If national origin motivates an employment decision, that’s disparate treatment. Title VII forbids disparate treatment.
So, what if…
- nepotism motivates an employment decision, which
- involves favoring one nationality over another, then
- does national origin motivate the employment decision?
Or, put another way: could nepotism violate Title VII?
No, nepotism does not violate Title VII.
In Hiralall v. Sentosacare, LLC (opinion here), the plaintiff argued that, when the defendants engaged in a practice of hiring relatives (all of one national origin), while the plaintiff received less desirable positions, they effectively discriminated against the plaintiff (because his nationality is different). Unfortunately for the plaintiff, a New York federal court gave this argument the back of the hand:
Nepotism, in this case, is not evidence of actionable discrimination because showing a preference for one’s family members, to the detriment of several other races or nationalities, does not amount to disparate treatment against a protected class.
Curiously, the court then praised nepotism as “pernicious.”
As I was saying, while the Court blasted nepotism as pernicious, it acknowledged that “it does not constitute a form of discrimination under Title VII” because nepotism is not “motivated by racial animus” towards the plaintiff.
Nepotism is pernicious. Some may even say that it has a harmful effect, especially in a gradual or subtle way. But, while nepotism may be lawful, you can implement an anti-nepotism policy to regulate it in your workplace.