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In addition to the more familiar concepts of race, ethnicity, religion, disability, lawful immigration status etc., US anti-discrimination laws typically mention that it is also unlawful to discriminate based on "national origin".

What exactly is national origin and how is it different from ethnicity and immigration status? I don't see much discussion on this, and when I do, it seems to be some vague combination of:

  • Country of birth
  • Country of citizenship
  • Geographic origin of ancestors
  • The place where the person's legal last name comes from and/or where they speak the language associated with such name
  • The sociological concept known as a "nation" that fits somewhere between citizenship in a sovereign state and membership in an unorganized ethnicity. A "nation" is not necessarily sovereign, but has some level of sociopolitical character. If a person was recognized by or claimed membership in a "nation" that was distinct from both his ethnic group and country of citizenship (e.g. ethnic Arab, Palestinian national, Jordanian citizen), discrimination based on this membership would fall under "national origin" discrimination and not under any other category.
  • Some vague concept linked to or even identical with ethnicity.

For example, suppose we consider the following hypothetical person:

  • Born in New York City
  • All eight great-grandparents were born in Mexico
  • Naturalized as a Canadian citizen
  • Currently living in Montreal

What is his "national origin" under US law? US? Mexican? Canadian? Something else? Whatever he feels closest to?

To be clear, I'm not attempting to start a debate as to whether or not national origin is scientific in nature, nor whether discrimination based on national origin ought to be illegal. I'm asking if there is a standard definition of this term as used in US law, or if it is more of a catch-all term for things that are sort of like ethnicity, race, etc. but not quite.

This question was inspired by a recent event. I was taking a professional training class, and the instructor passed around a survey asking each of us to not only disclose our race and ethnicity, but also list our "national origin". I was quite surprised by this and realized that I had no idea what it really meant or how to apply it to myself - whether it was simply my country of birth, the place most of my ancestors were from, the place I most strongly associate with culturally, the place where they speak the language associated with my legal last name, or something else entirely.

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    Interesting question - but I'd add an additional twist: The "origins" of personhood are increasing be pushed toward conception (or some weeks after conception). If that is the case, then another criteria to add to your hypothetical might well be " Conceived in France"
    – BobE
    Dec 23, 2019 at 15:28
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    Historically speaking, Early 1900's US discrimination against Irish and Italians in New England (pred NYC and Boston), Scandinavians in the Upper Midwest; Middle 1900's (World War era) against Japanese and Germans; late 1900's, early 00's in Poles in England. This isn't a racial or religious discrimination, but more tribal, or one based simply on where one came from. You might think it outdated and archaic, possibly unnecessary in the 21st century, but humans are humans, and without it, other, whomever other is, can face discrimination.
    – CGCampbell
    Dec 23, 2019 at 18:30

3 Answers 3

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It is a rather vague phrase, as a paper details in going over its legislative and court history:

Generally, national origin discrimination suggests treating someone less favorably because the individual or their ancestors are from a certain place or belong to a particular national origin group. [...]

Although Title VII prohibits discrimination based on national origin, the prohibition against “national origin” discrimination remains vague and ineffective. The legislative history of the term “national origin” consists of a few paragraphs during the House debate. Initially, Congress stated its understanding of what “national origin” meant. Congressman Roosevelt made it clear that “national origin” meant the country from which a person came. He also stated that the term has “nothing to do with color, religion, or the race of an individual. A man may have migrated here from Great Britain and still be a colored person.” Congressmen Rodino and Dent further discussed instances in which “a person of a certain national origin may be specifically required to meet the qualifications of a particular job.” The Congressmen discussed a hypothetical situation where restaurants served the food of a particular nation. Within the context of a restaurant, they concluded that an individual’s national origin in the operation of a specialty restaurant serving food like a “pizza pie” could properly be an occupational qualification that is reasonably necessary to the operation of the restaurant. Additionally, Congressman Roosevelt linked language and national origin suggesting that the “national origin” definition of the statute encompassed language requirements. The debate continued in the Senate when Senator Humphrey mentioned the term “ethnic origin.” However, Senator Humphrey neither clarified the term nor differentiated it from national origin. Senator Kuchel commented briefly on the problems faced by “a Negro or Puerto Rican or an Indian or a Japanese American or an American of Mexican descent.”

Although discussion over Title VII resulted in what some consider the longest debate in Senate history, the Supreme Court has characterized the legislative history of the statutory phrase “national origin” as “quite meager.” Not only has national origin ended up in Title VII as a part of the “boilerplate” statutory language of fair employment without any meaningful definition, but Congress has also ignored accent discrimination faced by ethnic minorities.

Also

In a concurring opinion in St. Francis, Justice Brennan attempted to point out that the line between discrimination based on “race”—that is, discrimination based on “ancestry or ethnic characteristics”—and discrimination based on national origin—that is, discrimination based on “place or nation of . . . origin is not a bright one.” Brennan noted that although discrimination based on ancestry is not necessarily the same as discrimination based on national origin, the two are often identical as a factual matter.

