• EEOC Issues Enforcement Guidance on National Origin Discrimination
  • December 19, 2016
  • Law Firm: Shawe Rosenthal LLP - Baltimore Office
  • The Equal Employment Opportunity Commission has issued its Enforcement Guidance on National Origin Discrimination, replacing the section of its 2002 Compliance Manual on this topic. This document summarizes the EEOC’s position on various national origin discrimination issues and provides suggestions for employers on avoiding or minimizing national origin discrimination claims.

    What is National Origin Discrimination? The Guidance first defines national origin discrimination under Title VII as “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. “National origin” may refer to a country, former country, or geographic region. It also includes the sharing of a common language, culture, ancestry, race, and/or other social characteristics. It does not include citizenship or immigration status.

    The EEOC makes clear that discrimination based on national origin is prohibited by Title VII. In addition, the EEOC takes the rather aggressive position that it is illegal to discriminate against an individual based on his/her association with someone of a particular national origin, or the employer’s perception or belief about the individual’s national origin, even if that perception or belief is incorrect.

    The Guidance further notes that national origin discrimination frequently overlaps with other forms of discrimination, such as race, color or religion. Specifically, Title VII prohibits “intersectional” discrimination, i.e., discrimination that is based on a combination of two or more protected characteristics.

    What Employment Decisions Are Covered? The Guidance notes that Title VII applies to all employment decisions, including: recruitment; hiring; promotions; work assignments; segregation and classification; transfer; wages and benefits; leave; training and apprenticeship programs; discipline; layoff and termination; and other terms and conditions of employment. More specifically, the Guidance provides examples of discriminatory employment decisions, such as complying with discriminatory customer preferences or assigning workers to back room or non-customer contact jobs.

    Of note, the EEOC states that staffing firms, including temporary agencies and long-term contract firms, and host companies (who use the staffing firm’s services) may be liable as joint employers under Title VII for national origin discrimination, if each exercises sufficient control over a worker’s terms and conditions of employment.

    Another issue addressed by the EEOC is the Form I-9 employment verification process and Social Security numbers (SSN). The Guidance provides that Social Security cards are not required to establish identity and employment eligibility as part of the I-9 process; the employee may choose which documents to present. While an SSN is eventually required for IRS purposes, the EEOC notes that both the Social Security Administration and the U.S. Citizenship and Immigration Services provide that newly hired employees should be allowed to work if they have applied for but not yet received an SSN.

    What is National Origin Harassment? When harassment based on national origin is so severe or pervasive that it alters the conditions of the individual’s employment, it violates Title VII. According to the Guidance, national origin harassment can take the form of ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence or other offensive conduct based on an individual’s birthplace, ethnicity, culture, language, dress or accent. These actions may be taken by supervisors and employees, as well as non-employees such as clients, customers, or commercial contacts.

    Language Issues in the Workplace. The EEOC notes that decisions based on language must be carefully scrutinized to ensure they do not violate Title VII. There are several different situations involving language that can arise in the workplace. According to the Guidance, an employment decision based on accent is legitimate only where the accent “interferes materially with job performance.” A job requirement based on English fluency, or fluency in some other language, is permissible only if it is needed for the effective performance of the specific job position in question. The EEOC reiterates its longstanding position that English-only policies that apply at all times are presumed to violate Title VII. An employer may require the use of only English in limited circumstances to ensure safe and efficient job performance or business operations.

    Citizenship Issues. Discriminating on the basis of citizenship can also constitute national origin discrimination. The Guidance states that Title VII applies regardless of immigration status or authorization to work (although immigration laws prohibit employers from hiring those not authorized to work). The Guidance further notes that other federal laws also prohibit discrimination based on citizenship, immigration status, and national origin, including the Immigration and Nationality Act, the Fair Labor Standards Act, and special Visa programs.

    Foreign Employers in the U.S. and U.S. Employers in Foreign Countries. The Guidance notes that Title VII applies to foreign employers doing business in the U.S. unless they are exempted by treaty or international agreement. It further notes that Title VII also applies to American employers doing business in other countries, unless compliance with Title VII would violate the laws of that country. In addition, U.S. citizens working abroad are protected by Title VII if the foreign employer is controlled by an American employer.

    Reasonable Accommodations? The Guidance makes an important point - buried in a footnote - about reasonable accommodations. Although Title VII requires an employer to provide reasonable accommodations for religious practices, an employer is not required to provide reasonable accommodations for national origin traditions or practices. Given the potential overlap between the two, however, employers should be careful in handling such reasonable accommodation requests.

    “Promising Practices.” The Guidance also sets forth suggested policy, training and organizational changes for employers to consider implementing, noting that there is no single best approach for every workplace or circumstance. The Guidance also acknowledges that implementation of these suggestions “will not insulate an employer from liability or damages” but may help minimize the risk of violations. These suggestions include the following:

    - Using a variety of recruitment methods, so as to avoid inadvertent exclusion of some national origin groups. These methods include: general and specialized newspapers, online postings, job fairs and open houses; public postings with a wide variety of community-based organizations and widely-distributed sources; outreach through professional associations and search firms; recruiting from internship and scholar programs; and in-person referrals.

    - Stating “equal opportunity employer” in job advertisements, and setting forth required qualifications, including language, in such advertisements.

    - Establishing objective criteria - tied to business needs - for employment decisions, communicating the criteria to applicants and employees, and applying the criteria consistently.

    - In job interviews, asking similar questions of all applicants and limiting the questions to matters related to the job in question.

    - Discussing the selection process with hiring managers and holding them accountable for non-discriminatory hiring.

    - Establishing a progressive discipline policy that will communicate conduct and performance standards to employees and provide them with the opportunity to improve.

    - Where other languages are spoken in the workplace, ensuring that policies are communicated effectively to all employees. This could include translating policies and conducting training in other languages.

    - Documenting business reasons for employment actions and communicating those to the affected employees.

    - Monitoring inexperienced managers and encouraging them to consult with more experienced managers.

    - Clearly communicating the company’s anti-harassment position through policies and other actions. Ensure that employees with limited English are trained on the policies and are provided with practicable avenues to make confidential complaints.

    - Training managers to address situations before they escalate into actionable harassment.

    The EEOC also released a question-and-answer publication on the Enforcement Guidance and a small business fact sheet summarizing the Guidance.