Legal Issues and Recent Developments, Published by the Lurie Law Firm LLC

Race and National Origin Discrimination

Apparently, some employers haven’t gotten the message: Discrimination on the basis of race or national origin is real — and it’s wrong. It still happens more often than anyone wants to believe, and it exacts a very high price, both from its victims and from the companies at which it occurs. Lawsuits in recent years have proven this point as large companies had to pay millions of dollars to compensate the victims of race and national origin discrimination and for their own complicity in encouraging or allowing a discriminatory atmosphere to flourish in the workplace.

What Is Race Discrimination?

An employer commits race discrimination when it makes job decisions on the basis of race or when it adopts seemingly neutral job policies that disproportionately affect members of a particular race (more on this below).

Federal and most states’ laws forbid discrimination in every aspect of employment — including hiring, firing, promotions, compensation, job training, or any other condition of employment. For example, an employer discriminates when it promotes only white employees to supervisory positions, requires only job applicants of a certain race to submit to drug tests, or refuses to allow employees of certain races to deal with customers. An employer that discriminates on the basis of physical characteristics associated with a particular race — such as hair texture or color, skin color, or facial features — also commits race discrimination.

Even seemingly neutral employment criteria or policies may be discriminatory if they have a disproportionate impact on members of a particular race. For example, an employment policy requiring men to be clean-shaven may discriminate against African-American men, who are more likely to suffer from Pseudofolliculitis barbae (a painful skin condition caused and exacerbated by shaving). Or, a minimum height requirement may screen out disproportionate numbers of Asian-American and Latino job applicants.

If an employee shows that a particular policy has a disproportionate impact on members of a particular race, the employer can defend the policy by showing that there is a legitimate, important, job-related reason that necessitates the policy. For example, a height requirement might be justified if the employer can show that an employee must be at least a certain height to operate a particular type of machinery. However, an employer would be hard-pressed to justify a height requirement for a desk position.

What Is National Origin Discrimination?

An employer discriminates on the basis of national origin when it makes any employment decisions based on a person’s ancestry, birthplace, or culture, or on linguistic characteristics or surnames associated with a particular national origin group. For example, an employer who refuses to interview people with Hispanic-sounding surnames on their applications or resumes discriminates, as does an employer who won’t allow anyone with an accent to work with the public.

English-Only Rules Are Sometimes Allowed

A private employer may be able to prohibit on-duty employees from speaking any language other than English if it can show that the rule is necessary to the business. If the employer imposes an English-only rule, the employer must tell employees when they have to speak English (for example, whenever customers are present) and the consequences of breaking the rule. And if an English-only rule is challenged, courts will look closely at its scope: If an employer forbids workers from ever speaking another language, even during breaks or when a customer who speaks that language is present, the rule is probably too extensive.

Harassment Is Illegal, Too

Harassment on the basis of race and national origin is also prohibited. Harassment is any conduct based on a person’s race or national origin that creates an intimidating, hostile, or offensive work environment or interferes with the person’s work performance. Harassing conduct might include racial slurs, jokes about a particular ethnic group, physical acts of significance to a certain racial or ethnic group (for example, hanging or posting an offensive picture or object near an employee’s workspace), or even comments or questions about a person’s cultural habits.

Steps to Take If You Are Facing Discrimination

If you suspect discrimination at work, you might find yourself in one of two situations. In the first, the discrimination is obvious. If, for example, your supervisor has said that he or she will never promote members of a certain race, has used racial slurs, or otherwise has demonstrated bias against a particular racial or ethnic group, you don’t need to wonder whether race is playing a role in the supervisor’s decisions.

In the second scenario, you suspect discrimination, but the evidence isn’t as obvious. Perhaps your company has never promoted a member of a certain race. Or maybe employees who are people of color are routinely disciplined for offenses that white employees seem to get away with. In these cases there could be an explanation that does not involve race or national origin. But it’s difficult for an employee to find out the truth.

If you find yourself in either of these situations, here are a few steps you can take:

  • Take notes. Start writing down every incident or statement that is offensive — or just seems fishy. For example, you might make a log of every inappropriate comment your supervisor makes or print out any email messages or items posted on company bulletin boards that contain racial epithets. Keep track of key employment decisions that you suspect could be based on race — like how many members of a particular race have been promoted to a particular position. Make sure to date your entries and keep your notes at home or in a secure location.
  • Talk to other employees. If you have been discriminated against or harassed because of your race or national origin, chances are that you are not alone. Talk to your coworkers to find out whether they have faced similar problems — or have seen or heard of any discriminatory behavior towards other employees.
  • Take it to management. Make a complaint to someone within the company. If your company has a complaint policy, use it. Or go to the human resources department. If neither of these options is available, simply go to a high-level management official who doesn’t seem to be directly involved in the problem. Or, if you have some concerns but you aren’t sure whether discrimination is at the root of the problem, raise your concerns and ask the company to investigate the issue.
  • Contact a government agency. If your company doesn’t take any meaningful action on your complaint, you can file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC) and/or your state’s fair employment practices agency. The government agency will generally ask the employer to answer your charge and may even conduct an investigation itself. The agency can ask the employer to hand over documents and explain why certain employment decisions were made — information the company is unlikely to give you without being forced to do so.
  • File a lawsuit. If all else fails, you can bring a lawsuit charging the company with discrimination. To file a lawsuit, you must first have filed a charge with the EEOC or a state agency.For more information about race or national origin discrimination or to file a complaint, contact your local field office of the EEOC (contact information is available at or your state’s fair employment practices agency. There are time limits for filing a complaint or a lawsuit, so be sure not to miss them.

© 2010 Nolo. Reprinted with permission from the publisher, Nolo, Copyright 2009,

The information you obtain at this site is not, nor is it intended to be, legal advice, and the laws of the State of New Jersey may be different, including the requirement to file with federal or state agencies. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

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