Is national origin in ‘eye of the beholder’? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Is national origin in ‘eye of the beholder’?

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Employees can sue if they believe they have been discriminated against based on their national origin.

But what if the employee’s family has been in the United States for generations, and she speaks without any discernable accent or speech pattern common to another nationality and looks all-American? Can she still claim national-origin discrimination because she identifies with her ancestors’ native culture and country?

Fortunately, national origin is not strictly “in the eye of the beholder.” According to one recent Texas case, employees must either prove that they do belong to a distinct national-origin group or have the “physical, cultural or linguistic characteristics of a national-origin group.”

Recent case: Joann Huffman sued her employer, the city of Conroe, alleging that it had discriminated against her based on her national origin. Her employer asked the court to make her prove she actually was what she claimed to be—of Mexican or Hispanic origin.

The trial court said Huffman had to show some tangible proof. She will have to persuade the court before trial that her parents or grandparents were Hispanic. (Her grandparents had died when her father was very young, and her father was raised by his brother, who was born in Mexico City.)

The judge will also consider Huffman’s language skills; she apparently speaks Spanish well. Huffman will also be permitted to call witnesses to testify that they perceived her as Hispanic. The judge will then decide whether she is in fact Hispanic, or if she has “physical, cultural or linguistic” traits that mark her as Hispanic even if she is not. (Huffman v. City of Conroe, No. H-07-1964, SD TX, 2009)

Final note: When faced with a national-origin claim, consider asking for proof of those origins if the employee seems not to be a member of a distinct nationality.

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