EEOC Issues New Enforcement Guidance on National Origin Discrimination

On November 18, 2016, the Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance on National Origin Discrimination (Guidance). The EEOC also issued a Questions and Answers document and a Small Business Fact Sheet to supplement the Guidance.

Background and Application

Title VII of the Civil Rights Act of 1964 (Title VII), which applies to employers with 15 or more employees, prohibits discrimination in employment based on race, color, religion, sex, and national origin. This protection against discrimination applies to applicants and employees in the United States, regardless of place of birth, authorization to work, citizenship or immigration status, and also applies to many United States employees working in foreign countries.

National Origin Discrimination Defined

The Guidance defines "national origin discrimination" 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." The Guidance addresses national origin discrimination in many forms, including based on place of birth, ethnicity and intersections with other protected statuses, such as religion and race. The Guidance cites several examples of how national origin discrimination may occur (and should be avoided) in the workplace; some of which are highlighted below.

National Origin Discrimination Protects Those Born in America

The Guidance explains that the United States is a protected place of origin. Therefore, national origin discrimination includes discrimination against American workers in favor of foreign workers.

Discriminatory Customer Preference

While customers or clients may express an aversion toward a specific ethnic group, employers cannot "rely on the discriminatory preferences of coworkers, customers or clients as the basis for adverse employment actions...." Instead, employers will be liable for such unlawful conduct, even if initiated by customers or clients. Similarly, employers cannot use a "corporate look" or "image" to make employment decisions where such practice discriminates against one or more national origins.

Language Considerations – Accent, Fluency and English-Only Rules

The number of U.S. workers who are not native English speakers has increased significantly over the last several decades. Because linguistic characteristics are so closely related to national origin, employers should be very careful when making employment decisions which may consider, or seem to consider, an employee’s accent, fluency and/or spoken language.

For example, English-only rules that require employees to speak English at all times in the workplace are generally considered unlawful under Title VII. English-only rules that require employees to speak English during specific circumstances and allow employees to speak other languages during meal and break periods are generally lawful. English-only rules, as with many requirements, must be job-related and consistent with business necessity.

Moreover, an employment decision may be based on an employee’s accent, but only if the accent "interferes materially with job performance." To meet this standard, "an employer must provide evidence showing that: (1) effective spoken communication in English is required to perform job duties; and (2) the individual’s accent materially interferes with his or her ability to communicate in spoken English."

Social Security Number Requirement

Employers must verify the identity and employment eligibility of newly hired employees, however, employees are permitted to choose which documents they present for verification purposes. Some individuals have applied for and are waiting to receive Social Security numbers. Therefore, a policy or practice that requires employees to have Social Security numbers may constitute national origin discrimination where it disproportionately screens out work-authorized individuals, such as newly arrived immigrants or new lawful permanent residents. This type of policy or practice, however, could be lawful if it is job related and consistent with business necessity.

Harassment

The Guidance explains that a "hostile work environment based on national origin can take different forms, including ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence or other offensive conduct directed toward an individual because of his birthplace, ethnicity, culture, langue, dress or foreign accent."

Best Practices

Because many characteristics are intertwined with a person’s national origin, the Guidance offers several “promising practices” employers can adopt to help avoid national origin discrimination.

For example, the EEOC cautions against the exclusive use of word of mouth hiring, which can have the effect of precluding certain types of applicants. Instead, the Guidance recommends using a variety of methods to secure a diverse pool of applicants, including newspaper ads, online posts, job fairs and posting job announcements with community based organizations.

The Guidance also recommends that employers use written, objective standards for hiring, promotion, discipline and termination, and adopt clear anti-discrimination and anti-harassment policies with complaint procedures so that employees understand that discriminatory practices are prohibited and know how to report any instances should they occur.