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What exactly is "National Origin"?

29 CFR § 1606.1 - Definition of national origin discrimination.

§ 1606.1 Definition of national origin discrimination.
The Commission defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group. The Commission will examine with particular concern charges alleging that individuals within the jurisdiction of the Commission have been denied equal employment opportunity for reasons which are grounded in national origin considerations, such as (a) marriage to or association with persons of a national origin group; (b) membership in, or association with an organization identified with or seeking to promote the interests of national origin groups; (c) attendance or participation in schools, churches, temples or mosques, generally used by persons of a national origin group; and (d) because an individual's name or spouse's name is associated with a national origin group. In examining these charges for unlawful national origin discrimination, the Commission will apply general title VII principles, such as disparate treatment and adverse impact.

What is his "national origin" under US law? US? Mexican? Canadian? Something else? Whatever he feels closest to?

None of the above. In the absence of a discrimination complaint, national origin is irrelevant.

For the purpose of a discrimination complaint, it is only necessary to establish that one of the listed considerations was used as a basis for that alleged discrimination.

[T]he instructor passed around a survey asking each of us to not only disclose our race and ethnicity, but also list our "national origin".

That seems like a misuse of "national origin", where the better term may be "ancestry". One definition of ancestry being, "one's family or ethnic descent". As opposed to "national origin", for which, in the absence of context, there appears to be no definition.

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  • I have clarified my question. The question actually came up in the context where I was actually asked to put down my "national origin" on a form, and I realized that I had no idea what it meant. This was not in the context of any discrimination complaint - rather, the organization was apparently trying to gather national origin statistics so they could determine any disparate impact. That this particular data collecting effort will not yield much useful data is obvious. The question is how would one approach this if one wanted to follow "best practices" on national origin identification.
    – Robert Columbia
    Dec 23, 2019 at 16:45
  • @ColumbiasaysReinstateMonica the term nation by itself might already explain it: A nation is a stable community of people, formed on the basis of a common language, territory, history, ethnicity, or psychological make-up manifested in a common culture. Which implies, that nation-states are being destroyed by mass-migration - which does not apply to the US (which is a corporation), but only to Native Americans (in Canada, it's called "first nations").
    – user26216
    Dec 24, 2019 at 7:08
  • @MartinZeitler There are many definitions of the word and not the same ones are commonly used in various areas of the world, or even of Europe. The short paragraph cannot contain it all. In USA the country itself (and often other countries too) are called a nation.
    – Vladimir F Героям слава
    Dec 24, 2019 at 8:28
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    @ColumbiasaysReinstateMonica I imagine that only a small proportion of the people in the US have a single "national origin." But this answer identifies the key point: national origin, for the purpose of antidiscrimination law, is whatever the discriminator thinks it is. It's not even necessary for the victim actually to possess the national origin in question. If someone discriminates against someone else who has no ties to Scotland because the first person thinks the second is from Scotland, that is national origin discrimination.
    – phoog
    Dec 25, 2019 at 19:13
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To understand why anti-discrimination law needs to have a concept of "national origin" - or "national origins" (plural) as it is in UK law - take this example.

Someone (A) emigrates from Germany to France at an early age. They have now been a resident of France for 40 years, regard themselves, and are regarded by others, as French and have French citizenship.

A experiences discrimination from their employer B based on resentment of the German invasion of France in the Second World War. B doesn't like Germans or anybody who has any kind of German background.

It would be difficult to bring a discrimination claim against B based on "nationality" discrimination because A is a French citizen. It would also be difficult to bring a claim based on "ethnicity" discrimination because A regards himself, and is regarded by others, as French.

You might think that the obvious way to frame the claim would be for "racial" discrimination but there are difficulties with the whole idea of "race" when shorn of the ethnicity aspect. It is not that ideas of race do not have any points of contact with genetics - there are some correlations - but genetic differences between humans are very small and a lot of the variations do not correlate with the racial classifications popularly used. Also, for all we know, A's four grandparents might have come from France in the first place.

This is where "national origins" comes in. It covers the case of B's discrimination because Germany can be said to be - in the context - the relevant national origin. In a different context another place which could also be described as a national origin might be relevant - e.g. if A had spent half his childhood in England and B discriminated against him because he is associated with perfide Albion then England would be the relevant national origin.

"National origins", like "ethnicity" is used to analyse why someone discriminated so where someone has multiple concentric or overlapping "national origins" or "ethnicities" (or "races") you don't need to list them to bring a claim - you just ask the why question.

Of course if some bureaucrat designs a form which asks you for you "national origin" - thinking that everyone has one and only one national origin for all purposes - then that may be difficult to answer because the concept was not designed for that.

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