107. Johnson v. Fleet Mortgage Corp., 878 F. Supp. 71 (E.D. La. 1995).108. Perkins v. Lake County Dep’t of Utils.,860 F. Supp. 1262 (N.D. Ohio 1994).109. Id. at 1277–78.110. See www.eeoc.gov/stats/origin.html.111. See www.eeoc.gov/stats/vii.html. 112. In THE LOGIC AND LIMITS OF TRUST,Bernard Barber argues that trust isfundamentally about expectations. Citizensexpect technically competent role perfor-mance from their government, which may involve “expert knowledge, technicalfacility, or everyday routine performance.”Additionally, public employees must havecognitive and moral expectations forthemselves, other employees, and thegovernmental system. BARBER, THE LOGIC

AND LIMITS OF TRUST 9 (New Brunswick, N.J.:Rutgers Univ. Press, 1983).