The Divided States of America: Reinterpreting Title VII’s National Origin Provision to Account for Subnational Discrimination Within the United States

From the marginalization of Native Americans to the bitter rivalry between the North and the South, discrimination within the United States is not a new phenomenon. For centuries, Americans have discriminated against one another because they come from different parts of the country. Northerners have been derogatorily referred to as “Yankees,” Southerners as “rednecks,” Appalachians as “hillbillies,” Californians as “hippies” and “Valley girls,” and Native Americans as “red skins.” Such discrimination has had particularly adverse consequences in the employment context due to the assumptions employers draw from these regional identities.

Despite the prevalence of regional animus in the United States, employment discrimination based on regional origin is currently not actionable under Title VII’s national origin provision. Rather, most courts have interpreted Title VII’s national origin provision narrowly, requiring employees to point to a sovereign country of origin in order to make out a national origin discrimination claim. The problem with this country-focused conception of national origin is that it presupposes that nations are homogeneous when, in reality, nations—especially large ones like the United States—are composed of divergent subgroups.

This Comment critiques the assumption underlying Title VII’s national origin provision—that nations are homogenous—by detailing the various forms of employment discrimination that occur within the United States. It then analyzes existing case law and notes that although courts have gradually begun to expand the scope of national origin to encompass some forms sub-national discrimination, they have only recognized such claims where employees can trace their national origin to sub-national groups in foreign countries, such as Acadians, Creoles, and Serbians as part of the former Yugoslavia. However, courts have refused to allow employees to trace their national origin to sub-national groups within the United States.

This Comment concludes by arguing that Title VII’s national origin provision should be taken one step further to include regional discrimination within the United States. This interpretation would permit Title VII to protect against the employment discrimination that occurs among individuals sharing the same American origin, while keeping national origin within geographically circumscribed limits. This Comment invites further discussion regarding the policy implications of this approach.

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