• EEOC Issues New Guidance on National Origin Discrimination
  • March 22, 2017 | Authors: Zachary A. Ahonen; Michael W. Padgett; Scott James Preston; Melissa K. Taft; Craig W. Wiley
  • Law Firm: Jackson Lewis P.C. - Indianapolis Office
  • The Equal Employment Opportunity Commission’s "Enforcement Guidance on National Origin Discrimination" highlights the agency’s enforcement emphasis and opinion of the direction the law should be headed. It is important even though the Guidance does not create legal mandates.

    The Guidance states that Title VII of the Civil Rights Act covers an employee or applicant based on actual or perceived national origin, association with others of a particular national origin, or citizenship status. Further, it states that national origin discrimination is discrimination “because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.” From the EEOC’s perspective, “place of origin” includes a country or nation, and it also can include a geographic region. With respect to an employee or applicant’s “group” or “ethnicity,” it can include a group of people sharing a common language, culture, ancestry, race, or other social characteristics. In this way, the EEOC’s definition of national origin discrimination encapsulates a broad range of circumstances.

    The Guidance notes situations in which employers should use caution to avoid running afoul of Title VII. Some of these include basing employment decisions on customer or client preferences, the desire for a “corporate look” or “image,” accents or fluency in English, citizenship status, or on an applicant’s ability to provide a Social Security Number.

    Nevertheless, most employers have legitimate business reasons for basing employment-related decisions on these factors. For example, an applicant’s citizenship status frequently is a good indicator of an individual’s ability to work legally in the United States. However, blanket hiring practices that directly or indirectly require a certain citizenship status might be discriminatory against individuals from particular countries or regions with work visas or other credentials allowing them to work in the United States legally.

    Even prepared with legitimate business reasons for their employment decisions, such reasons are a defense to an allegation of discrimination and not an exception to discrimination. Without entering a rabbit hole explaining the difference in this article, as a general matter, countering a lawsuit for unlawful discrimination with a defense is more expensive and complicated than countering a lawsuit with an exception excluding a certain action from the definition of discrimination altogether.