Keith Mack
Race and national origin are distinct concepts in constitutional law, with important differences in how they are defined and applied. Race typically refers to a person's genetic or biological characteristics, often associated with skin colour, while national origin relates to the country or region from which a person or their ancestors originate. While racial discrimination is often explicit and direct, national origin discrimination can be more subtle and indirect, such as policies that disproportionately harm individuals from certain nations. Both forms of discrimination are prohibited by law, with the Constitution preventing the government from treating individuals unfavourably based on race or national origin. Federal laws also explicitly prohibit discrimination in areas such as housing, credit, employment, and public accommodations. Understanding the distinction between race and national origin is crucial for recognising and addressing discriminatory practices and ensuring equal protection under the law.
| Characteristics | Values |
|---|---|
| Definition of "race" | A person's actual or perceived race |
| Definition of "national origin" | The country, world region, or place where a person or their ancestors come from; a person's limited English proficiency or English learner status; or a person's actual or perceived shared ancestry or ethnic characteristics |
| Discrimination based on race | Illegal |
| Discrimination based on national origin | Illegal |
| Race-based discrimination examples | Refusing to hire anyone with a criminal record disproportionately hurts Black and Latine job applicants; automated tools used by employers to evaluate resumes may base their evaluation on information that directly correlates with the job applicant's race |
| National origin-based discrimination examples | Denial of equal opportunity because a person or their family are from another country; being charged higher interest rates and fees than similar applicants based on national origin; police pulling over cars driven by Latinos for certain traffic violations but rarely pulling over white drivers for the same violations |
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What You'll Learn
Racial discrimination in employment
Additionally, the use of automated tools and AI in hiring processes has raised concerns about discrimination. These tools may evaluate resumes based on information correlated with an applicant's race, such as names or extracurricular activities, leading to biased outcomes. Furthermore, personality assessments and cognitive ability tests used during hiring may unfairly screen out candidates based on race and protected characteristics, such as disability.
To address racial discrimination in employment, individuals can file complaints with the Equal Employment Opportunity Commission (EEOC). It is important to gather and document evidence, such as emails, text messages, application forms, and timelines of events, to support claims of discrimination. Employers should also adopt "best practices" to reduce the likelihood of discrimination and promote equal employment opportunities. This includes ensuring that job requirements are uniformly applied and are necessary for job performance, as well as refraining from using pre-employment questions about race unless for affirmative action purposes or applicant flow tracking.
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Discrimination in housing
Housing discrimination in the United States refers to historical and current barriers, policies, and biases that prevent equitable access to housing. The Constitution prevents the government from subjecting individuals to worse treatment because of their race, ethnicity, or national origin. Federal anti-discrimination laws also prohibit discrimination in housing, credit, employment, and "public accommodations" like restaurants, movie theatres, parks, and trains.
The Fair Housing Act, enacted as Title VIII of the Civil Rights Act of 1968, was the federal government's first concrete step towards deeming all types of housing discrimination unconstitutional. The Act introduced meaningful federal enforcement mechanisms and prohibited housing discrimination practices such as filtering information about a home's availability, racial steering, blockbusting, and redlining. It also explicitly prohibited discrimination based on race, colour, religion, sex, and national origin. In 1988, disability and familial status were added to the Act, and it now includes further protections for persons with disabilities. The Department of Housing and Urban Development (HUD) is the federal executive department with the authority to administer and enforce the Fair Housing Act.
The prohibition against "national origin" discrimination remains vague and ineffective. While it typically refers to the country from which a person came, it has been described as having nothing to do with an individual's colour, religion, or race. Discrimination based on national origin can be difficult to define and identify, as it may be a combination of factors, including a person's name, language, and cultural associations.
Despite legal protections, housing discrimination still exists, and the resulting segregation has led to wealth, educational, and health disparities. Studies have shown that housing discrimination and redlining in the United States have had wide-ranging impacts on society, contributing to housing inequality and educational inequality.
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Discrimination in public accommodations
Prior to the enactment of the Civil Rights Act, many states had already prohibited discrimination in public accommodations, with 31 states having such laws by 1964. These laws often protected against discrimination based on race, gender, ethnicity, and religion. Today, 45 states have anti-discrimination laws for non-disabled individuals, and 19 states specifically prohibit discrimination based on age.
However, it is important to note that federal law does not explicitly protect gay and transgender individuals from discrimination in public accommodations. Additionally, while private clubs and religious organizations are exempt from federal anti-discrimination laws, some states have implemented their own protections for breastfeeding in public and non-discrimination based on sexual orientation or gender identity.
