My earlier post on color discrimination led a reader to ask — how exactly does Title VII bar discrimination based on ethnicity? It mentions race and national origin, but those aren’t necessarily the same as ethnicity; for instance, discrimination against a third-generation Italian-American because he’s of Italian extraction might be described as neither race discrimination (since Italians are generally considered white these days) nor national origin discrimination, if “national origin” is interpreted as the place where the person was born. Ethnic (rather than religious) discrimination against Jews (for instance, refusal to hire even an atheistic Jew because he is ethnically Jewish) is even harder to describe as national origin, since ethnic Jews are generally seen as ethnically Jewish regardless of where their ancestors came from, unless you think back several millenia.
As it happens, though, the law deals with these semantic conundrums the same way it deals with many (though not all) semantic conundrums: by ignoring them. The courts have generally treated Title VII as barring ethnic discrimination; the explanation would presumably be that “national origin” does refer to ethnicity, but courts often don’t even say it that explicitly. It’s just the way the law has developed, and it’s now pretty well-settled. See, e.g., Hampel v. City of Denver, 886 F. Supp. 756 (D. Colo. 1994); East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 405 (1977); Malhotra v. Cotter & Co., 885 F.2d 1305, 1308 (7th Cir. 1989).
The Civil Rights Act of 1866 is a somewhat different story: Its prohibition on discrimination based on “race” has been interpreted as applying also to discrimination based on ethnicity — such as Jewish, Arab, etc. — see Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617 (1987) — because apparently in the late 1800s, various ethnic groups were indeed often referred to as separate “races.”
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