The EEOC recently issued Proposed Enforcement Guidance to address national origin discrimination, which noted that 11% of the charges of discrimination received from the private sector allege national origin discrimination. The guidance is meant to assist EEOC’s staff investigating national original charges and EEOC lawyers instituting litigation, as well as to assist employers and employees. Once adopted, the guidance will supplant the section in the EEOC Compliance Manual addressing national origin discrimination.
National origin discrimination is discrimination against an individual because he or she (or his her ancestors) are from a certain place, and includes discrimination based on physical, cultural or linguistic characteristics of a particular national origin group or against a particular national origin group that shares a common language, culture, ancestry, race or other “social characteristics.” National origin discrimination can also apply to discrimination based on one’s citizenship. The protection extends to anyone who associates with a national origin group and includes discrimination based upon one’s perception of an individual’s national origin, even if incorrect.
The place of origin may be a country, a former country or a geographic region. The EEOC identified the United States as a country whose citizens are protected in its guidance.
Title VII protects “intersectional” discrimination or discrimination which occurs from a combination of two or more protected classes usually fused together, such as discrimination targeting Hispanic women or Asian women. Employer’s threats to report immigration status to those employees who engage in any protected activity, such as complaining of any illegal harassment, or some other form of whistleblowing, could be seen as retaliation.
The EEOC notes that the requirement of a certain language or languages for a job position should be closely scrutinized because such requirements are closely associated with national origin. Fluency should only be required if the employee must be fluent to perform job duties. Such a policy must be job related, consistent with business necessity, and narrowly tailored. Rules requiring employees to speak English in the workplace at all times are presumed discriminatory.
Employers should avoid basing employment decisions on an employee’s accent and those that do must provide evidence of a legitimate business reason to support the decision. The EEOC uses a two-pronged test to determine if the accent “interfered materially with job performance:” 1) effective spoken communication is required to perform job duties; and 2) the individual’s accent materially interferes with his or her ability to communicate in English. The employer should be prepared to show documented workplace mistakes in these kinds of cases, and may not rely on customer preferences to support employment actions based on accent.
Foreign employers in America may discriminate in favor of its own citizens when permitted by treaty or international agreement. Title VII does not protect foreign employees working outside the U.S. for a foreign company, although U.S. citizens employed by an American company outside the U.S. are protected.
The EEOC’s proposed guidance analyzes national origin under the traditional concepts of disparate impact, mixed motive, harassment, discrimination and retaliation. The guidance also discusses human trafficking in the context of forced labor. It further explains where the EEOC has agreed with courts’ interpretations of Title VII and where it has not.
The EEOC identifies “promising practices” that it encourages employers to adopt: 1) recruit in a way to attract a diverse workforce by using a variety of recruitment tools; 2) establish written criteria for hiring, promotion and assignment, as well as discipline, demotion and discharge; and 3) adopt effective harassment policies and practices.
The EEOC seeks comments on the proposed guidance by July 1, 2016. Click here to view the proposed enforcement guidance: https://www.eeoc.gov/eeoc/newsroom/release/6-2-16a.cfm