The prohibition against discrimination in public accommodations extends beyond federal and state laws. For example, the Equal Employment Opportunity Commission investigates complaints of discrimination in employment, and city, town, or tribal civil or human rights agencies may also offer protection.
In conclusion, discrimination in public accommodations is prohibited at various levels of government in the United States. While progress has been made since the Civil Rights Act of 1964, there are still gaps in protection for certain marginalized groups, particularly the LGBTQ+ community, who may still face legal discrimination in public accommodations in certain states.
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Discrimination in lending
In the United States, borrowers are protected by federal laws such as the Equal Credit Opportunity Act (ECOA) and the Fair Housing Act (FHA). The ECOA ensures that individuals have an equal opportunity to obtain credit, regardless of their protected characteristics. It applies to banks, financial institutions, credit card companies, and any entity involved in granting credit. The ECOA specifically prohibits creditors from discriminating based on race, colour, religion, national origin, sex, marital status, age, or the receipt of public assistance income.
The Fair Housing Act, another crucial federal law, specifically addresses mortgage lending. It prohibits lenders from discriminating in housing sales or loans based on race, religion, colour, national origin, sex, familial status, disability, or other protected characteristics. This law ensures that individuals are not unfairly denied the opportunity to obtain housing loans due to their membership in certain protected groups.
Overt discrimination, one form of lending discrimination, occurs when a lender openly treats an applicant differently based on a prohibited characteristic. For example, a lender may explicitly deny a loan application from an individual of a particular race or impose more stringent requirements on borrowers of a specific religion. Such practices are blatant violations of the ECOA and the FHA.
Additionally, lending discrimination can take on a more subtle form known as disparate impact or discriminatory effect. This occurs when a lender applies a neutral policy or practice to all credit applicants, but the policy disproportionately excludes or burdens individuals based on a prohibited characteristic. For instance, a lending policy that relies solely on credit scores may disproportionately affect individuals of a certain race or national origin, as they may face systemic barriers in building good credit. In such cases, even without evidence of discriminatory intent, the policy is still considered discriminatory and in violation of fair lending laws.
If individuals suspect they are victims of discriminatory lending practices, they are advised to consult an attorney experienced in discrimination issues. These legal professionals can help individuals understand their rights, navigate the complexities of lending discrimination, and take appropriate legal action to assert their rights. By seeking legal counsel, individuals can protect themselves from unfair treatment and hold lenders accountable for their discriminatory practices.
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Racial and national origin harassment
While the US Constitution prevents the government from subjecting individuals to worse treatment because of their race, ethnicity, or national origin, racial and national origin harassment remains prevalent. This type of harassment is defined as unwelcome verbal, written, or physical conduct based on an individual's actual or perceived race, colour, or national origin. It interferes with an individual's work or academic performance, adversely affects their work or learning opportunities, or creates an intimidating, hostile, or offensive environment.
In the context of educational institutions, colleges and schools receiving federal financial assistance are prohibited from discriminating based on race, colour, or national origin under Title VI of the Civil Rights Act. This includes responding to instances of discrimination or harassment that limit students' ability to benefit from educational programs and activities. Consequences for students found in violation of the harassment policy can include counselling, written warnings, probation, fines, and, in more serious cases, suspension or expulsion.
In the employment realm, federal anti-discrimination laws prohibit discrimination in housing, credit, employment, and "public accommodations" like restaurants, movie theatres, parks, and trains. However, racial discrimination in hiring can occur through the use of automated tools that evaluate resumes based on information correlated with the applicant's race. Additionally, policies such as blanket exclusions of individuals with criminal records can disproportionately harm applicants of specific races or ethnicities, amounting to illegal "disparate impact" discrimination.
To address racial and national origin harassment, individuals can gather evidence, including documents, emails, and witness testimonies, to support their claims. They can then submit complaints to relevant government agencies, such as the Equal Employment Opportunity Commission, or seek legal recourse through state or federal courts. It is important to note that retaliation against individuals who report incidents of harassment is prohibited, and protective measures are in place to ensure a supportive environment for those filing complaints.
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Frequently asked questions
Race refers to a person's actual or perceived race, colour, or skin tone. National origin refers to a person's birthplace, ancestry, culture, or language.
Yes, federal laws in the US prohibit discrimination based on race, colour, and national origin. These laws include Title VI, which applies to any entity that receives federal financial assistance, and Title VII. State and local laws may also provide protection against discrimination on the basis of race and national origin.
Discrimination based on race and national origin can take many forms, including housing and employment policies that disproportionately harm individuals of a particular race or national origin. It can also include racial slurs, taunts, stereotypes, or physical threats.
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